text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
SMITH, J.
This suit was instituted by Batte Brothers, a copartnership composed of A. W. and C. W. Batte, to recover of J. J. Battle damages on account of an alleged breach of a contract. The jury found for the defendant, and plaintiffs have appealed, and in referring to the parties we shall employ the designations used in the briefs and will refer to appellants as plaintiffs and to appellee as the defendant.
The material portions of the contract are as follows:
“That, for the consideration hereinafter mentioned, said party of the first part hereby sells to the parties of the second part all of the cypress lumber cut from all the merchantable cypress timber on the White, Vain Etten' and Read tracts of land, estimated at one million feet mill run, more or less, said lumber to be cut from straight logs twelve inches and over in diameter, and of standard length. The party of the first part agrees to guarantee the logs to run as good grade as the trees inspected by the party of the second part on the mill yard.
“It is further agreed that said party of the first part will cut and deliver f. o. b. Fulton, Arkansas, at least one hundred thousand feet per month, unless hindered or prevented by some unavoidable casualty or weather.
“It is further agreed that said party of the first part will cut said lumber in accordance with specifications to to be furnished by the parties of the second part.
“The parties of the second part agree to pay the party of the first part the sum of twenty dollars per thousand feet, cash on ten days’ sight draft, mill run, for said lumber when delivered in accordance with specifications f. o. b. and loaded on cars at Fulton, Arkansas.” It was alleged in the complaint that defendant failed and refused to cut and deliver the lumber, and plaintiffs offered testimony in support of that allegation. The case was tried upon the theory that this failure was due to an advance in the price of the lumber over that named in the contract, and much conflicting testimony was offered in regard to the market value of this lumber. On the other hand, the defendant alleged that plaintiffs were to furnish specifications for cutting the lumber but failed to furnish any specifications therefor, and that plaintiffs failed to pay for and receive the lumber which was sawed under the contract or to make the advances thereon which the contract called for.
The real and controlling question in the case was, who breached the contract? Which of the parties failed to perform? And that question of fact was resolved against plaintiffs by the verdict of the jury in favor of defendant.
As tending to support their contention that defendant had refused to manufacture the lumber, plaintiffs offered testimony to the effect that lumber had advanced in price, and that defendant failed to perform the contract on that account. It is also said that the enhancement of the market price of the lumber over its contract price furnished the measure of damages for the alleged breach, and that error was committed at the trial in the admission and exclusion of testimony bearing on that fact. Upon the issue thus joined the court instructed the jury as follows:
“If you find from the preponderance of the evidence in this case that the defendant fáiled or refused to furnish the lumber to the plaintiffs as set-out in the contract, and that the plaintiffs have suffered -any damage on account of such alleged breach of contract, you will find for the plaintiffs. Under the terms of the contract sued on, it was the duty of the plaintiffs to furnish the defendant with specifications of the lumber that was to be cut by the defendant furnished to the plaintiffs. If you find that the plaintiffs failed or refused to furnish the specifications for the lumber to be cut by the defendant, then the plaintiffs can not recover, or, if you find that the plaintiffs themselves abandoned the contract sued on, and that, on account of such abandonment of the contract, the contract was not fulfilled by the defendant, then you can not find for the plaintiffs.”
Other instructions elaborated the idea that the right to recover existed if the jury found the fact to be that plaintiffs performed or offered to perform their part of the contract, while the defendant failed or refused to perform. And other instructions told the jury what the measure of damages would be in the event a right of recovery was found to exist.
No objection is urged to any of the instructions given, and it would, therefore, be academic to determine whether error was committed in the admission or exclusion of testimony which went only to the question of the amount of damages to be recovered when the jury had found against plaintiffs’ right to recover at all but for plaintiffs’ contention that the jury might have found otherwise on the main question of fact but for the alleged errors in the admission and exclusion of testimony tending to show there had been an enhancement in the value of the lumber. In other words, that, if plaintiffs had been properly permitted to show the increased market value of the lumber over the contract price, it would have appeared to the jury that it would have been profitable to the plaintiffs to have the contract performed and correspondingly unprofitable to the defendant to perform it, and the jury would, therefore, have the more 'readily believed their testimony .that they furnished specifications for sawing the lumber and otherwise offered to perform the contract, and would more readily have disbelieved defendant’s testimony that this was not done. Assignments of error which raised this question will, therefore, be considered.
The first of these assignments of error is that the court refused to permit plaintiff C. W. Batte and one K. P. Hicks to testify as to certain offers which had been made to them to buy portions of the lumber in question. If the competency of this testimony were conceded as an abstract proposition, it does not follow that error was committed here by its exclusion, for this would have been only one circumstance to show the market value, .and the court did not refuse to permit the witnesses who would have given this testimony to state what the market value was. Moreover, this offered testimony related only to the higher grades of the lumber winch would have been cut under the contract, and did not include the “mill run” of lumber for which the contract called.
A witness named Bailey was permitted to testify as to the market value of the lumber in question, and he based his opinion on an examination of a hundred or more logs which he found on the yard the day before he gave his testimony, the objection being that the witness did not know and did not undertake to state that these logs were about an average. But other instructions supplied that testimony. Substantially the same objection was made to the testimony of witness Beloe. But what we have said about the testimony of Bailey is equally applicable to that of Beloe.
A witness named Hicks was permitted to testify as to the market value at the contract place of delivery (the mill) by figuring the freight from the mill to the nearest established markets. Other witnesses had testified that there was no market for this lumber at the mill, and it was, therefore, competent to show what the cost of transportation of the lumber would have been by deducting this cost from the price obtainable at the established market to arrive at the market value at the point of shipment. Arkansas Short Leaf Lbr. Co. v. McInturf, 134 Ark. 284.
Exceptions were saved to certain testimony in regard to the quantity of timber. But this can not be of importance if there was no right to recover damages, a fact which the jury evidently must have found.
No prejudicial error appearing, the judgment is affirmed. | [
-12,
123,
-72,
-116,
24,
-32,
104,
-104,
31,
-63,
100,
83,
-35,
39,
9,
47,
-91,
93,
117,
122,
68,
-109,
31,
103,
-46,
-109,
-13,
-59,
-72,
-53,
-83,
-34,
76,
124,
-54,
-51,
-30,
-62,
-51,
-100,
94,
-128,
-87,
-20,
-43,
113,
56,
-17,
22,
67,
49,
12,
-5,
44,
17,
75,
76,
60,
-25,
56,
-15,
121,
-80,
29,
45,
23,
-79,
102,
-104,
17,
72,
76,
-112,
49,
-120,
-56,
115,
-76,
-58,
124,
33,
-87,
8,
98,
102,
0,
-39,
-57,
88,
-16,
47,
-2,
-103,
-90,
-127,
120,
3,
88,
-66,
-98,
124,
16,
-74,
122,
-11,
77,
-107,
104,
-121,
-113,
-12,
-93,
-113,
36,
28,
23,
-22,
-82,
50,
112,
-33,
-86,
92,
71,
48,
-101,
-114,
-5
] |
WOOD, J.,
(after stating the facts). There is no error in the ruling of the court. The judgment of June 3,1918, became final upon the adjournment for that term, and the conrt had no further control or jurisdiction over it except by nunc pro tunc proceedings to make thé record speak the truth, or to modify or vacate the judgment or grant a new trial upon statutory grounds. Sections 4431 and 6220, Kirby’s Digest. The court exercising its jurisdiction to modify and vacate judgments erroneously set aside the judgment of June 3, 1918. But the court re-entered this judgment, and from this judgment of re-entry is this appeal. There is no bill of exceptions, and therefore no showing by the appellant that the court erred in re-entering the judgment of June 3, 1918, which it had previously set aside.
The burden was upon appellant to show that the court erred in re-entering the judgment of June 3, 1918. See Incorporated Town of Corning v. Thompson, 113 Ark. 237, and other cases cited in appellee’s brief.
Moreover, even if this could be treated as an appeal from a trial had and judgment entered on the issues joined for the first time October 8, 1918, still that judgment could not be reversed for several reasons. No errors appears on the face of the judgment. In the absence of a bill of exceptions identifying and bringing into this record the evidence upon which the court based its findings, we must presume that every fact necessary to sustain the finding and judgment of the court was established by the evidence. Knights of Pythias v. Bond, 109 Ark. 543.
Even if the record showed' that the motion for new trial was filed, passed upon, and overruled (which it does not) still, in all cases except where the face of the record shows error a bill of exceptions as well as a motion for new trial is necessary. The latter does not take the place of the former. DeQueen S Eastern Rd. Co. v. Pigue, 135 Ark. 499, and cases cited.
The judgment is, therefore, affirmed. | [
-14,
-16,
-48,
-81,
59,
32,
32,
-98,
70,
-127,
39,
83,
-81,
83,
16,
127,
-59,
109,
85,
98,
-44,
-73,
22,
99,
-77,
-77,
-61,
-43,
49,
109,
-10,
114,
76,
32,
66,
-107,
70,
66,
-43,
86,
-114,
-114,
-104,
77,
-39,
64,
48,
125,
24,
9,
117,
-2,
-93,
46,
-100,
-57,
105,
40,
-55,
121,
88,
-72,
-110,
13,
111,
4,
49,
54,
-100,
-121,
88,
-84,
-124,
57,
17,
-8,
115,
-76,
-121,
85,
37,
57,
40,
98,
98,
-127,
93,
-17,
-72,
-72,
38,
124,
-115,
-89,
-112,
48,
-55,
39,
-74,
-67,
85,
18,
38,
110,
-20,
-59,
29,
52,
1,
-114,
-108,
-73,
-97,
56,
-72,
35,
-21,
-93,
48,
112,
-52,
-52,
92,
-60,
18,
-69,
-98,
-44
] |
HART, J.,
(after stating the facts). Tt appears from the record that the administrator of the estate of John Fulson, deceased, brought suit against the railroad company for negligently causing the death of said John H. Fulson, while in its employ as a locomotive engineer. Jo Johnson was his attorney under a contract executed by himself and the administrator. The administrator. in succession discharged Johnson and dismissed the action brought by him. The administrator then instituted a friendly suit against the railroad company for the purpose of effecting a compromise with it and, pursuant to their agreement, a judgment was rendered against the railroad company for $10,000. Johnson claims that, the suit having been settled without his consent, he is, under our statute, entitled to recover his compensation as an attorney from the railroad company as declared in St. L., I. M. & S. R. Co. v. Hays & Ward, 128 Ark. 471.
The contract under which he seeks to recover is set out in our statement of facts and need not be repeated here.'
The circuit court was of the opinion that the contract sued on was not ambiguous and should be construed by the court. It was held that the contract on its face showed that the administrator was entitled to recover $10,000 before the attorney was entitled to recover anything; and that, the administrator, having compro mised with, the railroad company for $10,000 by recovering an agreed judgment rendered against it for that amount, as he had a right to do, Johnson was not entitled to recover anything against the railroad company. This holding was in the application of the well known rule that parol testimony is not admissible to contradict, vary, add to, or take from the terms of a written contract. This brings us to a consideration of the question of whether or not the language of the contract rendered it ambiguous or uncertain in its terms; for it is well settled that when the written instrument when applied to its subject-matter shows a latent ambiguity parol testimony of the facts and circumstances surrounding its execution may be given to clear away its uncertainty.
This doctrine has been repeatedly announced by this court and several of our earlier decisions on the subject are cited in the late case of Brown & Hackney, Incorporated v. Daubs, 139 Ark. 53. Indeed the rule is well settled in the text books and in the adjudicated cases elsewhere. The only difficulty is in its application to the facts of a given case. It is not contemplated by this rule that a written contract can be added to or subtracted from by evidence of surrounding circumstances. 'But as said in United Iron Works v. Outer Harbor Dock & Wharf Company, 168 Cal. 81, this rule of evidence is- invoked and employed only in cases where upon the face of the contract itself there is doubt and the evidence is used to dispel that doubt, not by showing that the parties meant something other than what they said, but by showing what they mean by what they said.
In the application of this rule to the case at bar, the majority of the court is of the opinion that when the contract, which is the basis of this lawsuit, is read and considered from its four corners, it is uncertain whether the words, “My part to be not less than $10,000” in the first part of paragraph seven refer exclusively to the compromise to be attempted and effected before suit was to be instituted as contended by counsel for Johnson, or whether they mean that no fee was to be received by Johnson unless a recovery in excess of $10,000 was had against the railroad company. It will be observed that under paragraph five of the contract, it is provided that the attorney is to have as his compensation one-half of the amount recovered, in the event of a recovery. When the provisions of this and other paragraphs are read in the light of each other and paragraph seven, it is uncertain whether the words “My part to be not less than $10,000” in the beginning of paragraph seven refer to the compromise provided for in that paragraph, or mean that in no event, regardless of whether a compromise was effected, should the attorney be allowed any compensation unless the amount recovered be more than $10,-000. It is conceded by counsel for both parties that the latter part of paragraph seven was inserted in the contract for the purpose of giving the administrator four or five days within which he might effect a compromise with the railroad company before suit was instituted under the contract. The words, ‘ ‘ My part to be not less than $10,-000,” are in the beginning of this paragraph and they may or may not refer exclusively to the compromise provided for in this section.
It appears from the records that these words are in the handwriting of the attorney and that the succeeding words of the paragraph are in the handwriting of the administrator, while the remainder of the contract is on a printed form. Hence it is insisted that in case of conflict, the written part of the contract should control that part which is in print. This does not solve the doubt. The uncertainty is whether the words in question refer exclusively to the compromise provided for in the paragraph in which they are written, or are to be considered a limitation of the right of the attorney to compensation under paragraph five. Therefore, a majority of the court is of the opinion that the trial court erred in holding that the contract was not ambiguous or uncertain, and in not admitting parol testimony of conversations and negotiations had between the parties at the time of the execution of the writing which served to eon strue the latent ambiguity in the contract in tbe respects pointed out above.
In Davis v. Webber, 66 Ark. 190, tbe court held that a stipulation in a contract for an attorney’s fee for prosecuting a suit that the client shall not settle the suit without the attorney’s consent is void as against public policy ; and that if such stipulation is not severable from the rest of the contract, but is an inducement for entering into it, the entire contract is void. Counsel for the railroad company invoke this rule to defeat the attorney in his right to recover in this case. We do not think that rule has any application to the contract sued on.
The particular parts of the contract relied upon to support counsel’s contention are paragraphs four and six. In the former, the attorney is given the power to conduct, manage and settle the case by suit or otherwise, with the right to employ assistant counsel and expert witnesses. In the latter paragraph, it is reiterated that the client is not in any way to interrupt the attorney’s management of the case. The clauses in question are not fairly susceptible to the construction that they prohibit the administrator from making a settlement without the consent of Johnson. Indeed, it appears from the whole contract that such was not the case. The contract is in the record. It shows on its face that there was a printed clause which had for its object the prohibition of the administrator from making a settlement without the attorney’s consent, and this clause was marked by the parties before the contract was signed.
It is next insisted that the contract is champertous and void because it contains a provision binding the attorney to pay the costs of the litigation. On this point it may be said that under the terms of the contract the attorney was bound to advance the costs of the suit, and in the event of recovery, such costs were to be deducted from the amount recovered, and the attorney was to get one-half of the remainder as his fee; and in the event of a failure to recover in this action, the attorney agreed to lose the money he had advanced for expenses of litigation and to charge no fee.
Authorities which adhere rigidly to the common law with respect to the doctrine of champerty and maintenance are cited by counsel in support of their contention. We do not deem it necessary to cite or review these cases; for this court has held that the common law in regard to the offense of champerty has never prevailed in this State. In the early case of Lytle v. State, 17 Ark. 608, hi a syllabus prepared by Judge Scott, who also delivered the opinion, it is said that an attorney at law may purchase his client’s interest in the subject-matter of the suit, in consideration of services rendered and to be rendered in the prosecution of the suit, and become bound for the costs in the prosecution of his own and client’s rights, without the violation of any law of champerty in this State. In the opinion, the learned Justice referred to the fact that under the English law there was a total incapacity in counsel to make any contract whatever with his client for his professional services, while in this State the right of making contracts is a high personal privilege of the citizen, which could be claiméd by lawyers as well as by any other classes of citizens.
In the later case of Davis v. Webber, 66 Ark. 190, the court again held that a contract between an attorney and client, allowing the former a contingent interest in the subject-matter of litigation as compensation for his professional services, is not void for champerty, though the courts will scrutinize such a contract closely to see that the attorney has» taken no unjust or unfair advantage of his client. In Davis v. Webber, supra, the court referred to the fact that in Lytle v. State, supra, the court had traced the origin and reviewed the history, of the law of maintenance and champerty as enacted into statutes and declared by the courts of England. Continuing, the court said: “The conclusion reached was that such 1-aws were not applicable to contracts between attorney and client providing remuneration to the attorney for services rendered his client in conducting litigation. The English rule avoiding such contracts upon the ground of maintenance and champerty was repudiated, as repug nant to our Constitution and statutes, and the court showed and anight have added, that such a rule was contrary to the genius of our institutions.”
In discussing the question in 11 C. J., pp. 242 and 243, it is said that in the States in which the common law doctrine of champerty and maintenance has not been adopted, it is nothing contrary to law, morals or public policy in a contract by an attorney to recover land or other property for an interest in it, even though he also agrees to pay the costs and expenses; and Lytle v. State, 17 Ark. 608, is the first case cited in support of the text.
There was an early statute passed in the State of Michigan directed against champerty and maintenance. The statute was in reality but an affirmance of the common law. Subsequently a statute was passed providing that the compensation of attorneys might be fixed by agreement between them and their clients and further providing that all laws in conflict with it should be repealed. It was held that this statute repealed the earlier one prohibiting champerty and maintenance, and that under it, a contract between an attorney and his client that the attorney should pay all costs incurred on account of bringing an action, in case he failed to recover anything, was valid. Wildey v. Crane, 63 Mich. 720, 30 N. W. 327, and Lehman v. Detroit etc. R. Co. (Mich.), 147 N. W. 628.
In Brown v. Bigne (Ore.), 27 Pac. 11, 28 A. S. R. 752, 14 L. R. A. 745, it was held "that the doctrine of champerty is directed against speculation in lawsuits and to repress the gambling propensity by buying up doubtful claims; that it is not and never was intended to prevent persons from charging the subject-matter of the suit in order to obtain the means of prosecuting it. It has been said that such statutes have been passed so that the'doors of justice shall not be shut to the poor, who may be oppressed, or to those who have no other means of prosecuting their suits except the subject-matter of them.
Our Legislature lias passed an act providing that the compensation of an attorney is governed by agreement and also providing for an attorney’s lien and its enforcement. Acts 1909, p. 892. Under this statute and applying the principles of law above announced, a majority of the court is of the opinion that contracts like the one under consideration are valid and binding obligations where they are entered into in good faith. In the case at bar, there is nothing in the contract itself and no extrinsic facts in the record tending to impeach the integrity of the contract.
From the views expressed, it follows that the court erred in not receiving parol evidence as to the meaning of the contract as indicated in the opinion; and in not submitting this question to the jury.
If the jury should find that Johnson is entitled to recover, he will be only entitled to recover one-half of the amount recovered by the administrator, after deducting the expenses and costs as provided in paragraph five of the contract. See St. L., I. M. & S. R. Co. v. Kirtley & Gulley, 120 Ark. 389.
For the error indicated, the judgment must be reversed and the cause will be remanded for a new trial. | [
-80,
105,
-36,
-81,
-102,
96,
42,
-118,
117,
-29,
103,
83,
-17,
-98,
8,
39,
-10,
123,
113,
43,
85,
-93,
83,
2,
-46,
-109,
-14,
-59,
49,
79,
-32,
-33,
77,
32,
74,
-43,
-30,
74,
-63,
84,
-118,
32,
-8,
-24,
-103,
96,
48,
57,
20,
94,
17,
-98,
-13,
46,
25,
67,
109,
46,
127,
-95,
-16,
48,
-118,
-123,
109,
0,
-111,
68,
-100,
3,
88,
46,
-120,
53,
0,
-68,
115,
54,
-58,
-12,
43,
-119,
8,
98,
102,
32,
65,
-25,
-12,
-104,
46,
-86,
-113,
-89,
-110,
8,
107,
13,
-74,
-99,
112,
16,
-89,
-2,
-28,
92,
29,
36,
1,
-113,
-106,
-93,
63,
100,
-98,
3,
-17,
3,
36,
116,
-52,
34,
92,
39,
58,
-101,
-113,
-84
] |
MoCULLOCH, C. J.
This is an action instituted by appellees in the chancery court of Lafayette County against appellant in which the court was asked to declare a certain deed of conveyance in absolute form to be a mortgage and to allow redemption therefrom.
The lands in controversy aggregate 1,242 acres, of which a large portion is in cultivation and they were originally owned and occupied by appellee, Paul M. Booker. His wife, Martha E. Booker, joined with him in this suit. On December 11, 1913, appellees conveyed the lands to appellant by deed absolute in form reciting a considera tion of “the sum. of one dollar and other valuable considerations.” It is alleged that this deed, though absolute in form, was intended by the parties as a mortgage. ‘Appellees had previously mortgaged the land to the American Investment Company to secure indebtedness to that concern, and also to the Windsor Trust Company to secure a large debt. The first mentioned mortgage had been foreclosed by decree of the chancery court and the statutory period of redemption had expired and a deed had been executed by the court’s commissioner to W. B. Paschal, the purchaser, about two months before the execution of the deed by appellees to appellant. Paschal held title under his deed at the time of the conveyance, to appellant and had also purchased the land'under a foreclosure decree rendered by the chancery court of Lafayette County to enforce levee taxes due the improvement district known as the Long Prairie Levee District. The time for redemption under that sale had, too, expired and Paschal had received his deed from the court’s commissioner. Appellant, after receiving the deed from appellees, also secured a conveyance from Paschal, the same being executed for the consideration of $37,400, which included the assumption by appellant of the payment of the unforeclosed mortgage to the Windsor Trust Company.
Appellees alleged in their complaint that, at the time of the execution of their deed to appellant, Paul M. Booker was still the owner of the land and had the right of redemption from the judicial sales to Paschal, but that he was financially embarrassed and unable to redeem from the sales of the land and pay off the other indebtedness, and that appellant at that time entered into an oral agreement with him to the effect that appellant should redeem the land from Paschal and allow him (Booker) to redeem by repayment of the sums paid out by appellant with eight per cent, interest, and that it was also agreed that Booker should remain in possession of said lands and cultivate the same from year to year and that if the lands could be sold, the profits over and above the ex penses of redemption would be divided between tbe parties. Appellant denied in his answer that appellee Booker owned the lands or had the right of redemption from the sales to Paschal or that there was any agreement, oral or otherwise, entered into by him with Booker whereby the latter was to be permitted to redeem the lands. He alleged in his answer that the only agreement entered into at that time was to the effect that, if Booker could find a purchaser for the lands at a price acceptáble to appellant, Booker should receive a certain portion of the sale price over and above the sums paid by appellant for the purchase of the lands. Appellant also alleged in his answer that there subsequently arose a controversy between him and appellee-Booker as to the terms of their agreement and that on January 6,1915, they entered into a written contract which settled the rights of the parties. The contract is exhibited with appellant’s answer. It recites the controversy between the parties and that the contract was to be in “compromise and settlement of their differences,” and, after reciting a statement of the amount necessary to reimburse appellant for the sums so paid in the purchase of said lands, provides in substance that if Booker should find a purchaser for the lands at any time within three years from that date at a price not less than $50 per acre, and the sale be consummated, out of .the proceeds of sale appellant should be reimbursed in the sum of of $40,480.10 theretofore expended by him in the purchase and all sums expended by him between that date and the date of sale for improvements, including clearing and repairs, with interest at eight per cent, and that the excess price obtained for the land over and above the total of the above mentioned sums should be equally divided between the parties. The contract concludes' with the following paragraph:
“In the event that a purchaser who is ready, able and willing, as above defined, to purchase said lands at the price herein set out, to-wit: Not less than $50 an acre, is not produced by party of the second part within three years from this date, then in that event any and all in terest or claims of party of the second part in and to any profits arising from the sale of said lands, and any and all claims or interest in or upon said lands by virtue of the contract mentioned as a part of the consideration in his deed to the party of the first part dated December 11, 1913, shall terminate and be forever barred, and all indebtedness herein mentioned as being due from party of the second part to party of the first part shall by said event stand satisfied and canceled.”
The cause was heard by the chancellor on conflicting testimony as to the substance of the oral agreement between the parties at the time of the execution of the deed by appellees to appellant. The chancellor found in favor of appellees and declared the deed to be a mortgage, and after reference to a master ascertained the balance due, and allowed a redemption.
We deem it unnecessary to discuss the testimony in detail or to determine whether or not it was sufficient to justify the finding that the deed was intended as a mortgage. We will rest our decision on another phase of the case. Suffice it to say that there was a conflict in the testimony and that at the time of the execution of the contract of January 6,1915, a controversy had been pending between the parties as to the substance of their oral agreement. Nor do we deem it necessary to determine whether or not appellees had such an interest in the lands at the time they conveyed to appellant as to legally justify the claim that the deed should be treated as a mortgage. The time for redemption from the sales of the lands to Paschal had in fact expired, and the title of Booker had been extinguished, but he testified that Paschal, or the mortgage company, had verbally agreed to extend the time for redemption, and according to Booker’s testimony the parties to the transaction now under consideration proceeded upon the assumption that he (Booker) had an interest in the lands and that the purchase by appellant from Paschal was to be treated merely as a redemption. Assuming, therefore, without deciding, that under the circumstances described there was an agreement between Booker and appellant, which the latter should in equity have been bound to observe, with respect to treating the conveyance as a mortgage, we pro-'' ceed to a determination of the question urged by counsel for appellant that in any event, appellees are bound by the contract of January 6, 1915.
"We are of the opinion that the contention is sound. Conceding that the original conveyance in absolute form was intended by the parties as a mortgage, yet there subsequently arose a bona fide controversy between the parties concerning that fact, and they adjusted the matter by a new contract, which speaks for itself. The equitable doctrine regarding declaring a deed in absolute form to be a mortgage so as to conform to the'real intention of the parties has often been announced by this court, and in whatever form the contract may be expressed in writing, a court of equity will carry out the real intention of the parties by declaring the written deed or contract to be a mortgage when it is shown by evidence “clear, unequivocal and convincing” that such was the intention of the parties. Wimberly v. Scoggin, Receiver, 128 Ark. 67.
But it is equally clear that when the parties to a dispute see fit to adjust their differences by a new contract covering the subject-matter they are bound by it, whatever may have been the original effect of the transaction. The doctrine is stated as follows in a text book on the subject :
“By an independent parol agreement the mortgagor may waive his right under a deed which originally, in effect, was a mortgage, and if this agreement is supported by a consideration, or is partially acted on by the parties, or fully performed, the mortgagor is estopped to deny the grantee’s absolute title. The grantee has the legal title already, and the grantor may cut off all right to redeem by a receipt of an adequate consideration thereof, and an informal release of all his interests in the property. But the new agreement must not only be founded on adequate consideration but must be fair and reasonable in its terms and free from fraud or undue influence.” 1 Jones on Mortgages, § 338. The text is supported by the following authorities: Perkins v. Drye, 3 Dan. 170; School v. Hopper, 134 Ky. 83; Scanlan v. Scanlan, 134 Ill. 630; Cramer v. Wilson, 202 Ill. 83; Hutchinson v. Page, 246 Ill. 71; Jordan v. Katz, 89 Va. 628; McMillan v. Jewett, 85 Ala. 476; Haggarty v. Brown, 105 Iowa 395; Sears v. Gilman, 199 Mass. 384.
The Kentucky Court of Appeals in the case of School v. Hopper, supra, concluding the discussion on this subject said: “Inasmuch as the deed was absolute in form, and was made a mortgage by the collateral agreement, it was within the power of the contracting parties for a valuable consideration to agree that the deed should stand as made.” For a much stronger reason, the equity of redemption may be waived by a written agreement. The settlement of the dispute and the mutuality of the terms of the new contract furnish the consideration for its execution. This view of the matter is sustained by the decision of this court in the case of Bazemore v. Mullins, 52 Ark. 207, where the court held that under a conveyance of land in absolute form, but intended as security for debt, the mortgagor could estop himself by his conduct from asserting title to the land. Of course, if it were shown that the new contract, notwithstanding it was in the form of an agreement concerning the sale of the property, was really intended as a continuation of the mortgage, then a court of equity would enforce it as such, but there is no testimony in this case which would warrant any such conclusion. When this contract was entered into the parties had, as before stated, been in controversy for some time as to the terms of the original agreement. They were both represented by counsel in their several meetings for the purpose of discussing a settlement and this contract was submitted to and approved by appellees’ counsel before it was signed. There was no advantage taken of Booker in the negotiations, and the proof is clear that he understood fully the effect of the contract he signed. It is true that lie claims that he objected to the terms of the contract at the time he signed it and gave notice to appellant that he would insist on his right to redeem from the mortgage, but he could not thus accept the terms of the contract by signing it and repudiate it by giving notice that he would not live up to it. The intention to continue the existence of the mortgage must have been a concurring one in order to justify a court of equity in preserving the right to redeem. Rodgers v. Burt, 157 Ala. 91. The preponderance of the testimony is to the effect that Booker did not object to the contract on the ground that it excluded his right to redeem, but his objection was concerning another feature of the contract. But, whatever may have been his expressed objection to the contract, he bound himself to compliance with its terms by signing it, and he can not, after the parties have acted upon it until the expiration of the time allowed before making the sale, recur to the original agreement which was settled by the contract. Not only did Booker wait until the time had nearly expired before he made any further objection to the contract or offered to redeem, but the proof shows that appellant took possession of the lands and made valuable and expensive improvements.
It is contended, however, by counsel for appellees that, even if Paul Booker was estopped by the contract to assert the right of redemption, his wife, Martha E. Booker, was not a party to the contract and had the right to redeem according to the original agreement. This contention is based upon the assertion that a part of the lands constituted the homestead of appellees and that she also had an inchoate dower right.
The lands did not constitute the homestead. For two years before the purchase of the lands by appellant from Paschal they had been in the hands of a receiver appointed in the foreclosure suit and appellee Booker had occupied them merely as a tenant of the receiver. Paschal acquired the title from the foreclosure sales and conveyed it to appellant. It is true that Booker occupied the lands during the year 1914, but he did so under the agreement with appellant to pay rent. He moved off the premises about the time the contract of January 6, 1915, was executed.
There was no inchoate dower right for the reason that the husband, Paul M. Booker, was not seized of an estate of inheritance after his title was extinguished under the foreclosure sales to Paschal. Under our statute giving the right of dower, there may be dower in an equitable estate, but there must be such a right of immediate possession on the part of the husband as to constitute seizin in law. In Tate v. Jay, 31 Ark. 576, the court said: ‘ ‘ Seizin is either in deed, or in law; seizin in deed, is actual possession; seizin in law, the right to immediate possession. Unless such seizin existed during coverture there can be no dower, because it is an indispensable requisite to her right to dower, so declared by statute.” Since Booker’s title had been extinguished by the foreclosure sales to Paschal, he did not re-acquire title, either legal or equitable, so as to constitute an estate of inheritance with seizin in fact or in law under his original agreement with appellant. He, at most, acquired only an equitable right to hold appellant as a trustee and he still had the power to contract away the rights thus acquired. He could do so either hy his contract in writing or by acts constituting estoppel as was held in Bazemore v. Mullins, supra.
We are of the opinion, therefore, that the chancellor erred in failing to give effect to the last contract between the parties and in rendering a decree in favor of appellees. The decree is, therefore, reversed, and the cause remanded with directions to dismiss the complaint for want of equity. | [
-10,
96,
-112,
108,
74,
-32,
8,
-72,
91,
-79,
-75,
87,
-5,
-62,
1,
37,
-26,
61,
-27,
120,
-57,
-78,
39,
81,
81,
-77,
-79,
77,
-76,
-51,
-28,
-57,
73,
48,
-62,
21,
-30,
-30,
-59,
92,
14,
-63,
11,
76,
-43,
72,
52,
-77,
20,
77,
113,
-114,
-13,
40,
53,
75,
-55,
40,
-37,
-69,
-112,
-72,
-65,
-116,
123,
7,
-95,
100,
-108,
3,
-24,
12,
-104,
53,
-124,
-24,
118,
54,
-122,
118,
5,
25,
40,
38,
102,
16,
101,
-17,
-16,
-104,
46,
-9,
5,
-122,
-46,
88,
66,
104,
-66,
-97,
-36,
-44,
70,
122,
-2,
-123,
29,
108,
7,
-18,
-42,
-109,
11,
92,
-100,
3,
-33,
-113,
48,
113,
-49,
118,
93,
103,
50,
27,
-114,
-7
] |
McCULLOOH, C. J.
Appellant was convicted of the crime of assault with intent to kill, alleged to have been committed by assaulting Will Witcher, a police officer in the City of Port Smith. The sole ground urged for reversal of the judgment is that the evidence is insufficient to sustain the judgment of conviction, in that it fails to show that appellant’s attempt to do bodily harm to Witcher was coupled with present ability to do so, or that there was specific intent to kill.
The testimony adduced by the State tends to show that Witcher was on the lookout for appellant to arrest him on a charge of grand larceny and, meeting him on the street, attempted to arrest him, when appellant resisted and drew a pistol and extended it against Witch-er’s side or stomach. Witcher grabbed the pistol and disarmed appellant and fired at appellant as the latter ran away. Witcher testified that when he secured the pistol he found that the hammer was on “safety,” or in other words, that the pistol was not cocked. It is con tended that the fact that the pistol was not cocked makes the proof insufficient to establish the “present ability” to do bodily harm and that there could not have been a specific intent to kill in a legal sense when the pistol was not in shape to fire at the time the assault was made. Neither of these contentions is sound for the reason that the intent to hill may have existed in the mind of the accused, even though he was mistaken in assuming that the pistol was cocked or for the reason that he may have had the intention of cocking it before the felonious consummation was interrupted and there was a present ability to do bodily harm, though the pistol was not in shape to be fired 1111111 it was cocked. The question as to what is essential, in order to constitute an assault under such circumstances as are involved in this case, was discussed in the recent cases of Sullivan v. State, 131 Ark. 107; Johnson v. State, 132 Ark. 128.
It is a mooted question whether or not the pointing of an unloaded pistol constitutes an assault. 2 Wharton’s Criminal Law, section 800; 2 Bishop’s Criminal Law, section 3132. But the mere fact that the pistol was not cocked does not deprive the act of the essential feature of present ability to do harm with the weapon, for no appreciable length of time is required to cock a pistol, and, therefore, the ability to inflict a bodily injury is immediately present. When a pistol is unloaded, it is not in condition to use as a weapon, but the act of raising the hammer or moving the safety plate is an act which may be done so quickly that it cannot be considered merely as an intervening act in preparation for an assault. It was, under the circumstances of the case, a question of fact for the jury to determine whether the specific intent to kill existed at the time of the assault, for the assault was interrupted, and the jury might have found that appellant intended to cock the pistol and fire, and that he bad the intent to kill and would have cocked it as soon as he ascertained that it had not been cocked if he had not been interrupted in the consummation of the felonious act.
We are of the opinion, therefore, there the evidence was sufficient to sustain the verdict.
Judgment affirmed. | [
49,
-5,
-24,
-114,
27,
96,
-96,
56,
-16,
-125,
-27,
-77,
45,
-54,
9,
121,
59,
125,
85,
105,
-28,
-73,
7,
105,
114,
51,
121,
-57,
50,
-50,
126,
71,
28,
112,
-30,
93,
-26,
74,
-31,
-36,
-122,
-91,
-104,
96,
115,
-64,
32,
58,
120,
15,
33,
-66,
-29,
42,
21,
-113,
-119,
44,
74,
-67,
96,
120,
-120,
-115,
-51,
20,
-93,
54,
-68,
5,
-40,
58,
24,
49,
0,
-8,
123,
6,
-128,
-44,
109,
-103,
12,
98,
34,
44,
-87,
-49,
-87,
-87,
-19,
110,
-99,
-89,
24,
72,
99,
45,
-106,
-97,
98,
116,
14,
96,
103,
125,
89,
108,
6,
-57,
-16,
-79,
-53,
96,
82,
97,
-53,
7,
4,
113,
-49,
-26,
92,
69,
120,
-101,
-118,
-47
] |
OPINION OF
THE COURT.
The only question which we have to consider is whether Gibson and Brown, the defendants in the court below, had the right to appear there and plead to the attachment, without first filing special bail to the action. We have no ■doubt this right is given to defendants in all cases upon attachment. The act of 1S23 (Acts [Ark.] 1823, p. 6) provides “that in all cases upon attachment,. the defendant may appear and plead the same as in other cases, provided that when such defendant does not enter into special bail as is now prescribed by law, the property shall be and remain in the hands of the sheriff until the final determination of the suit.”- From the provisions of the above act we think it clear that defendants in attachment may in all cases appear and plead without giving bail, and that the property attached by the sheriff is considered as a substitute for bail. We are, therefore, of opinion that the court erred in refusing to hear the defendants unless they filed special bail to the action. Reversed. | [
-16,
-7,
-103,
-115,
10,
97,
47,
-104,
-61,
-29,
36,
-45,
-83,
-54,
16,
107,
117,
109,
101,
123,
77,
-73,
39,
99,
-14,
-13,
19,
-43,
-79,
77,
-17,
-9,
76,
36,
10,
-47,
70,
-119,
-27,
28,
-114,
-127,
-103,
100,
-16,
80,
52,
43,
92,
19,
97,
-98,
-29,
42,
52,
86,
104,
41,
75,
61,
-16,
120,
-97,
95,
-21,
4,
-125,
4,
-100,
35,
-40,
44,
-120,
49,
0,
-22,
115,
-122,
-126,
116,
105,
-101,
-24,
102,
98,
0,
28,
-6,
-67,
-95,
62,
-1,
-97,
-90,
-112,
89,
-117,
65,
-106,
-35,
111,
84,
-90,
-20,
-22,
92,
92,
108,
7,
-49,
-12,
-77,
13,
60,
-102,
3,
-62,
5,
48,
97,
-52,
-16,
92,
7,
25,
-37,
-116,
-38
] |
SMITH, J.
This suit was brought by appellee, a Delaware corporation, against appellant, a corporation under the laws of Oklahoma, for the conversion of one of its round bale presses at Spiro, Oklahoma. The press was not in operation at the time of the conversion but had been dismantled and was in storage. Appellant Joseph W. Arnold and Julia A. Arnold, his wife, who were president and secretary, respectively, of the defendant corporation, were sued individually, as was also one A. P. Walker, an employee of the defendant corporation, to which reference will hereafter be made as the defendant.
Paul Jones, the general manager of the plaintiff corporation, which will be referred to as the plaintiff, testified that on March 20, 1917, he received a letter signed by A. P. Walker reciting that the check for $25 which was enclosed was sent to pay for junk at Spiro, Oklahoma, per agreement. Jones immediately wrote Walker that he did not understand the letter, but to this letter he received no reply. Inquiry disclosed the fact that the press had been shipped to Fort Smith; but the testimony is conflicting as to whether Arnold and Walker converted the press to their own use or to that of the defendant.
In justification of the conversion it was testified that a written offer for $25 had been communicated to and accepted by one Paul E. Jones for the plaintiff; but these letters were not produced at the trial and the plaintiff denied that such letters were in existence or had ever been written.
Appropriate pleadings raised the question of the sufficiency of the service against the defendant, it being shown that no agent had been appointed in this State upon whom service of process might be had. It was shown, however, that defendant’s articles of incorporation recited that the places of business where its principal business was' to be transacted are at Arkoma, Oklahoma, and Fort Smith, Arkansas, and that Arnold and his wife, as the principal officers of the corporation, resided in Fort Smith, where the larger part of the defendant’s business was transacted.
The verdict of the jury was for the sum of $800 compensatory damages and for $200 punitive damages, and was rendered against both the defendant and Arnold and Walker individually, but did not mention the name of Mrs. Arnold, and it is now insisted that error was committed in that the jury did not obey the direction of the court to return a verdict in favor of Mrs. Arnold. No request that the verdict be amended was made at the trial.
Error is assigned in the refusal of the court to give an instruction numbered 6, which reads as follows:
“6. If you find from the evidence that the Fort Smith Iron & Steel Mills never had anything to do with said property and never had the same in its possession, you should return a verdict for it.”
But the court did give an instruction as follows:
“2. On the other hand, if you find from the proof in this case by a preponderance thereof, that the Southern Bound Bale Press Company did not sell or authorize the sale of this press, and further find that defendants, A. P. "Walker, Jos. W. Arnold and the Fort Smith Iron & Steel Mills took the same as charged in the complaint, or in any other manner, without the knowledge of plaintiff, then, in this event, it would be your duty to find a verdict against the defendants, or either of them, who took the property, for the fair market value of the property in question at the time and in the condition in which it was taken from Spiro, Oklahoma.
It is finally insisted that the verdict for punitive damages should not be permitted to stand.
We -will dispose of these questions in the order stated.
The defendant was maintaining in the county in which it was sued a “branch office or other place of business,” and it was, therefore, subject to suit in that county under the act of April 1, 1909 (Acts of 1909, p. 293), section 1, of which reads as follows:
‘ ‘ Section 1. That from and after the passage of this act any and all foreign and domestic corporations who keep or maintain in any of the counties of this State a branch office or other place of business shall be subject to suits in any of the courts in any of said counties where said corporation so keeps or maintains such office or place of business, and that service of summons or other process of law from any of the said courts held in- said counties upon the agent, servant or employee in charge of said office or place of business shall be deemed good and sufficient service upon said corporations and shall be sufficient to give jurisdiction to any of the courts of this State held in the counties where said service of summons or other process of law is had upon said agent, servant or employee of said corporations.”
See, also, Lesser Cotton Co. v. Yates, 69 Ark. 396; Arkansas Construction Co. v. Mullins, 69 Ark. 429, 431; W. T. Adams Machine Co. v. Castleberry, 84 Ark. 573, 574; Vulcan Construction Co. v. Harrison, 95 Ark. 588, 591; Fort Smith Lumber Co. v. Shackleford, 115 Ark. 272.
Mrs. Arnold has no just cause of complaint. Her name does not appear in either the verdict o*r the judgment, and as the verdict does recite the names of all the defendants against whom a finding of liability was made it is apparent that the jury obeyed the court’s direction to find in her favor.
Instruction 6 is, of course, the law; but no error was committed in refusing to give it. Instruction No. 2 made it plain that the verdict should be returned against the defendants only who took or were concerned in the taking of the property.
We agree with counsel for defendant, however, that the imposition of punitive damages was not warranted by the testimony. The plaintiff had only the constructive possession of the property. There were no circumstances of force, oppression or intimidation connected with the taking. In Kelly v. McDonald, 39 Ark. 393, it was said:
“Exemplary damages ought not to be given, unless in case of intentional violation of another’s right, or when a proper act is done with an excess of force or violence, or with malicious intent to injure another in his person or property. ’ ’
The taking was wrongful but not malicious and puniitive damages should not, therefore, have been assessed. See, also, 17 C. J. secs. 271, 273 and 276, of the article on Damages and cases there cited; S. W. T. & T. Co. v. Memphis Telephone Co., 111 Ark. 474; Greer v. White, 90 Ark. 117; Railway v. Hall, 53 Ark. 7; Barlow v. Lowder, 35 Ark. 492; O’Connell v. Rosso, 56 Ark. 572; Clark v. Bales, 15 Ark. 452; Brown v. Allen, 67 Ark. 388; Harrison Lbr. Co. v. Morris, 80 Ark. 262; Parks v. Thomas, 138 Ark. 70, 210 S. W. 141.
The judgment for punitive damages will be reversed and the action therefor dismissed. The judgment for compensatory damages is affirmed. | [
112,
-20,
-24,
-52,
26,
112,
56,
-70,
-38,
-128,
-91,
83,
-23,
70,
76,
93,
103,
61,
-43,
120,
-58,
-109,
7,
106,
-46,
-109,
-5,
-43,
48,
77,
-92,
-44,
92,
52,
-54,
-115,
-26,
-56,
-51,
-100,
-50,
-128,
41,
-24,
-39,
-128,
56,
99,
116,
79,
81,
-92,
-14,
40,
29,
67,
77,
46,
-21,
-88,
-63,
-7,
-126,
69,
125,
22,
49,
38,
-103,
-123,
72,
46,
-104,
53,
40,
-24,
115,
-90,
7,
-12,
47,
121,
8,
110,
98,
122,
-107,
-27,
92,
-104,
47,
62,
-103,
-89,
-32,
80,
91,
105,
-66,
-99,
-88,
16,
7,
118,
-2,
21,
29,
104,
-125,
-117,
-14,
-94,
15,
104,
28,
-105,
-21,
-80,
32,
113,
-47,
-94,
93,
103,
58,
-101,
-57,
-80
] |
SMITH, J.
Oil the 2nd day of August, 1.915, J. D. Lockhart, a druggist of Camden, Arkansas, committed rape upon the person of Vera Barkheimer, a white girl nine years of age. On the same day Lockhart was arrested upon a warrant charging him with the commission of the crime and placed in the jail, where he remained until taken to the State Hospital for Nervous Diseases several days later.
On August 4, 1915, two days after his arrest and while still in jail and after he had been adjudged insane, Lockhart executed three deeds to his wife, thereby conveying to her two lots in the business section of the city of Camden, and his homestead in that city, which was all the real estate owned by him. Each of these deeds recited a consideration of five dollars and love and affection. It was admitted that the five dollars was not paid, but Mrs. Lockhart testified that the real consideration for the deeds was the agreement by her to pay the expense of her husband’s defense and to assume the support of their three minor children. These children were 19, 17 and 14 years of age, respectively. Mrs. Lockhart testified that she had discharged the obligations thus assumed by paying attorney’s fees in both the criminal prosecution and in the suit for damages amounting to something over a thousand dollars, and that she had expended twelve hundred dollars a year for the support of the children, and that sum would be required for their continued support during their minority, and that the value of the property conveyed to her by her husband would be thus more than consumed, and that her husband owed no debts at the time of his arrest. The testimony is conflicting as to the value of these lots, it being placed as high as five thousand dollars by some of the witnesses and as low as three thousand by others at the time the deeds were made. In addition to this property Lockhart had two hundred dollars in money and a stock of drugs worth fifteen hundred dollars. This stock was disposed of by sale at retail and finally closed out before the recovery of the judgment for damages.
A suit for damages was begun on January 10, 1916, which resulted in a judgment on October 26, 1917, for $750. On November 8,1917, Mrs. Lockhart conveyed one of the lots to an attorney representing her husband, who made no claim of being an innocent purchaser. Execution was issued on the judgment, but was returned February 5, 1918, nulla bona, whereupon this suit was brought to uncover the property deeded by Lockhart to his wife.
There was testimony to the effect that explanation was made to Lockhart, which he appeared to understand, at the time of the execution of the deeds, that his wife, in consideration therefor, had agreed to assume the expense of his defense and the support of his children, and that he executed the deeds for these considerations, and that Mrs. Lockhart did not know when she assumed these obligations that any civil liability could be asserted against her husband because of this tort. There was other testimony, however, which we do not regard as essential to set out, that the deeds were prepared by a notary under the direction of Mrs. Lockhart’s brother.
Lockhart had been adjudged insane at the time of the execution of the deeds, and while this adjudication is not conclusive of insanity in all other proceedings in which it may be an issue, it is prima facie determinative, and we think the testimony here does not overcome the presumption arising from that adjudication. Eagle v. Peterson, 136 Ark. 72.
The deed of Lockhart was not void, but was voidable at the suit of any creditor who was prejudiced by its execution. Cox v. Gress, 51 Ark. 224.
The plaintiff in this damage suit was a creditor (Papan v. Nahay, 106 Ark. 230), and when her demand had been reduced to judgment and became enforceable as such, no property could be found upon which the execution could be levied. It is true that at the time of the execution of the conveyances here sought to be set aside, Lockhart did own a drugstore of sufficient value to satisfy the judgment subsequently obtained. But, before the judgment was obtained, Mrs. Lockhart had caused this stock of goods to be sold and had used the proceeds of the sale in the defense of the suits against her husband and in support of her children, these being the obligations assumed by her as a consideration for the deeds themselves.
It is decisive of this case to say that a judgment creditor’s right to enforce the judgment will be defeated if these voidable deeds are permitted to stand, and it is, therefore, a proper subject of chancery jurisdiction that these voidable conveyances should be uncovered, to the end that the enforcement of this demand may not be defeated. Peters v. Townsend, 93 Ark. 103. The decree of the court below will, therefore, be reversed and the cause remanded with directions to enter a decree in accordance with this opinion. | [
112,
-23,
120,
-18,
58,
-16,
10,
-112,
114,
-62,
-12,
-9,
-23,
5,
0,
41,
35,
123,
69,
105,
-14,
-74,
19,
39,
-14,
115,
-69,
-63,
55,
-49,
-19,
-43,
92,
98,
-54,
25,
34,
-64,
-31,
92,
-98,
-119,
-23,
-32,
95,
64,
56,
59,
69,
10,
113,
-114,
-25,
46,
20,
90,
109,
44,
-25,
-67,
-40,
-95,
-102,
31,
-113,
54,
-95,
34,
-108,
5,
90,
12,
-100,
53,
72,
-8,
115,
-122,
-122,
116,
4,
-119,
12,
106,
102,
32,
29,
-49,
48,
-120,
-106,
-81,
-115,
-121,
24,
72,
65,
12,
-66,
-99,
106,
-40,
-90,
-6,
115,
29,
89,
96,
7,
-53,
-108,
-125,
15,
-24,
-44,
19,
-21,
37,
32,
113,
-57,
34,
85,
69,
112,
-101,
-49,
-15
] |
SMITH, J.
An act was passed at the 1919 session of the General Assembly entitled “An act to create Grady and Arkansas River Road Improvement District of Lincoln and Jefferson Counties.’’Acts 1919, No. 509, 2 Yol. Road Laws, p. 2009. The act defines the territory which would be benefited by the proposed improvement, the bulk of the lands being in Lincoln County and the remainder in Jefferson County. Appellant is the owner of property in the proposed district and brought this suit to' restrain the commissioners of the district from issuing bonds to construct the roads there proposed. The basis of his attack on the act is that there is a legislative finding that the lands described, which lie in both counties, will be benefited but provision is made only for taxing the lands in Lincoln County.
Counsel for appellant says that the act creating the district was evidently prepared with the view to embraoing only lands in Lincoln County and that it was after-wards amended to include lands in Jefferson County without an alteration of its structure, and that in consequence it fails to make provision for taxing the lands in Jefferson County or collecting the tax if levied. Without conceding this to be true, counsel for the commissioners contend that it is immaterial, if true, as adequate machinery was provided by the act to enforce the payment of the tax against the lands in each of the counties.
Section 9 of the act provides that the county court shall, at the time that the assessment of benefits is filed, enter upon its records an order, which shall have all the force of a judgment, providing that there shall be assessed upon the real property of the district a tax sufficient to pay the estimated cost of the improvement; and counsel for the district says that this section authorizes the county courts of the respective counties to levy the proportionate part of the tax to be paid by the lands in each county, and, second, that if this be not true, and if only the county court of Lincoln County is authorized to levy the tax, the act should not be held invalid on that account, as the Legislature might authorize any person of sound mind to levy the tax and could, therefore, constitute the county court of Lincoln County as an agency with that authority. The correctness of these contentions present the issues to be decided.
There is every indication that this act was drawn originally to embrace only lands in Lincoln County and that it was amended to include lands in Jefferson County without an alteration of its structure as contended by •counsel for appellant. For instance, section 4 provides that the commissioners shall file their plans, after they have been approved by the State Highway Department, with the county clerk of Lincoln County and that the county court of that county may approve the report or may change the plans as it finds necessary. Section 7 provides that the assessment of benefits of said district shall be “filed with the county clerk of Lincoln County,” and that the secretary of the board of commissioners shall thereupon give notice by publication for two weeks “in a newspaper published and having a bona fide circulation in that county.”
The form of this notice is set out in the act and concludes with the statement that “All persons wishing to be heard on said assessment will be heard by the commissioners of said district at the circuit court room at Star City, in Lincoln County, on the — day of —, 19—.”
No provision is made for giving notice in Jefferson County. Section 7 further provides that after the commissioners have met to equalize the assessments pursu ant to the notice to that effect their action shall he final “unless suit is brought in the chancery court of Lincoln County within thirty days thereafter to set aside their findings. ’ ’
As stated above, section 9 provides that the county court shall at the time that the assessment of benefits is filed enter an order upon its records that there shall be assessed upon the real property of the district a tax sufficient to pay the estimated cost of the improvement. This can mean only the county court of Lincoln County, because the assessments are filed there and nowhere else. The language of section 10 of the act is as follows: “When levies of assessments of benefits are made by said county court, the land owners shall have the privilege of paying the same in full within thirty days after the levy becomes final * * * .” The language quoted shows that action by one court only was contemplated, and this view is reinforced by the reading of section 11 as follows: “The amount of the taxes herein provided for shall be annually extended upon the tax books of the county * * * .”
We conclude, therefore, that the county court of Jefferson County has no function to perform in the creation ■ of this district or the levy of the tax.
The statement of counsel for the commissioners that the levying of the tax is a ministerial function which may be discharged by any person of sound mind is necessarily subject to the qualification that that person has been thereto properly authorized to levy the tax. So that if it be conceded that the county court of Lincoln County might levy the tax on lands in Jefferson County if authorized so to do by the Legislature, it is certain it cannot do so in the absence of that authority. We are not, therefore, called upon to decide whether the county court of Lincoln County could be constituted an agency to assess all the lands of the entire district, as it was in fact constituted an agency to assess only the lands in Lincoln County.
It follows, therefore, that no machinery has been provided to assess against the betterment of the Jefferson County lands their proportionate share of the cost of the improvement and the act necessarily falls on that account.
The decree of the court below sustaining the demurrer to appellant’s complaint is, therefore, reversed and the cause will be remanded with directions to overrule the demurrer. | [
119,
-50,
-12,
126,
-22,
66,
18,
-128,
65,
-93,
-27,
83,
-19,
74,
0,
113,
-93,
-3,
117,
75,
-28,
-77,
83,
67,
50,
-77,
-5,
87,
-77,
93,
-28,
4,
78,
116,
-56,
-43,
70,
98,
-115,
-98,
-82,
-118,
-85,
72,
89,
-64,
48,
103,
98,
79,
117,
-81,
-6,
44,
24,
-29,
13,
110,
-39,
-86,
81,
-6,
-70,
-33,
93,
5,
33,
-58,
-120,
1,
72,
10,
-112,
49,
-56,
-8,
115,
-90,
-42,
116,
5,
-103,
8,
-96,
102,
-125,
61,
-49,
-24,
-120,
6,
-2,
-87,
-90,
-126,
25,
90,
15,
-73,
-99,
92,
86,
-58,
114,
-75,
-43,
91,
110,
-123,
-85,
22,
-77,
77,
-88,
-127,
3,
-49,
-117,
-80,
112,
-61,
-42,
95,
69,
18,
-37,
-121,
-16
] |
WOOD, J.
The facts are correctly stated by counsel for appellee as follows:
“The appellee, Neighbors, in the spring of 1918, rented to one Sadie Embry 15 acres of land in Pope County, Arkansas, Embry agreeing to pay one-half of the crop for the rent of the land, team and tools. A little later appellee rented to A1 Embry, the appellant here, another 15 acres of land adjoining the land rented to Sadie Embry upon the same terms. A1 Embry, the appellant, is the father of Sadie Embry; their lands were adjoining, they lived near each other and knew the terms upon which each was cultivating his crop.
Appellee, Neighbors, to enable his tenants, Sadie Embry and A1 Embry, the appellant, to make their crops, furnished each certain goods and supplies, and A1 Embry knew that Neighbors, appellee, was furnishing goods and supplies to his son, Sadie Embry.
In the spring of 1918, and about crop planting time, Sadie Embry went to war, and his father, A1 Embry, appellant, took over the crop that had been started by his son,^ and, using the same tools and teams, he went ahead cultivating the land during the crop season, and at gath ering time he proceeded to gather and market the crop grown on the land rented from Neighbors. Out of the first three bales of cotton gathered, which he claimed was grown on the land he had rented from Neighbors, he paid Neighbors his rent and also for goods and supplies furnished by Neighbors to him (A1 Embry). Later A1 Embry gathered three more bales of cotton from the land that was originally rented to Sadie Embry, and this cotton was taken to Atkins by appellee, Neighbors, and one Cusie Embry, a son of A1 Embry, and those two parties sold the three bales of cotton and received a check in the name of A1 Embry, which check they together took to the Bank of Atkins to be cashed. The clerk in the bank, at the direction of appellee, Neighbors, credited his (Neighbors) bank account, not only with one-half of the proceeds of the cotton for rent, but $146.03, the account of the supply bill that Neighbors had furnished to Sadie Embry to enable him to make the crop of cotton; Cusie Embry, who had been acting as the agent of his father, A1 Embry, refused to take any of the money from the bank, but left Ms father’s share there, which was later collected from the bank by A1 Embry. The next day after the sale of the cotton, appellant, A1 Embry, made demand on the appellee, Neighbors, for $147.03, which was refused, whereupon Embry filed this suit in the circuit court. The court on the trial of this cause before a jury, after hearing the evidence, directed the jury to return a verdict in favor of the appellee, hence this appeal.
The appellant among other things testified that he did not agree to pay appellee the amount of the account of his son, Sadie Embry; that the latter traded with Neighbors before appellant moved on the place.. He also testified that Ms son, Sadie Embry, was a grown man with a wife and two children.
It is conceded that appellee’s account against Sadie Embry was correct.
There is no reversible error in the ruling of the court. The undisputed evidence shows that appellee had rented to Sadie Embry, the son of the appellant, for the year 1918 the land upon which the cotton was grown, out of the proceeds of which the appellee received the amount of the account of Sadie Embry for the rent and for supplies furnished Sadie Embry by the appellee during that year. The undisputed proof, therefore, shows that Sadie Embry was the tenant of the appellee for the 15 acres of land upon which the cotton was grown.
The appellant contends that the proceeds of the crop belong to him and that, inasmuch as he had not promised in writing to pay the debt of his son, Sadie Embry, he was not liable therefor, under the statute, section 3654, Kirby’s Digest.
But' the above statute has no application to the facts of this record. The undisputed testimony, as we have already stated, shows that the land upon which the cotton was grown was rented by the appellee to Sadie Embry, and not to A1 Embry. There is no testimony abstracted by the appellant to show that after Sadie Embry went to the war the appellant rented the same land from the appellee under an independent contract.
The appellant in his abstract states that “before any crop was planted Sadie Embry was drafted into the service of the United States, the appellee then rented to the appellant the 15 acres of land that was to have been cultivated by appellant’s son on the same terms of onebalf of the crop.” The appellant does not set forth in his abstract any testimony tending to prove the above facts:
The appellee in his abstract states that the appellee rented to Sadie Embry 15 acres of land; that in the spring 1918, and about crop planting time, Sadie Embry went to war and his father, A1 Embry, appellant, took over the crop that had been started by his son, and, using the same tools and teams, he went ahead cultivating the land during the crop season, and at gathering time he proceeded to gather and market the crop grown on the land rented from Neighbors.
Appellant contends that his son first rented the 15 acres from the appellee, but that after his son left the appellant entered into an independent contract for the rental of this land. The latter statement, however, he does not prove by any testimony set forth in the record.
The burden is upon the appellant to show error in the ruling of the trial court and we must presume in favor of the judgment that the statement set forth in the appellee’s abstract or statement of facts in regard to the contract is correct, since appellant brings forward no testimony to controvert the same.
If the appellant was' simply occupying the premises for his son, Sadie Embry, then the latter, and not the appellant, must be regarded as the tenant of the appellee. Under section 5033, Kirby’s Digest, the appellee had a lien upon the crop grown on the land in controversy, which was superior. The appellee having. obtained possession of the proceeds of the cron had a right to hold the same to satisfy the debt of Sadie Embry for the rent and for the supplies. The appellant when he took over the land and crop had notice of the relation of landlord and tenant that existed between the appellee and Sadie Embry. The appellee’s vested right under the statute was superior to any interest or claim that the appellant may have had therein. See Lemay v. Johnson, 35 Ark. 231: Hunter v. Mathews, 67 Ark. 364; Murphy v. Myer, 95 Ark. 32.
Since the debt of Sadie Embry to the appellee for rent and supplies is not denied, and since the appellant has no interest in the proceeds of the crop held by the appellee for the payment of this debt, superior to the lien of the appellee, it does not lie in appellant’s mouth to complain that Sadie Embry was not made a party to the suit.
The judgment is correct, and it is therefore affirmed. | [
112,
108,
-20,
-115,
26,
-32,
106,
-70,
90,
-95,
101,
83,
-21,
-50,
89,
45,
-29,
-35,
85,
-20,
-26,
-77,
23,
112,
-47,
-77,
-15,
-43,
-72,
105,
-12,
-44,
77,
24,
-54,
-47,
98,
-64,
-27,
92,
-114,
-124,
-85,
104,
89,
-46,
52,
43,
28,
-55,
113,
-82,
-77,
40,
17,
-57,
44,
46,
-19,
-72,
80,
112,
26,
12,
-1,
27,
17,
-26,
-104,
1,
-56,
108,
-104,
48,
-120,
-23,
115,
54,
-110,
116,
7,
-119,
8,
38,
99,
50,
-19,
-17,
-56,
8,
38,
-2,
-99,
-90,
64,
88,
66,
72,
-65,
20,
63,
-48,
86,
116,
-7,
-107,
28,
124,
35,
-49,
-106,
-79,
13,
-72,
-112,
-101,
-21,
103,
49,
117,
-49,
-74,
93,
71,
114,
-101,
-121,
-111
] |
McCULLOCII, C. J.
Appellee was circuit clerk of Johnson County for two terms, beginning on October 31, 1912, and ending October 30, 1916. During his said terms he presented to the county court for allowance numerous accounts for services rendered in criminal cases pending in the Johnson Circuit Court, and the present action is one instituted against him in the chancery court of that county by- the prosecuting attorney, in the name of the county, to set aside judgments allowing said claims, and warrants issued pursuant thereto, and to recover from appellee the amount of items in the accounts alleged to be fraudulent and illegal.
There are 388 paragraphs in the complaint, each relating to a separate account filed by appellee in the county court, and it is alleged that each account set forth in the several paragraphs contains items which are specified, and which were either wholly unauthorized by law or were unfounded in fact, and that the allowances were obtained by fraud. Appellee demurred to the complaint, but the demurrer was overruled and an answer was filed in which the allegations of fraud and illegality in the allowances were denied, but upon a hearing of the cause the court declared the law applicable to the issue in the case and referred the matter to a master to state an account as to the amount of items in appellee’s account which were wrongfully allowed, according to the principles of law announced by the court. The master made his report, showing the following findings of fact concerning the allowances of the county court to appellee:
“Illegal fees allowed up to two years before the filing of the complaint.........$829.80
“Illegal fees allowed within two years of the filing of the complaint in which warrants have been paid and canceled .............................................................-........... 144.75
“Illegal fees allowed within two years of filing of complaint in which warrants have been issued but not canceled .......... 672.40
‘ ‘ Statement of penalties:
“Penalties on all claims allowed up to two years before filing of complaint ..............................................................-.............. 2982
“Penalties on all claims allowed within two years before filing of complaint on which warrants have been paid and canceled............................................................... 966
“Penalties on claims allowed within two years before filing of complaint , in which warrants have been issued but not paid............................................................... 2046
“Total penalties ................................................ 5994”
Exceptions were filed by appellee, and the court rendered a final decree against appellee for the recovery of $829.80, the first item of the master’s report. The item of $672.40 for fees allowed within two years of the commencement of this action as to warrants which had not been canceled was not embraced in the complaint, as we understand, and the court did not enter any decree thereon. The court decided in appellee’s favor as to the other items reported by the master.
The appeal prosecuted by appellant challenges the correctness of the court’s adverse ruling on the items mentioned in the master’s report, and appellee has obtained a cross-appeal attacking the correctness of the item of $829.80, sustained by the court against him.
The first question which presents itself is the one raised by appellee’s demurrer challenging the jurisdiction of the chancery court. It is said that the action is based on the provisions of the statute (Kirby’s Digest, section 1888), which reads as follows:
“If any officer shall charge, demand or receive any more or greater fees for his services than are allowed by law, or shall demand, charge or receive any such fees without having performed the services for which the same are charged, such officer, for every such offense, shall forfeit to the party injured, or against whom the same may be charged, the amount of fees illegally charged, and five dollars for each item illegally demanded, charged or received, with cost, to be recovered by action, and shall also be subject to an indictment for extortion. ’ ’
Learned counsel for appellant seek to sustain the action on the force of that statute and insist that the court erred in refusing to render decree for the penalty prescribed in that statute. We are of the opinion, however, that the statute in question has no application to suits by the county to recover for fees illegally demanded from the county by one of its officers. The statute was designed for the protection of individuals against whom extortionate demands are made by public officers. Claims against a comity for fees of such officers can only be collected by presentation to the county court for allowance, and that court passes judicially on the claims, which affords the county ample protection against unjust demands. It was not intended to prescribe a penalty for presenting to the county court a false claim. There is another statute (Kirby’s Digest, section 1889) which penalizes such wrongful conduct on the part of a public officer and prescribes a different punishment from that prescribed in the statute just quoted.
It follows that the chancery court was correct in refusing to render decree for the penalty prescribed in this statute, but we think that the jurisdiction of the chancery court is sustained on other grounds.
In the case of State, use Izard County v. Hinkle, 37 Ark. 532, Chief Justice English stated the rule on this subject as follows:
“An order of allowance made by the county court, may be reviewed or opened in several modes:
“First. By appeal to the circuit courts
“Second,. It may be quashed on certiorari by the circuit court, where it appears from the face of the record that the claim allowed was not, by law, a charge against the county, and the court had no authority or discretion to allow it upon any evidence that might have been introduced.
“Third. The statute empowers the county courts, as often as once in three years, to call in all outstanding warrants, to examine and cause them to be renewed, if legally issued, and, if not, to reject them.' Thus the Legislature has empowered county courts to review allowances made at previous terms, and, if made without authority of law, to reject warrants issued upon them, and also to reject warrants otherwise illegally or fraudulently issued.
“Fourth. An order of allowance may be opened in chancery, as any other judgment, for fraud, accident or mistake, on a proper case made.”
In the opinion in that case there was no further elaboration of the jurisdictional grounds of “fraud, accident or mistake.” Undoubtedly the rule established by this court with respect to setting aside judgments of courts for fraud means fraud in the procurement of the judgment, and not merely fraud in the original cause of action. Scott v. Penn, 68 Ark. 492; James v. Gibson, 73 Ark. 440. There is, however, a modification of that rule with respect to the judgments of county courts in the allowance of claims against the county, and in the recent case of Monroe County v. Brown, 118 Ark. 524, we stated the law concerning the force and effect of judgments of county courts and the power to set them aside as follows: “The statute is not construed to-mean that the county court is authorized to review former judgments of the .court for mere errors in the allowance of claims, but they are authorized to reject claims (warrants) which have been illegally or fraudulently issued. In other words, where the claim against the county was one which, under any evidence which might have been adduced, could not have been a valid claim against the county, or where the judgment of allowance was obtained by fraud, it may be set aside and warrants issued pursuant thereto canceled. However, to carry the review beyond that and to permit investigations for mere errors of the court, would make it purely a collateral attack on the judgment, which is not authorized by the statute.”
That case was one which came here on appeal from an order of the county court canceling warrants presented for reissuance, but it is applicable as a statement of the law relating to the effect of judgments of that kind, and the power to set aside such judgments of allowance is not confined to the statutory calling-in process, and can be exercised by any court acquiring jurisdiction on other distinct grounds for setting aside such judgments. The judgments of the county court as to items which were wholly unauthorized by law can be set aside in any court acquiring jurisdiction, and so can judg ments as to items which were allowed through fraudulent procurement. Jurisdiction of the chancery court is dependent on the inadequacy of a remedy at law. The statutory remedy in favor of the county for calling in the warrants and canceling them when found to have been wrongfully allowed is not adequate, for it may not be deemed advisable by the county court, or necessary, to make a general call for the reissue or cancellation of outstanding warrants. That remedy is, therefore, not necessarily an adequate one and does not bar remedy afforded in chancery.
The record shows that the county court called in the outstanding warrants of the county by order entered May 10, 1917, and August 11, 1917, was specified as the day for presentation of warrants to the court. The present action was instituted between those two dates, and there was a complete and adequate remedy for the correction of these wrongful allowances as to warrants which were outstanding at the time of the call. There was no adequate remedy at law, however, for the county as to warrants which had been paid, and the county was, therefore, entitled to a remedy in the chancery court for the correction of wrongful judgments of allowance.
Multiplicity of actions is another distinct ground for equity jurisdiction which appears in this action. State v. Atkins, 53 Ark. 303; Place v. State, 77 Ark. 328.
"We are, therefore, of the opinion that the jurisdiction of the chancery court was complete, and that the demurrer of appellee was properly overruled.
The findings of fact of the master and of the court were in favor of appellant and the duty of abstracting the testimony in order to show that those findings were not sustained by the evidence falls on appellee in his attack on the cross-appeal.
It follows from what we have already said that the judgment of the court was correct as to all items for which there was no authority to allow as claims against the county.
The contention of appellee is that as to the other items, where there was legal authority for their allowance, but which are claimed to have been erroneous in fact, the evidence fails to show that there was any fraud practiced on the county court in procuring the allowances. Counsel for appellee abstracted the testimony of appellee himself and of the county judge, where it is shown that the accounts were made out upon customary blanks and that there was no concealment of fact, or fraud, in other words, practiced. We are of the opinion, however, that the fact that appellee was the clerk of the circuit court, and thus occupied a confidential relationship toward the county with respect to his duty in correctly keeping the records of the proceedings of the circuit court and the items for which fees were allowed, and that throughout his two terms he presented very numerous accounts containing illegal and incorrect items, showing that he was systematically padding his accounts, was sufficient to constitute such a fraud as would justify a court in setting aside such judgments 'allowed.
The court was, therefore, correct in allowing the item of $829.80 for illegal fees allowed up to two years before the commencement of this action. It should also have allowed the item of $144.75. The court seems to have based its ruling in refusing to allow those items on section 7174, Kirby’s Digest, which reads as follows:
“When any error shall be discovered in the settlement of any county officer made with the county court, it shall be the duty of the court, at any time within two years from the date of such settlement, to reconsider and adjust the same.”
That section, however, was part of the revenue statute, and only applies to the settlements of officers handling public money. It has no application at all to judgments allowing claims, for it does not contain any authority for a county court to set aside claims within the period named, or any other period.
Decree will be entered here for the sum of $144.75, in addition to the amount decreed against appellee by the chancery court. In all other respects the decree is affirmed. | [
-76,
-31,
-84,
-36,
-118,
-96,
42,
-90,
74,
-63,
55,
83,
-21,
-32,
0,
111,
-30,
125,
-27,
122,
-59,
-77,
119,
98,
-74,
-77,
-53,
-41,
-75,
79,
-4,
-41,
0,
-80,
-22,
-107,
70,
2,
-91,
88,
-122,
3,
-103,
-51,
-7,
-64,
48,
-71,
23,
77,
117,
46,
-13,
42,
17,
114,
105,
45,
-1,
-117,
-64,
-32,
-97,
5,
95,
23,
-79,
71,
-102,
-123,
-54,
58,
-104,
57,
-94,
-7,
122,
-106,
-62,
84,
79,
-103,
8,
100,
98,
96,
-87,
-57,
-76,
-68,
46,
58,
-104,
39,
-110,
81,
11,
-119,
-74,
-99,
116,
-112,
39,
-4,
-32,
20,
29,
110,
-29,
-114,
-112,
-109,
-113,
100,
-116,
3,
-1,
-78,
20,
97,
-49,
-29,
92,
71,
56,
27,
-126,
-127
] |
McCulloch, C. J.
This is an action instituted to recover damages on account of alleged deceit and fraudulent representations in the sale or exchange of lands.
Mattie D. Hisey, one of the plaintiffs, owned real estate in the city of Terre Haute, Indiana, and exchanged the same with defendant, American Realty Company, for two tracts of land in Cleburne County, each containing eighty acres. She alleges in her complaint that defendant’s agent induced her to make the exchange through false and fraudulent representations as to the location, quality and value of the land. Her claim is, in brief, that she sent her husband to Cleburne County, Arkansas, with the agent of the defendant to inspect the land, and that, instead of showing her husband the tracts of land which were sold to her, he fraudulently showed him another tract and represented to him that it was the tract which was the subject of negotiations.
According to the testimony adduced by plaintiff, the tract pointed out to Hisey was covered with valuable timber and was suited for farming purposes, containing also a valuable spring of water which was useful in stock raising; whereas, the tract actually conveyed to Mrs. Hisey contained no merchantable timber at all, that it was unsuited for farming purposes, and had no spring on it at all.
The jury awarded damages to the plaintiff, and the defendant has prosecuted this appeal.
The only assignment of error pressed here is the ruling of the court in giving an instruction at the instance of plaintiff as follows:
“1. If you believe, from a fair preponderance of all the evidence in this case, that the defendant’s agent did falsely, fraudulently, knowingly and deceitfully make to the plaintiffs representations concerning the character, quality, condition and location of the lands conveyed by the defendant to the plaintiffs, which representations induced the plaintiffs to convey to defendant their houses and lots of land in the city of Terre Haute, in the State of Indiana, and that the plaintiffs were misled to their injury by such false and fraudulent representations, and that the relative position of the parties to this action was such that the plaintiffs were necessarily presumed to contract upon the faith reposed in the statements of the defendant’s agents, and that the plaintiffs did rely upon the false and fraudulent statements of the defendant’s agents, and did have a right to rely upon them in full faith of their truth, then your verdict must be for the plaintiffs, and the measure of damages will be the difference between the real value of the lands so conveyed to plaintiffs, as shown by the evidence, and what it would have been had the representations made concerning it been true. ’ ’
The court also, on motion of defendant, gave the following instructions:
“1. You are instructed that in order for the plaintiff to recover in this case you must find that the plaintiff has proven by a preponderance of the testimony that the defendant used some fraudulent inducement in the land deal referred to, and that the plaintiff not* only relied on the fraudulent representations, but that in so doing, the plaintiff was damaged. ’ ’
“4. Before representations of the seller of real estate can amount to fraud, the .one claiming to suffer by fraud must be presumed to contract upon the faith and trust reposed in the seller on account of the superior information and knowledge in respect to the subject of the contract.”
“5. I instruct you, gentlemen of the jury, that one who has had ah opportunity to inform himself concerning the subject-matter of a contract can not complain of being misled. And in this case, if you believe from all the evi dence that plaintiffs had a fair and reasonable opportunity to inform themselves as to the amount of timber on, and the value of, the lands in question, and did not so inform themselves, then they can not complain, and your verdict should be for the defendant.”
This court, in the case of Matlock v. Reppy, 47 Ark. 148, laid down the principles of law applicable to this class of cases as follows (quoting from the syllabus):
“To maintain an action for damages for false and fraudulent representations as to land sold, the vendee must prove, (1) that the fraud related to some matter of inducement to the making of the contract; (2) that it wrought injury to him; (3) that the relative position of the parties was such, and their means of information such, that he must necessarily be presumed to have contracted upon the faith reposed in the statements of the vendor; and (4), that he did rely upon them, and had a right to rely upon them, in full beliéf of their truth. ’ ’
Instruction No. 1, given by the court, was an attempt to follow that rule, and, so far as the law announced therein, it did adhere to the principles announced in Matlock v. Reppy.
It is insisted, however, that while the correct principles of law are announced, the instruction itself was erroneous because it placed upon the jury the duty of deciding questions of law, whereas the court should have stated hypothetically the circumstances under which the plaintiff would be presumed to have contracted upon the faith of the statements made by the defendant.
Conceding that the instruction is open to that objection, the defendant is not in an attitude to complain for the reason that its fourth instruction contained substantially the same language; and, besides that, this objection to the instruction should have been made specifically.
The same may be said of the objection to the other part of the instruction submitting to the jury for them to determine under what circumstances the plaintiff could rely upon the statements, instead of stating to the jury under what circumstances such reliance could be placed upon the statements. There should have been a specific objection to the instruction, calling the court’s attention to the criticism now made.
There is a serious conflict in the testimony, but we are of the opinion that there was enough testimony in support of the plaintiff’s contention to warrant a submission of the issues to the jury. The judgment is therefore affirmed. | [
-78,
124,
-8,
-84,
-120,
-32,
40,
-102,
105,
-80,
102,
87,
-19,
-42,
16,
59,
-26,
-23,
64,
107,
-11,
-77,
18,
115,
-14,
-109,
-61,
-49,
-65,
77,
-11,
-58,
77,
48,
-54,
85,
66,
66,
-63,
28,
-114,
13,
-117,
104,
-7,
64,
52,
-21,
20,
79,
113,
-81,
-2,
106,
61,
67,
105,
40,
-21,
-87,
65,
-72,
55,
69,
-3,
-125,
-127,
102,
-104,
3,
-54,
74,
-112,
53,
0,
-103,
122,
-74,
-122,
84,
9,
-119,
8,
38,
103,
17,
5,
-81,
-96,
-116,
39,
122,
-123,
-90,
-32,
73,
67,
75,
-73,
-100,
84,
-48,
71,
-4,
106,
13,
29,
104,
39,
-2,
-42,
-77,
47,
84,
-100,
3,
-61,
55,
53,
64,
-51,
-32,
92,
71,
58,
-37,
14,
-25
] |
Wood, J.
The question presented by this appeal is whether or not mandamus will lie at the. instance o| a citizen and taxpayer of Lee County to compel the county judge and the county clerk of that county to give the notice provided by and otherwise comply with Act 181, approved April 12, 1911, which provides, in part, as follows:
“Section 1. It shall be the duty of the county court of Craighead * * * and Lee counties, at the July, 1911, term thereof, and at the same term of court every ..two years thereafter to receive propositions from any bank, banker or trust company in said counties, that may desire to become the depositary of the public funds of said counties, including 'school funds. Notice of the intention to receive such propositions or bids shall be published by the clerk of said county for a period of not less than fifteen days before the commencement of said term, in some newspaper in said county. ’ ’
“Sec. 2. Any such bank, banker or trust company, desiring'to become such depositary, shall on or before the first day of said term of court file with the clerk of said court a sealed bid stating the rate of interest offered to be paid by such bidder for the two years next ensuing, upon the county funds, that may be deposited in pursuance to such bids. And said ‘bid shall be accompanied by a certified check for not less than $250, and in such greater amount as the court shall order, to be stated in the advertisement heretofore required.”
The provisions of the sections quoted are all of the act which it is necessary to set forth, as the other sections relate exclusively to things that are to be done after the notice is given. The sections must be construed together so as to make them harmonious and to effectuate the manifest purpose of the Legislature in passing the act.
The latter clause of the second .section reads: ‘ ‘ And said bids shall be accompanied by a certified check for not less than $250, and in such greater amount as the court shall order, to be stated in the advertisement heretofore required.” The first section requires a notice to be published fifteen days before the commencement of said term, etc. Taking these two sections together, it is apparent that the word court in the last clause of the second section has reference to the judge, for it would be impossible for the court, as a court, to order the publication of the notice fifteen days before the commencement of the term of court. Necessarily only the judge of the court could make the order for the publication required by the act. The court, as a court, could not make an order except when duly organized and in session, and as the act contemplates that the order for the publication shall be made before the court convenes, necessarily the word court, as used in the latter clause, towit, “the court shall order,” etc., means the judge. The statute contemplates that the initial act shall be performed by the county judge in fixing the amount of the bidder’s deposit and ordering the publication of the notice; but the statute itself fixes the minimum amount of the deposit at $250, and if the county judge fails to act in the premises, the duty is imposed on the clerk to publish the notice any way. These duties are imposed on each of those officers and they may be compelled by mandamus to perform them.
The provisions of the statute requiring the publication of the notice, in the manner and form prescribed therein, are mandatory. The publication of this notice, as provided, is merely a ministerial function, and it is the duty of the officers entrusted with its performance to act on their own motion in pursuance of the statute. All the duties of a discretionary and judicial character imposed upon the county court, come after the publication of the notice. The object of this notice is to give those desiring to become the depositary an opportunity to make their bids, and to procure the best bids obtainable for the county, and to notify bidders of the time propositions or bids will be received. The county judge and the county clerk have no fliscretion, therefore, as to whether or not they shall publish the notice required by the statute. As to what the court, as a court, may or may not do, or what it should or should not be required to do' after the publication is given as the statute prescribed, are not now before us for consideration. Judicial discretion, in those matters committed to the county court, will not be controlled by writ of mandamus, but even in those matters, where the court fails or refuses to act at all, it can be set in motion by mandamus.
The judge and the clerk, under the statute, must act by giving the notice, and their failure to act is tantamount to a refusal to perform a duty which is mandatory upon them, and their failure to act also shows conclusively their intention not to perform their duty.
The rule is correctly stated in People v. Board of Supervisors, 79 N. E. (Ill.) 123, as follows: “The general rule is that before applying for a mandamus an express demand should be made, and there should be a refusal to perform, either express or implied. In cases, however, where the duty sought to be enforced is of a public nature affecting the people at large, and there is no one especially empowered to demand its performance, there is no necessity for a demand and refusal. The law requiring the duty stands as a continuing demand.” See also People v. Board of Education, 21 N. E. 187, and other cases cited in appellant’s reply brief.
The rule and the exception is recognized in Lee County v. Phillips County, 36 Ark. 276, where we said: “The general rule is admitted to be that a demand is necessary. The exceptions sustained by some authorities are in cases where the law imposes a positive and well defined duty of a public nature upon public officers, affecting public interests. Then the law stands for a continuous demand, and it suffices to show a refusal.”
It follows that the court erred in not ordering a writ of mandamus, and its judgment will therefore be reversed, and mandamus will issue here, directed against the appellees, commanding the judge to order and the clerk to publish the notice, and to further proceed as specified in the statute. | [
-10,
-19,
-4,
-4,
74,
-16,
18,
-72,
91,
33,
37,
23,
-3,
66,
4,
123,
-77,
111,
85,
105,
-60,
-78,
55,
-29,
-78,
-77,
-41,
-41,
118,
79,
-74,
95,
76,
48,
-54,
85,
86,
-118,
-59,
-34,
14,
-127,
11,
65,
-47,
97,
48,
-29,
50,
-117,
53,
94,
-94,
40,
88,
66,
104,
44,
-7,
63,
-48,
-15,
-66,
-115,
127,
15,
-127,
-25,
-104,
19,
-64,
-114,
-104,
49,
24,
-24,
114,
-74,
-122,
116,
-119,
41,
8,
106,
98,
0,
-59,
-17,
-72,
-88,
14,
-13,
-65,
-122,
-45,
-7,
42,
38,
-105,
29,
124,
20,
70,
126,
-18,
5,
23,
108,
-128,
-113,
-12,
-77,
11,
108,
24,
7,
-58,
35,
48,
117,
-52,
-9,
94,
111,
53,
27,
-114,
-72
] |
Hart, J.
Appellees instituted this action in the circuit court against appellant, and in their complaint alleged that appellant permitted Johnson grass to go to seed on its right-of-way so that ninety acres of their land adjoining the right-of-way of the railway company became sodded and implanted in Johnson grass, to their damage in the sum of $2,700. In addition they sued for $25 statutory damage. Appellant answered, denying the allegations of the complaint, and alleged that if appellees ’ land did become sodded and implanted with Johnson grass, appellees permitted Johnson grass to grow and mature on their own lands. At the conclusion of tbe testimony, the court instructed the jury to return a verdict for appellees in the sum of $25, which was done. From the judgment rendered, appellant has duly prosecuted an appeal to This court.
The suit is based on section 2 of Act No. 46 of the acts of the Legislature of the year 1909. It is as follows: “If it shall appear upon the suit of any person owning, leasing or controlling land contiguous to the right-of-way of any such railroad or railway company, or corporation, that said railway or railroad company, or corporation, has permitted any Johnson grass or Bussian thistle to mature or go to seed upon their right-of-way, such person so suing shall recover from such railroad or railway company or corporation, the sum of twenty-five ($25) dollars, and any such additional sum as he may have been damaged by reason of such railroad or railway company or corporation permitting Johnson grass or Bussian thistle to mature or go to seed upon their right-of-way.
“Provided, any owner of land or any person controlling land contiguous to the right-of-way of any such railroad or railway company or corporation company, who permits any Johnson grass or Bussian thistle to mature or go to seed upon said land, shall have no right to recover from such railroad or railway company, or corporation, as provided for in this act.” Acts of 1909, page 102.
The act in question is an exact copy of one passed by the Legislature of the State of Texas. See Session Laws of Texas of 1901, page 283. The Texas act was construed by the Supreme Court of Texas on June 19, 1905, in the case of the San Antonio & A. P. Ry. Co. v. Burns, 87 S. W. 1144. The court held:
“Laws 1901, page 283, chapter 117, provides that one owning, leasing, etc., land contiguous to the right-of-way of a railroad, which has permitted any Johnson grass or Bussian thistle to mature or go to seed on its right-of-way, shall be entitled to recover damages occasioned by reason of such grass, provided that any owner, etc., who permits any such grass or thistle to mature or go to seed upon the land shall have no right to recover. Held, that where Johnson grass was communicated to land from a railroad right-of-way, but the owner .permits it to mature and go to seed thereon, he can not recover from the railroad.” See also Doeppenschmidt v. I. & G. N. Ry. Co., 101 S. W. (Supreme Court of Texas) 1080. This case was decided May 8, 1907.
It is well settled in this State that where the Legislature adopts a statute of another State which has been construed by the courts of that State it will he taken that this interpretation was also adopted. State v. Arkansas Brick & Mfg. Co., 98 Ark. 125; McNutt v. McNutt, 78 Ark. 346; Knights of Maccabees v. Anderson, 104 Ark. 417; Snellen v. K. C. So. Ry. Co., 82 Ark. 334. Therefore, it is contended by counsel for appellant that the evidence in this case shows that appellees permitted J ohnson grass to mature and go to seed upon their land and that they have no right to recover in this action. We think, however, the undisputed testimony shows that appellees did not permit Johnson grass to mature and go to seed on their land within the meaning of the statute. The word “permit,” as used'in the statute, means to allow or suffer. It implies that the owner did not attempt to prevent the j ohnson grass from maturing and going to seed. The evidence for appellees shows that they did not discover Johnson grass on their land until the year 1910; that during that year and the year 1911 they persistently cultivated the land and tried to keep the Johnson grass from maturing and going to seed; that some of it might have gone to seed, but that if it did so it was in spite of their efforts to prevent it. We may assume that the action of the court in directing a verdict for appellees was based upon this testimony. The evidence shows that appellant permitted the Johnson grass to mature and go to seed on its right-of-way during the years 1910 and 1911, and that during* these years appellees made every effort to prevent it from maturing and going* to seed on their land, to which it had spread from the right-of-way of the appellant railroad company. See I. & G. N. Ry. Co. v. Voss, 109 S. W. (Texas Civil Appeals) 984; M., K. & T. Ry. v. Tolbert, 134 S. W. (Texas Civil Appeals) 280.
It follows that the judgment must be affirmed. | [
-14,
126,
-36,
-115,
10,
104,
32,
-102,
113,
-94,
-27,
-45,
-17,
-38,
-120,
39,
-25,
109,
113,
58,
119,
-93,
71,
-30,
-102,
-69,
-5,
-59,
-67,
75,
-26,
87,
12,
16,
-54,
-43,
-90,
-56,
-63,
92,
-114,
-123,
-67,
104,
-101,
104,
52,
123,
86,
71,
49,
14,
-13,
40,
25,
-13,
45,
47,
-1,
-83,
-61,
-8,
-86,
68,
55,
6,
32,
70,
-116,
-127,
-56,
42,
-112,
53,
0,
-120,
115,
36,
-121,
-10,
15,
-103,
8,
98,
103,
32,
13,
-25,
94,
-88,
110,
-98,
15,
-90,
-62,
88,
83,
40,
-66,
-99,
84,
4,
-89,
126,
-1,
-52,
31,
44,
-127,
-49,
-108,
-109,
-97,
-32,
-104,
3,
-53,
-91,
-111,
101,
-53,
-86,
92,
101,
54,
-101,
15,
-87
] |
George Rose Smith, J.
This case began as a suit by the appellants, the Bossner heirs, to require Jeffery Construction Company to render an accounting under a lease by which the Bossners had authorized Jeffery to remove dirt from a forty-acre tract at a royalty of ten cents a cubic yard. The case became a boundary dispute when Kelton Brown, Jr., an adjoining landowner, intervened and asserted title by adverse possession to part of the leased land. Jeffery admitted its liability to one claimant or the other and deposited the accrued royalties in the registry of the court. This appeal is from a decree sustaining Brown’s claim of title by adverse possession and dividing the royalties in the ratio of the parties’ proportionate ownership. The principal question is whether the proof supports the chancellor’s conclusion upon the issue of adverse possession.
The common boundary between the two forty-acre tracts runs north and south. Brown, whose land lies to the east, contends that for many years the two parcels were actually separated by a fence that ran southwesterly (instead of due south) from the northwest corner of Brown’s tract and thereby enclosed a triangular piece of land that originally belonged to the Rossners. Much of the evidence adduced at the trial related to the existence of this fence.
The decided weight of the testimony shows that the fence existed for some 20 years immediately preceding the institution of this suit. In 1937 a disinterested survey of the general area was made in connection with a drainage proposal. We are strongly impressed by the fact that the map prepared in connection with that survey shows the fence in question, running southwesterly from the section corner to Fourche creek. The continued existence of the fence in 1944 was established by the witness Burrow, who farmed the land in that year. Another witness, Yancey, said that the fence was in fairly good repair when he considered buying the land in 1948 or 1949. Brown’s father, who has acted for his son all along, bought the land in 1954 and cultivated it up to the fence every year until the highway department condemned a right of way along the boundary in 1959. H. W. Brown testified that the fence had been in existence for 20 or 25 years. Three witnesses were able to point out the boundary upon an aerial photograph, indicating that the evidence of possession was plainly visible.
There is really no convincing testimony to rebut the strong proof presented by the appellee. Those of the Rossner heirs who testified had apparently not been on the land for many years and had little personal knowledge of the facts in issue.
Despite the appellee’s persuasive proof of adverse possession the appellants insist that the testimony is fatally deficient in that one of Brown’s predecessors in title, Kurt Ketscher, died in 1953 and so was not available to testify that he intended to hold adversely to the Rossners during the years of his ownership. It is argued that without Ketscher’s testimony Brown did not meet the burden of proving adverse possession for seven years.
This contention is unsound. “The ‘adverseness’ of the possession . . . does not consist alone of mental intentions, but it must also be based on the existence of physical facts which openly evince a purpose to hold dominion over the land in hostility to the title of the real owner, and which will give notice of this hostile intent. A possession, it appears, is adverse to the true owner when it is unaccompanied by any recognition, express or inferable from the circumstances, of the right in the latter.” Tiffany, Real Property (3d Ed.), § 1142. “When the evidence tends to show that the possession has all the qualities of an adverse holding, the law presumes that such possession is adverse, absent evidence to the contrary.” Thompson, Real Property, § 2544. There is nothing to indicate that Ketscher’s open and notorious possession was permissive or subordinate to the Rossners’ title. The chancellor was therefore justified in concluding that the necessai’y hostility of intent existed. If this were not so it would often be impossible to prove adverse possession after the death of the person who had acquired title in that way.
A second contention is that the appellee is estopped to claim title to the triangle in dispute. When the highway department condemned its right of way it paid the Rossner heirs in accordance with the record title. It cannot fairly be said that the failure of Kelton Brown, Sr., to protest that payment, if indeed he had detailed information about it, so misled the Eossners that Brown, Jr., should be estopped from claiming the royalties from land that was really his.
When the highway department discovered that there was a discrepancy between the true boundary line and the location of the fence it notified Jeffery Construction Company, which held leases upon both tracts. The witness Toliver, an agent of Jeffery, testified that he then informed the Eossners and Brown, Sr., of the discrepancy. Before the fence line was obliterated by' the road contractor’s bulldozers Toliver, at Kelton Brown’s suggestion, caused offset stakes to be erected so that the location of the line could still be determined. The Eossners insist that the elder Brown should have brought the matter to their attention before the bulldozers cleared the area, so that they could inspect the fence line while it still existed. There is no good reason to penalize the appellee because his father was diligent in preserving the evidence of the line. Nothing in the proof indicates that Jeffrey’s men, who were apparently disinterested in the controversy, favored either side in the location of the offset stakes. While it is regrettable that the Eossners did not act promptly in the matter and have the satisfaction of verifying the fence line before it was obliterated, this circumstance does not give rise to an estoppel precluding the appellee from claiming what belongs to him.
A final suggestion is that the statute of limitations should not be held to bar two of the Eossner heirs, because they are minors. The statute began to run during the lifetime of their ancestor, who died in about 1949, and consequently it was not arrested by his death. Bender v. Bean, 52 Ark. 132, 12 S. W. 241.
Affirmed. | [
-15,
70,
-104,
-52,
-104,
-32,
56,
-70,
107,
-85,
-11,
119,
-19,
74,
20,
55,
-61,
61,
85,
57,
-25,
-77,
83,
-106,
-16,
-13,
-69,
-3,
-22,
77,
-10,
85,
12,
48,
-54,
95,
98,
-94,
-51,
-104,
-50,
4,
-87,
109,
-47,
80,
52,
107,
114,
79,
85,
62,
-13,
44,
49,
-29,
9,
62,
-5,
41,
65,
-7,
-74,
4,
125,
31,
1,
87,
-126,
3,
-56,
26,
-112,
61,
-128,
40,
115,
-74,
-106,
116,
5,
25,
8,
-90,
98,
1,
-19,
-25,
-32,
-104,
14,
-13,
-119,
-90,
-42,
8,
-61,
40,
-66,
-75,
120,
64,
-25,
126,
-28,
69,
93,
104,
37,
-49,
-106,
-94,
-113,
-72,
-116,
7,
-21,
-75,
49,
112,
-49,
-118,
93,
103,
117,
-101,
15,
-55
] |
George Rose Smith, J.
The appellees, Marshall Stanley and his wife, owned a rectangular tract of about 67 acres in Saline county. This is an action by the highway commission to condemn 18.03 acres for a 350-foot right of way running diagonally across the Stanleys’ land. After the taking the landowners will be left with two triangular parcels, one of about eight acres lying northwest of the new highway and the other of about 41 acres lying southeast of it.
This appeal questions a verdict and judgment awarding the appellees $150,000 for the 18.03 acres. For reversal the commission contends that the verdict is not supported by substantial competent evidence and that the trial court erred in refusing to permit the condemnor to make exploratory drilling tests upon that part of the land not being taken. We are of the opinion that the commission is right in both contentions.
Stanley testified that he bought the land in 1943 for about $8.00 an acre. The tax assessor testified that the 1960 assessment of the entire 67 acres, at 20 per cent of its value, was $440, indicating a worth of about $32.50 an acre. One of the appellees’ witnesses, a real estate dealer, valued the land, apart from its minerals, at $200 an acre, or $3,600 for the parcel being taken. The highway commission offered the testimony of two real estate appraisers; one fixed the value of the 18.03 acres at $3,500, the other at $3,750.
The verdict of $150,000 finds the land being condemned to be worth about $8,320 an acre. The appellees insist that this figure is supported by testimony tending to show that the tract contains valuable mineral deposits.
Two kinds of minerals have been found within the tract and extracted commercially. The first, referred to as white gravel, is used in surfacing driveways and walks. Drilling tests indicate that the tract contains 34,966 cubic yards of this gravel. Stanley has been selling it since 1943 for $2.00 a yard. His loading and severance tax expense is 15£ a yard, leaving a return of $1.85 for the gravel.
The second mineral is a fairly pure mixture of sand and gravel that can be used as the aggregate in the manufacture of concrete. Concrete that is made from this aggregate, with cement and water, is suitable for the production of septic tanks, grease traps, and well tile. The appellees’ tests indicate that the tract contains 241,759 cubic yards of this concrete aggregate.
The appellees relied upon three witnesses in their attempt to establish the value of the mineral deposits. Stanley himself described the physical characteristics of the land and recounted his experience in selling white gravel. He said that in seventeen years he had made from 100 to 150 sales in the Benton area. That would be a sale about every six weeks. The average volume of each sale is not shown. Stanley also explained the process by which he used the aggregate in the manufacture of septic tanks, grease traps, and well tile. He gave the yield from a yard of raw material and the selling prices for the finished products. This information, however, could not have been of any help to the jury, for there is no testimony about such essential factors as the cost of the cement, the labor expense, and the volume of sales.
After this introductory testimony Stanley stated that in his opinion the tract taken is worth twenty million dollars. This figure is arbitrary in that it has no relation whatever to any fact in the record. Stanley made no effort to say how he arrived at his valuation; it seems to have been plucked from the air and might equally well have been ten thousand dollars or a hundred million dollars. Even the opinion of an expert in the field of land valuation is not substantial evidence if he fails to show a fair or reasonable basis for his conclusion. Ark. State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738. There is still less reason for finding the fanciful figure fixed by Stanley to be a sufficient foundation for the verdict in this case.
The appellees’ other two valuation witnesses were allowed to arrive at an opinion by multiplying the number of yards of each material by a fixed unit price. The witness Kimzey, a retired geologist not possessing any demonstrated expert knowledge of values, testified that 300,000 yards of concrete aggregate, at $5.00 a yard, would be worth $1,500,000; that 34,966 yards of white gravel, at $1.85 a yard, would be worth $64,687.10; and that these figures, when added to a land value of $3,600.00, produced a total valuation of $1,568,287.10. The third witness, a real estate broker, used a similar method of computation in arriving at a valuation of $2,311,347.00.
The practice of determining value by multiplying the number of yards or tons of material by a unit price has, as Orgel points out, been uniformly rejected by the courts. Orgel, Valuation Under Eminent Domain (2d Ed.), § 165; Nichols on Eminent Domain (3d Ed.), § 13.22. Well-reasoned decisions include United States v. 620 Acres, D. C. Ark., 101 F. Supp. 686; United States v. 765.56 Acres, D. C. N. Y., 174 F. Supp. 1; Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 334 P. 2d 315; Gulf Interstate Gas Co. v. Garvin, Ky., 303 S. W. 2d 260; State v. Mottman Merc. Co., 51 Wash. 722, 321 P. 2d 912.
We had occasion to touch upon the rule in Ark. State Highway Comm. v. Cochran, 230 Ark. 881, 327 S. W. 2d 733, where we said: “As a general rule the market value of a tract of land cannot be determined simply by estimating the amount of stone or other mineral that it contains and then multiplying that estimate by a fixed price per unit.”
The exclusionary principle is plainly sound. The ultimate question for the jury is the market value of the land, the price that would be agreed upon by a willing buyer and a willing seller in a transaction at arm’s length. The mechanical process of assigning a retail value to every yard of mineral within the earth does not carry the jury beyond the realm of guesswork. That narrow formula fails to take into account vital considerations such as the cost of excavating the material, the cost of processing it, overhead expenses, the market for the finished product, and so on. In the case at bar the jury had almost no information about these matters. If the jurors had assumed without proof that an average order for white gravel for a driveway was, say, ten cubic yards, they might readily have determined that it would take Stanley almost 400 years to sell the deposits in the tract if the demand continued at the same rate as in the past. Obviously no purchaser would pay full retail value for the gravel in place in order to hold it for decades or centuries before recovering his investment. But what would he pay? The appellees’ proof left the jury without the facts needed for an answer to this question.
We are cited principally to our decision in City of Little Rock v. Moreland, 231 Ark. 996, 334 S. W. 2d 229, where we upheld a finding that a tract of land in Pulaski county, containing bloating clay that could be used in the manufacture of a lightweight concrete aggregate, had a fair market value of about $181 an acre. There is little resemblance between that case and this one. There, as the opinions indicate, the litigants produced the best expert testimony that could be found, the judgment of men engaged in the business with actual experience in the matter of locating and constructing new plants for the production of lightweight aggregate. They had familiarized themselves with the pertinent considerations, such as the cost of erecting and operating a plant, the amount of the finished product that the market available to a Pulaski county plant could be expected to absorb, the availability of mineral deposits in addition to those within the land being condemned, and the competition to be expected from other building materials. The final decree in that case rested upon comprehensive proof of a substantial nature. Similar evidence is not to be found in the present record.
The second issue is the matter of discovery. Before the trial the highway commission, having been refused access to that part of the appellees’ land not being condemned, applied to the court for an order permitting it to enter this land and make test drillings for the purpose of determining the extent of the mineral deposits therein. In response to this motion the appellees waived their claim to severance damages and used that waiver as a basis for contending that the condemnor was not entitled to explore the rest of their land. The court sustained the landowners’ position and entered an order declaring that no proof would be received concerning the physical characteristics of the land not being taken.
This was error. Our discovery statute provides: “Upon motion of any party showing good cause therefor . . . the court in which an action is pending may . . . order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation thereon.” Ark. Stats. 1947, § 28-356.
The language of this statute was taken verbatim from Federal Rule 34. It follows that our legislature, in adopting the wording of the federal rule, also adopted the principle of liberal construction that had been announced in the leading case of Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385: “We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.”
The discovery provision authorizing an entry upon land is to be liberally construed. United States v. Nat. Steel Corp., D. C. Tex., 26 F. R. D. 603. The extent to which a discovery order may go is well illustrated by the holding in Williams v. Continental Oil Co., 10th Cir., 215 F. 2d 4, cert. den. 348 U. S. 928, 99 L. ed. 728, 75 S. Ct. 341. The question was whether the defendant’s oil well had been drilled so far off the perpendicular as to invade the plaintiff’s land. The trial court refused to allow the plaintiff to enter the land and made a directional survey, which would involve unseating the pump at the bottom of the well and pulling out all the tubing, with some danger to the future productivity of the well. 14 F. R. D. 58. The court of appeals reversed this order and permitted the survey, reasoning that good cause had been shown simply because if the plaintiff could not obtain the desired information by means of the requested survey it could not be obtained at all. The possibility that the well might be damaged was met by the requirement of an indemnity bond.
In the granting or refusal of an order for discovery the two controlling considerations are relevancy and good cause. Barron & Holtzoff, Federal Practice and Procedure (1961), § 793. Here it is plain that the appellees’ waiver of severance damages did not destroy the relevancy of the information sought by the highway commission. Severance damages are compensation for the landowner’s loss in having his property cut in two. With those damages out of the case the remaining issue is the market value of the tract being taken. If the existence of other nearby mineral deposits has any relevancy to the question of market value then the disclaimer of severance damages is not a bar to the commission’s right to discovery.
It can hardly be seriously denied that the market value of lands containing non-precious minerals such as this white gravel and concrete aggregate is directly affected by the abundance or scarcity of similar deposits in the vicinity. If the appellees owned the only such deposits in Saline county they would evidently be in a position to demand a better price for their land than would be the ease if the minerals could be found almost anywhere in the county. Consequently it is important for the condemnor to be in a position to prove the existence of other deposits. Specifically, if it should be found that the rest of the appellees’ land contains more white gravel and concrete aggregate than they can be expected to sell in the indefinite future, that fact directly affects the market value of the tract being taken and is a proper matter for the jury’s consideration.
Good cause for the discovery order exists. The statute provides that the court may permit an entry upon a party’s land for the purpose of inspection. There is no practical way to inspect minerals in place except by such test drilling as both parties have already engaged in upon the tract being condemned. The exploratory holes appear to be three inches in diameter and are refilled immediately, so that there is no suggestion of any injury to the land. We are therefore of the opinion that the highway commission is entitled, at a reasonable time in advance of a retrial, to an order permitting it to enter upon the land for the purpose of ascertaining the extent of mineral deposits therein. Of course the commission may be required to give a bond if the landowners undertake to show, as they have not yet done, that the drilling may damage the land.
Reversed and remanded for a new trial.
Bohlinger, J., not participating. | [
-9,
106,
-76,
28,
59,
-32,
58,
-70,
73,
-87,
-11,
83,
45,
10,
16,
35,
-89,
61,
84,
-21,
-26,
-77,
83,
115,
-110,
-13,
115,
-51,
-70,
93,
-76,
-43,
76,
0,
-54,
21,
34,
-88,
77,
88,
-50,
4,
-88,
77,
-39,
32,
60,
47,
50,
15,
113,
-113,
-13,
44,
28,
-61,
9,
46,
27,
45,
81,
-8,
-78,
-97,
95,
6,
49,
-58,
-112,
-121,
-40,
42,
-104,
53,
0,
-8,
119,
-90,
-122,
116,
7,
-101,
-116,
-88,
99,
1,
73,
-27,
104,
-116,
15,
-5,
-119,
-90,
-122,
24,
83,
97,
-97,
-107,
124,
80,
98,
122,
-18,
-59,
89,
108,
-125,
-117,
-14,
-77,
15,
56,
-100,
19,
-21,
-123,
50,
116,
-53,
-78,
94,
71,
112,
-101,
7,
-96
] |
Hughes, J.
(after stating the facts). The objections of the appellant to the admission in evidence by the circuit court of the various tax-deeds showing the sale of the lands for taxes, on the ground that no foundation was laid, showing forfeitures and the legality of tax sales, is not tenable, as the deeds themselves make a prima facie case of compliance with the law in all steps taken by the officers of the law, prior to and including the sales, unless the deeds were void on their faces, which is not contended.
There was no error in the court’s permitting satisfaction of the Guthrie mortgage, as the decree of foreclosure provided for the redemption of the lands sold thereunder, and it was doubtless understood between the parties that they could be redeemed.
■ There was no error in the court’s refusal to give instructions as asked by defendant below, as the decree was not in invitum, but by agreement and consent of the parties, in accordance with which the deed was executed, for breach of covenant against incumbrance in which this action was brought.
There was no prejudicial error in the instructions given by the court. The principles of law which they announce are correct.
There was evidence which showed a breach of the covenant against incumbrances, and that the legal title to the land, to which this controversy relates, was defeated, and this was equivalent to eviction, the lands being wild and unoccupied. It was ascertainable, from the evidence, what the proportion of the value of the land lost bore to the whole number of acres sold. The measure of damages for breach of covenant of warranty, in a deed to land, against incumbrances, where the covenantee discharges the incumbrance, is the reasonable amount required to discharge the incumbrance, with reasonable cost of procuring the discharge. But in no event can this amount exceed the amount of the consideration paid with interest. It is competent to show the real consideration to be more or less than that mentioned in the deed, though the recital that there was a consideration cannot be contradicted. But, where the covenantee’s title is entirely defeated by the incumbrance being changed into a title adverse and indefeasible, the plaintiff is entitled to recover the money he paid for the land with interest. Jenkins v. Hopkins, 8 Pick. 346; Chapel v. Bull, 17 Mass. 213; Patterson v. Stewart, 6 W. & S. 527; Willets v. Burgess, 34 Ill. 500; Willson v. Willson, 5 Foster (N. H.), 235; 4 Kent, Com. 474. The purchaser need not wait till he is evicted, but may satisfy the incumbrance, and then bring this action to recover for breach of the cove iiant of warranty against incumbrances. Delavergne v. Norris, 7 Johns. 358; Stanard v. Eldridge, 16 Johns. 254; Garrison v. Sandford, 7 Halstead, 261. In such a •case, the measure of damage is the reasonable amount required to discharge the incumbrance and the cost of the discharge. “Yet the purchaser is not bound to buy in the incumbrance, though it be offered to him on moderate terms.” Miller v. Halsey, 2 Green, 48. When the incumbrance is changed into a title adverse and indefeasible, the criterion of recovery, if less than the whole land is lost, is so much of the consideration paid as is proportioned to the land lost. Hunt v. Orwig, 17 B. Monroe, 85.
There was evidence upon which the jury might have found the verdict they returned in the case.
Finding no error, the judgment is affirmed.
The Hon. J. F. Riddick did hot participate in the consideration and determination of this cause, having presided as circuit judge at the trial in the court below. | [
-15,
124,
-40,
45,
-118,
64,
43,
-120,
-55,
-91,
38,
83,
-17,
-126,
0,
41,
-96,
57,
97,
42,
85,
-78,
55,
3,
-10,
-45,
-39,
84,
-75,
77,
-25,
71,
76,
48,
-62,
-11,
103,
-118,
-59,
-48,
78,
-121,
-120,
77,
-15,
64,
52,
43,
64,
13,
97,
-114,
51,
44,
29,
71,
73,
40,
75,
49,
-48,
-8,
-68,
-115,
95,
7,
49,
37,
-104,
67,
-22,
42,
-112,
49,
1,
-24,
115,
-74,
-106,
116,
13,
27,
41,
96,
102,
0,
-23,
-17,
-8,
-104,
38,
-2,
13,
-90,
-109,
88,
11,
108,
-65,
-99,
100,
64,
46,
124,
-30,
20,
95,
108,
13,
-113,
-44,
-89,
-115,
124,
-104,
3,
-10,
3,
48,
113,
-49,
-66,
93,
101,
16,
-101,
14,
-37
] |
Hughes, J.
The appellant brought this action to recover a stock of goods, or its value, which had been seized by the appellee, as sheriff of Crawford county, by virtue of writs of attachment against the property of R. C. Lytal. The appellant claimed title to the goods by virtue of a purchase of and bill of sale for the same, executed by Lytal to him, on the 21st of November, 1888.
The appellee denied the title of the appellants, and alleged that the title to the goods was in Lytal; and that the alleged sale of them to the appellant was fraudulent and void as to creditors, etc.
There was some conflict in the testimony, and as , tne judgment must be reversed, for misdirection as the law, we refrain from comment upon the evidence, It is proper to say, however, that the testimony tending to show the financial condition of the appellant from 1885 to 1888, and the testimony as to what Lytal had said, previous to the sale, about selling out to plaintiff with the intention of paying his home creditors all he owed them, and settling with foreign creditors at fifty cents on the dollar, and the testimony of L. C. Locke that he did not think Lytal tried to get one of his employees to help him make an inventory, and that he (Locke) advised Lytal to take stock, as it might cause him trouble if he sold in bulk, and that it was his understanding from Lytal that he sold in bulk (all of which was objected to by the appellant) was not error, as all of it except the testimony of L. C. Locke tended to show circumstances that might throw light upon the intention with which the sale was made; and the testimony of Locke was competent to contradict Hiner, who had testified and had denied making the statement testified to by Locke.
The court gave to the jury eleven instructions, and we find no substantial error in any of them, save the tenth and eleventh, which are erroneous and, we think, prejudicial to the appellant, as there is conflict in the testimony, and we cannot say what the verdict of the jury might have been but for these instructions. It was the right of the appellant to have the law properly declared. These instructions are as follows : “(10) The payment of a full consideration of all the proceeds of the assets of the sale to the payment of debts repels, the presumption of fraudulent intent upon the part of the debtor. If, however, the circumstances are sufficient to put the purchaser upon inquiry, he must see to it, and know how the money is applied in payment of the grantor’s debts, and cannot rely upon a declaration of the grantor to so apply it. (11) The court further instructs you that if you believe that Lytal owned more than his personal exemptions, and appropriated any material portion of the proceeds of this sale, over and above his personal exemptions, and left unpaid any of the debts of his creditors, that this is a fraud upon his creditors.”
These instructions are both to the effect that it was the duty of the appellant to see to the application by Lytal of any purchase money paid him by Hiner to the payment of Lytal’s creditors. This was erroneous, and is not the law. In case of a trust, “a purchaser from a trustee is not bound to see to the application of the pur chase money, except where the sale is a breach of trust on the part of the trustee, and the purchaser has, either from the fact of the transaction, or otherwise, notice or knowledge of the trustee’s violation of duty.” Elliot v. Merry man, 1 White & Tudor’s Leading Cases in Equity, p. 109. The doctrine above stated has no application in a case like this. There was no error in refusing to give the instructions that were refused. For the error in giving the 10th and 11th instructions, the judgment is reversed, and the cause remanded for a new trial. | [
-16,
-28,
-68,
61,
56,
96,
42,
-70,
65,
-96,
36,
83,
79,
66,
17,
107,
-30,
-3,
117,
107,
-18,
-77,
19,
-93,
-46,
-13,
89,
-59,
-76,
76,
-18,
-41,
13,
32,
-54,
25,
102,
-64,
-59,
30,
-114,
-127,
56,
108,
-39,
96,
52,
59,
20,
74,
97,
22,
-13,
40,
29,
-37,
105,
45,
107,
-70,
64,
-72,
-101,
-115,
-1,
20,
17,
2,
-104,
67,
-6,
14,
-104,
53,
4,
-24,
123,
-74,
-126,
-44,
33,
-119,
8,
102,
39,
33,
69,
-17,
58,
-120,
46,
-66,
-99,
-90,
-112,
88,
99,
104,
-65,
-99,
110,
-48,
6,
124,
-22,
-100,
20,
108,
3,
-49,
-106,
-109,
45,
52,
-98,
83,
-33,
-119,
52,
113,
-49,
-85,
93,
7,
18,
-69,
-113,
-105
] |
Neill Bohlinger, Associate Justice.
This appeal presents two law suits concerning the same tract of land, which suits were consolidated and tried in the Columbia County Chancery Court.
On November 8, 1933, E. H. Harrell was the owner of forty acres of land in Section 10, Township 15 S, Range 20 W, and on this date he conveyed this forty acres of land to G. M. Wesley and wife. G. M. Wesley’s wife was Bertha Wesley and this couple had no children, although G. M. Wesley and Bertha Wesley each had a child or children by former marriages.
G. M. Wesley and Bertha Wesley were divorced in 1951 and Bertha Wesley moved to California. In 1954 G. M. Wesley executed his deed to this forty acres of land to Collie Wesley, a son by a former marriage. In this deed Bertha Wesley did not join. G. M. Wesley died in 1955 and Bertha survived him.
Joella C. Gunnels and Maxine S. Ainsworth appear as the owners of a 5/8 mineral lease on this property and this lease is not questioned here. After the deed from G. M. Wesley to his son, Collie, the appellees unsuccessfully endeavored to obtain a lease from Collie on the remaining 3/8 of the mineral rights but the appellant, M. H. Smart, acquired this lease.
Under the lease held by the appellees they were required to secure oil production on the land by February 10,1959 and failing to do so, their lease would terminate. It appears that the appellees endeavored to have the appellant join with them in their effort to secure production but the appellant declined. Thereafter the appellees drilled a well and secured production. The parties, appellant and appellees, then agreed between themselves for the installation of a pipeline from the tank batteries to Sohio Petroleum Company to care for the oil produced on the land involved.
In order to market the oil from the property it was necessary that an abstract of title and a title opinion be secured and the parties hereto appear to have agreed on securing the abstract at their joint costs.
When the abstract was examined by counsel it was discovered that Bertha Wesley had an interest in the land involved and it further appears that the examining attorney endeavored to contact the appellant and advise him of this fact. However, the appellees became aware of this situation before the appellant was advised and the appellees dispatched an emissary to California where there was secured a mineral lease from Bertha Wesley to the appellees conveying the remaining 3/8 interest in the minerals on the land and this lease was promptly placed on record in Columbia County where the land is situated.
The appellant brings this action and raises six points for a reversal of the decree of the chancellor wherein it had been found that the appellees were the owners of the lease to the entire mineral rights in the property.
The controlling questions that must first be decided are the appellants’ contentions that the deed from Harrell and wife was a conveyance without limitation and no estate by the entirety was evidenced by the deed; that the deed was not ambiguous, and that the chancellor erred in taking testimony in order to arrive at the intent of the parties to the deed.
The deed is ambiguous and the chancellor was correct in taking testimony to establish the intention of the parties. A deed, like the evidence of any other contract, should be examined to ascertain the intention of the parties. We do not have the original deed but the copy in the abstract presents a deed that reflects poor draftsmanship. The preamble to the deed recites that the consideration for the property was paid by “G. M. Wesley and wife”. The granting clause was worded to “G. M. Wesley and wife and to his heirs and assigns forever”. The habendum clause contained the words “unto the said G. M. Wesley and unto his heirs and assigns forever”. The clause relinquishing dower and homestead by Mrs. Harrell was worded “relinquish unto the said G. M. Wesley all my rights”. The warranty clause reads: “And we hereby covenant with the said G. M. Wesley, E. H. Harrell that we will forever warrant and defend the title to the said lands against all claims whatever”. It thus appears in this last clause that Harrell was warranting title to himself.
In viewing this deed we first take into consideration the fact that Bertha Wesley was the daughter of E. H. Harrell, the grantor in the deed. Bertha Wesley and G. M. Wesley had no children but G. M. Wesley had children by a former marriage. A logical assumption at this point would be that the natural bonds of blood and affection would prompt the grantor, Harrell, to make provision for his daughter, Bertha Wesley. But aside from any assumption, the deferred payments on the land were made by the joint efforts of Gr. M. Wesley and Bertha Wesley, his wife, who worked the land and in addition, Bertha Wesley owned some timber which she sold and applied the proceeds on the payment on the property from all of which we must assume that she was something more than a nominal party. This court faced a similar problem in the case of Redmon v. Hill, 233 Ark. 45, 342 S. W. 2d 410. There the deed was made to Duncan Hill and Emma Hill and the granting clause contained the words “unto his heirs and assigns”. [Emphasis ours.] In reversing the chancellor and holding that an estate by the entirety was created in Hill and his wife, we said:
“* * * the Chancellor took the view that our decision in the case of Harmon v. Thompson, 223 Ark. 10, 263 S. W. 2d 903, precluded him from holding the deed conveyed an estate by the entirety to Hill and his wife. In this we think the Chancellor was in error. In two important respects the facts in the Harmon case are easily distinguishable from the facts in the case under consideration. One, in the cited case it is clear, because of the erasures and changes, that the word ‘his’ was deliberately and purposely used instead of the word ‘ their ’. Such is not the case here. Two, in the cited case the all important fact of intent is not definitely shown, as it is in this case. It may be also added in this connection that there is substantial evidence that Mrs. Hill furnished a large part of the money to pay the debt owing Meyer. This fact substantiates the direct evidence on the matter of intent. The decision and the reasoning in the Harmon case is sound, but it is based entirely upon the peculiar facts of that case. In the case of Jackson v. Lady, 140 Ark. 512, at page 523, 216 S. W. 505, at page 508, this court said: ‘In the construction of a deed like any other contract it is the duty of the court to ascertain, if possible, the intention of the parties, especially that of the grantor.’ To the same effect is the decision in Carter Oil Co. v. Weil, 209 Ark. 653, 192 S. W. 2d 215, 217, where it was stated that: ‘All deeds are to he construed favorably, and as near the intention of the parties as possible, consistently with the rules of law.’ ”
Viewing this case in the light of the authorities cited and viewing it from every angle, we think the chancellor was correct in finding that an estate by the entirety was intended to be conveyed to G. M. and Bertha Wesley and the deed was properly so construed, and that Bertha, as the survivor, had the fee.
The appellant contends, however, that since the parties had agreed on a partition of the land between themselves so as to prevent cross-drainage, the contract constituted a joint adventure. It must be borne in mind, however, that at the time the agreement to partition was made, the appellant had held himself out as the owner of a 3/8 interest in the minerals on the land which position was lost to him when it was determined that Bertha Wesley, as a survivor in the estate by the entirety, was the owner of the fee and that the deed from G. M. Wesley to Collie Wesley conveyed nothing.
We find nothing that indicates a joint adventure. In discussing the essentials of joint adventure, this court in State, Ex Rel. Attorney General, v. Gus Blass Co., 193 Ark. 1159, 105 S. W. 2d 853, said:
“To constitute a joint adventure, there must be the elements of a partnership. As between the parties themselves there must have been an intention to form a partnership as expressed in the contract or gathered from acts of the parties and circumstances which may interpret such agreements. As between themselves or third parties, ‘there are certain requisites necessary before the law will in any event regard the relationship as that of partners. The requisites of a partnership are that the parties must have joined together to carry on a trade or adventure for their common benefit, each contributing property or services and having a community of interests in the profits.’ Meehan v. Valentine, 145 U. S. 611, 12 S. Ct. 972, 36 L. Ed. 835. The doctrine announced in this case was quoted with approval in Cully v. Edwards, 44 Ark. 423, 51 Am. Rep. 614. That case was followed in Roach v. Rector, 93 Ark. 521, 123 S. W. 399, in which it was stated in effect that the parties to the contract must be co-principals in the business, and if it is owned by one, and the other receives the profits or a portion thereof, for services or otherwise, the relationship of partners does not exist. Quoting further from that case, it is said: ‘As between the parties themselves, before it has been said that the relationship of partners has been created, it is essential that the parties themselves intended by the effect of their contract to form such a partnership business, and that they should have a common ownership and community of interest in the properties of the business, and they should share in some fixed proportion in the profits thereof only as profits of the business.’
These rules apply not only to a general partnership, but to a limited one, a joint adventure.”
While the appellants did agree to provide part of the costs of a pipeline to care for the oil from the property, mere joint ownership of the property does not constitute joint adventure and after the pipeline had been laid, that undertaking was at an end. The appellant contends further that his agreement to pay one-half the costs of the abstract and title opinion brings his transaction within the realm of a joint adventure. We do not so view it. Before the oil from the property could be marketed it was necessary that an abstract and title opinion be procured. If the appellant did not join with the appellees in procuring these two things and bearing only one-half the costs he would have been faced with the necessity of procuring his own abstract and title opinion and the most that can be said of his action in this particular is that he was exercising good business judgment.
As to the matter of advance notice in regard to the title, we find that the attorney examining the abstract endeavored to locate the appellant at the time he prepared his opinion but was unable to do so. However, the appellant knew who the attorney was and he could have prepared for the eventuality. The appellees, on securing the information, moved promptly and we find nothing in the record which indicates that the relationship between the parties was such that the appellees were under any obligation to convey the information in regard to the title to the appellant.
Appellant’s final point is that he acquired interest in good faith for value without notice of claims of appellees, who are barred by laches and estoppel. We find no merit in this contention. The deed from Harrell and wife to Wesley and wife had been on record since February 5, 1938 and all matters touching the interest of the various parties hereto were matters of public record and the appellant is held to have proceeded in full knowledge thereof.
The decree of the chancellor is in all things affirmed. | [
113,
108,
-40,
-51,
-86,
-32,
40,
-110,
73,
-93,
-25,
83,
-51,
-40,
4,
125,
-57,
47,
101,
107,
-93,
-73,
91,
0,
16,
-13,
-7,
-49,
-79,
93,
-10,
87,
72,
2,
-54,
85,
-62,
-120,
69,
-36,
-50,
4,
-119,
-24,
-39,
-126,
52,
107,
118,
15,
81,
-114,
-15,
45,
61,
98,
-119,
46,
123,
57,
89,
-72,
-85,
22,
61,
16,
-127,
38,
-112,
-127,
72,
26,
-104,
-75,
0,
-8,
26,
-90,
-122,
116,
10,
-69,
8,
54,
103,
35,
-92,
-17,
-23,
24,
15,
-70,
-99,
-90,
-10,
72,
-77,
98,
-66,
31,
116,
112,
23,
118,
72,
-123,
95,
60,
4,
-89,
-42,
-125,
15,
108,
-100,
19,
-29,
-105,
54,
112,
-55,
-94,
92,
7,
57,
31,
7,
-80
] |
Sam Robinson, Associate Justice.
Appellant, Belton Cecil, appeals from a conviction of a misdemeanor, for which he was fined $99. He was charged in an information filed by the prosecuting attorney with the offense of “allowing a fire to escape.” It is further alleged in the information that he allowed the fire to escape from his control after having built said fire and permitted it to spread to the lands of Lehman Gilley. On appeal appellant first contends that the evidence is not sufficient to sustain the verdict of guilty. It is not disputed that about four or five o’clock on March 28, 1960, appellant set fire to some grass in a meadow he owned. To the north and east of this meadow there is a creek about 16 feet wide. About 18 feet from the water’s edge there was a dead tree, which became ignited from the fire set by appellant. The State contends that the next day the top burned out of the tree and fell across the creek, starting a fire on the east side thereof. Appellant contends that although the tree did catch fire, he extinguished it late on the evening of the 28th and that it was not burning the next day, the morning of the 29th. In any event, about 500 acres, including the land of Lehman Gilley, east of the creek, burned and there is ample evidence from which the jury could have found that the State’s version of what occurred is correct.
Among other testimony produced by the State, Lehman Gilley testified:
“A. I traced the fire back to the opposite side of the field where Mr. Cecil was setting the fire.
Q. How did you do that?
A. It was burned over, and was bordered by a little draw next to the creek, and on the north and on the west and southwest was the Barren Creek, and there was a tree that had been afire the evening before along there where he had burned the field, and the top had burned out and fell in and across the creek.”
Appellant was prosecuted under the provisions of Ark. Stat. § 41-507, which make it a misdemeanor to be punishable by a fine of not less than $10 nor more than $100 or a jail sentence of not less than ten days nor more than a year, or by both fine and imprisonment, for (paragraph 2) “Allowing fire to escape from the control of the person building or having charge of the fire, or to spread to the lands of any person other than the builder of the fire.” or (paragraph 3) “Burning any brush, stumps, logs, rubbish, fallen timber, grass, stubble or debris of any sort, whether on his own land or that of another without taking necessary precaution both before lighting the fire and at all times thereafter to prevent the escape thereof. The escape of such fire to adjoining-timber, brush, or grass lands shall be prima facie evidence that necessary precautions were not taken.”
The court, by instruction No. 7, told the jury:
“The section of law upon which this Information is based reads as follows, to-wit: ‘The following acts shall be misdemeanors and shall be punishable by a fine of not less than $10.00 nor more than $100.00, or a jail sentence of not less than ten (10) days nor more than a year, or both such fine and imprisonment.’
“ ‘Burning any brush, stumps, logs, rubbish, fallen timber, grass, stubble or debris of any sort, whether on his own land or that of another without taking necessary precaution both before lighting the fire and at all times thereafter to prevent the escape thereof. The escape of such fire to adjoining timber, brush or grass lands shall be prima facie evidence that necessary precautions were not taken.’ ”
And instruction No. 8 given by the court is as follows:
“So if you find from the testimony in this case beyond a reasonable doubt that the defendant, Belton Cecil, did, within one year prior to the filing of the Information herein, in Polk County, Arkansas, burn any brush, stumps, logs, rubbish, fallen timber, grass, stubble or debris of any sort, on his own lands without taking the necessary precaution both before lighting the fire and at all times thereafter to prevent the escape thereof, then you will find the defendant guilty, and fix his punishment by a fine of not less than $10.00 nor more than $100.00, or by a jail sentence of not less than ten days nor more than a year, or . by both such fine and imprisonment.”
Appellant complains of the giving of these two instructions, contending he was charged in the information with allowing “fire to escape” as set out in the second paragraph of the statute, and that the instruction authorizes the jury to return a verdict of guilty provided in the third paragraph of the statute. True, instruction No. 8 does authorize a verdict of guilty of violation of the third paragraph of the statute. It cannot be said, however, that a charge in the information in substantially the wording of the third paragraph of the statute, of allowing fire to escape “from his control after having built said fire, and permitting it to spread to the lands of Lehman Gilley,” is not sufficient to charge appellant with, doing the act that the State’s evidence showed him to be guilty of, to the satisfaction of the jury.
Appellant next complains of the court’s action in refusing to give instructions requiring the State to prove the venue. The trial court was not in error in refusing to give these instructions. Ark. Stat. § 43-1426 provides: “It shall be presumed upon trial that the offense charged in the indictment was committed within the jurisdiction of the court, and the court may pronounce the proper judgment accordingly, unless the evidence affirmatively shows otherwise.” See Meador v. State, 201 Ark. 1083, 148 S. W. 2d 653.
Appellant argues that the trial court erred in permitting the prosecution to impeach the defense witness Buck Smedley, without having laid the proper foundation for such impeachment. Buck Smedley testified in regard to another fire started by appellant having no connection with the fire involved in the case at bar. He testified he saw appellant at about 10:00 a.m., about one and a half miles south of the fire here involved, on the day both fires were burning. Jennie Mae Smedley, a relative of Buck Smedley, was allowed to testify on cross examination by the State’s attorney that Buck Smedley told her he had first seen appellant on the day of the fire at about 12:00 noon. We fail to see how this testimony could have in any manner been prejudicial to appellant. It will be recalled that appellant Cecil had set the tree afire, but he testified that he extinguished the fire and that he passed the tree the next morning and it was not burning at that time. Whether it was at 10:00 a.m. or 12:00 noon that Buck Smedley saw Cecil a mile and a half south of the fire is not material, and defendant was not prejudiced by the testimony of Jennie Mae Smedley.
Appellant argues other points, all of which we have examined, but we find no error.
Affirmed. | [
116,
-18,
-40,
60,
8,
-96,
122,
-126,
83,
51,
-12,
82,
-21,
-55,
13,
43,
-89,
125,
85,
105,
-42,
-73,
23,
67,
-78,
-45,
89,
-43,
-67,
79,
-10,
-41,
8,
48,
-54,
85,
-122,
72,
-59,
88,
-122,
5,
9,
112,
-39,
66,
54,
91,
18,
11,
17,
30,
-14,
42,
16,
-53,
73,
44,
-37,
-95,
89,
16,
-120,
13,
127,
16,
-95,
101,
-66,
3,
124,
58,
-40,
49,
0,
-4,
115,
-94,
2,
68,
3,
-104,
8,
-26,
-10,
1,
77,
-17,
-88,
-119,
15,
62,
-113,
-89,
-104,
8,
11,
-88,
-100,
-107,
124,
60,
-122,
100,
-30,
-123,
93,
108,
1,
-49,
52,
-95,
-50,
96,
-106,
51,
-21,
37,
100,
116,
-51,
-94,
84,
71,
48,
-101,
-114,
-43
] |
Carleton Harris, Chief Justice.
This is the second appeal relating to the property here involved. In the first appeal, McGuire v. Wallis, 231 Ark. 506, 330 S. W. 2d 714, we reversed the decree of the Hot Spring Chancery Court which found that Wallis had acquired title to the lands in controversy by adverse possession. The case' was remanded to that court for further proceedings. Following remand, Wallis filed a petition with the Chancery Court seeking reimbursement for improvements which he had made on the property. Appellees herein (Mrs. Katie McGuire, et al) then filed a motion in which they asserted, inter alia, that if Wallis “is given credit for the improvements he placed upon the property that he be held accountable for the timber which he sold off the land and for the rents he received”; further, that Wallis had enjoyed the use and benefit of the land. At the hearing, it was stipulated between counsel that the testimony in the prior ease should be made a part of the present record. Appellants’ purpose in petitioning the court was to offer specific proof as to the investment made in the property by Wallis. Counsel for appellees objected to any testimony which would vary the testimony relative to improvements in the previous trial. The court announced: ‘ ‘ The rule of the Court is that the testimony may be introduced and will be taken into consideration by the Court as tending to clarify the testimony already given in this case, but during the course of the trial if there is testimony introduced that tends to impeach witnesses, I will not permit that. At this time the Court rules that the testimony can be presented this afternoon on this particular case, and it will be considered by the Court solely to tend to clarify the general value as placed on the improvements in the previous trial.” Proof was introduced as to the costs of improvements, but the court refused to consider the testimony, basing its findings on the proof relating to improvements in the first case.
Counsel also requested that appellants be allowed to offer proof relative to rental value of the land, stating, '“This issue also was not in controversy in the original proceeding, and came into controversy as incidental to the main question then being tried.” The request was denied by the court. The court found that Wallis had made improvements consisting of two barns at a cost of $1,657, a stock pond at a cost of $294, a well at a cost of $164, and fences at a cost of $320, or a total of $2,435.. Other credits were allowed in bringing the entire total to $3,222.29. The court charged Wallis with the sale of timber off the lands in the amount of $560, and rent collections from the property in the amount of $1,500, or a total of $2,060. This left a net to Wallis of $1,162.29, but the court held that Wallis had had the use and occupancy of the property for sixteen years, and the rental value amounted to more than this net expenditure. Accordingly, no allowance was given Wallis for improvements or other items claimed in the decree which was subsequently entered, and appellants have appealed to this Court. For reversal, appellants rely upon four points, as follows:
“1. The Court erred in refusing to consider testimony regarding value of improvements made by Clovis Wallis;
2. The Court erred in refusing to permit Clovis Wallis to introduce proof regarding the rental value of the property while it was in his possession;
3. The Court erred in finding that the rental value of the property while it was in Clovis Wallis’ possession was $1,162.29;
4. The Court erred in finding that Clovis Wallis had collected $1,500.00 in rent while the property was in his possession.”
We proceed to a discussion of these contentions.
Appellants are correct in asserting that they were entitled to offer additional testimony relative to the improvements and rent. Normally, in chancery cases, if the proof has been fully developed to the point where we can determine all issues on the record before us, we decide such issues rather than remand the case. As appellants assert in their brief, the only question really before us in McGuire v. Wallis, supra, was whether Wallis had acquired title to the lands by adverse possession. This is the only issue discussed in the opinion, and the only mention of improvements relates to their pertinence to the question of whether Wallis committed acts so hostile to his co-tenants as to charge them with knowledge of his adverse claim. There is no reference to rents at all in the opinion.
While, as stated, appellants were entitled to have additional proof considered by the court, no relief can be granted on point one, for the nature of the proof offered by appellants was improper to establish the value of improvements. The proper criterion is not the cost — nor present value — of the improvements, but rather, the amount by which such improvements have enhanced the value of the land. This is the rule under what is generally known as the Betterment Act, § 34-1423, Ark. Stats., 1947. See Hutchinson v. Sheppard, 226 Ark. 509, 290 S. W. 2d 843; McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88. In the latter case we said:
“The value thereof is based upon the enhanced value which these improvements at the time of the recovery impart to the land. * * * The difference between the value of the land without the improvements and the value of the land with the improvements in their then condition would be a just sum to allow therefor. ’ ’
The Betterment Act applies to tenants in common. Greer v. Fontaine, 71 Ark. 605, 77 S. W. 56; Baxter v. Young, 229 Ark. 1035, 320 S. W. 2d 640. Practically all of appellants' testimony deals with the costs of the improvements, though two witnesses testified to the present value of the barns. The cost of an improvement is only an element to consider in the overall picture. As stated in Greer v. Fontaine, supra:
“The measure of the value of betterments is not their actual cost, but the enhanced value they impart to the land, without reference to the fact that they were desired by the true owner, or could not be profitably used by him.”
No proof of the enhanced value of the land appears in the record, and accordingly, no relief can be granted.
The court did not permit proof to be offered concerning the rental value of the property, and based its findings, referred to in appellants’ points three and four, on the testimony offered at the first trial. We have already stated that appellants were entitled to introduce further evidence, and since they were not permitted to introduce testimony relative to rental value, the decree of December 6,1960, must be reversed. Under this holding, it becomes unnecessary to discuss point three. We are likewise unable to determine the basis of the finding that Wallis had collected $1,500 in rent while the property was in his possession, but this may also be further developed on remand.
Accordingly, the decree is reversed, and the cause remanded to the Hot Spring Chancery Court with directions to permit the taking of proof by all parties relative to the rental value of the property in question while in possession of Clovis Wallis, and likewise, the amount of rent collected by Wallis from the property.
It is so ordered,.
Of course, the court’s findings were predicated upon an erroneous premise, since the figure arrived at for improvements was based entirely upon costs of the improvements. However, the complaint of appellants is not that the decree was erroneous because of that fact, but their complaint is rather that the court used the cost figures in the first trial rather than the cost figures in the second trial. | [
113,
110,
-100,
46,
-118,
96,
10,
-102,
97,
-95,
-74,
87,
-65,
-38,
20,
99,
-30,
125,
69,
107,
-58,
-77,
98,
-16,
-46,
-5,
83,
77,
-15,
109,
-12,
87,
76,
52,
-54,
-107,
98,
-118,
-19,
84,
14,
-123,
-101,
71,
-55,
96,
52,
31,
22,
15,
49,
-106,
-13,
40,
17,
-61,
72,
44,
75,
45,
17,
-7,
-86,
-116,
-1,
6,
48,
118,
-98,
5,
88,
40,
-112,
53,
0,
-88,
115,
-106,
-110,
116,
11,
-101,
8,
34,
98,
0,
109,
-21,
-16,
-56,
47,
-46,
-115,
-89,
-45,
17,
75,
97,
-66,
-35,
124,
20,
39,
122,
-20,
21,
92,
44,
7,
-113,
-106,
-95,
31,
60,
-116,
82,
-25,
7,
24,
117,
-51,
-22,
92,
-59,
49,
-101,
-116,
-103
] |
McCulloch, C. J.
This is an action instituted on behalf of a person of unsound mind to redeem lands from tax sale under a statute of this State which provides that “all lands, city or town lots belonging to insane persons, minors or persons in confinement, and which have been, or may hereafter be, sold for taxes, may be redeemed within two years from and after the expiration of such disability.” Kirby’s Digest, § 7095.
Redemption from tax sales is allowed generally for a period of two years after sale, and the above quoted statute is an exception in favor of persons under disability.
The lands in controversy were sold for taxes in the year 1881, and this action was instituted on April 24, 1913, by a person of unsound mind, William E. McGuire, suing by his next friend.
The language of the statute is clear and explicit, and the question involved is whether or not appellee, who is conceded to be a person of unsound mind, was the owner of the land, within the meaning of the statute, at the time it -was sold for taxes.
Appellee derives his rights by devise from one Elizabeth Crow, who died in the year 1880, leaving a last will and testament whereby she devised to appellee a beneficial interest in the lands in controversy for and during his life. There are several clauses of the will of Elizabeth Crow with reference to devises of property to appellee, who was her nephew. The language of each is as follows:
“I devise and bequeath to my nephew, William Ed McGuire, for the period of his natural life, all the lands owned by me (describing them), to hold the same for the period of his natural life, and at his death to descend to the heirs of his body lawfully begotten.”
The instrument concludes with the following clause:
“It is further my will that all the property herein-above decreed to my nephew, William Ed McGuire, shall be held, managed and controlled during the life of the said William Ed by the trustee hereinafter named, it not being my intention that he, the said William Ed, shall have the power to alien or to encumber the estate in the property I have bequeathed to him, and for this purpose I hereby appoint Robert Neill, of Batesville, trustee, to have and to hold the legal title to the property hereinabove bequeathed to said William Ed McGuire, with full power to control, rent, lease, and, if necessary, to sell and convey, the life estate of said William Ed McGuire iu the property bequeathed to him, and to apply the proceeds to the support and maintenance of said William Ed McGuire so long as he shall live.”
It is our duty to construe the whole will together for the purpose of ascertaining the true intent of the testatrix ; and, when this is done, it is clear that the instrument conveys the legal title to the trustee for the benefit of appellee as beneficiary during his natural life, and it does not devise the legal title to appellee. When thus construed, the different clauses of the will are not in conflict with each other.
If any conflict exists, it would be our duty to construe the last provision as controlling, but where all the provisions can be construed together, without doing violence to the language of either, it is the duty of the court to do so.
The rule is that, where different parts of a will are totally irreconcilable, the last overthrows the former; but that rule is never resorted to except for the purpose of escaping total inconsistency. Cox v. Britt, 22 Ark. 567; McKenzie v. Roleson, 28 Ark. 102.
The case of Parker v. Wilson, 98 Ark. 553, is decisive of the present case on the point now under discussion. That ease involved 'the 'construction of the will of a testatrix, whereby property was, in terms, conveyed to the son of the testatrix, but the clause was followed by another appointing her husband as guardian with authority to take entire charge of the property and manage the same and to bargain, sell and convey the property. We held that that conveyed the legal title to the husband in trust, and that the property did not fall to the guardian of the son, and in the opinion it was said:
“In the application of the rules of construction above announced, we are of the opinion that, under the terms of the will, the testatrix intended something more than to make her husband guardian of her minor children ; or to give him power to manage her property, but that she intended to place her property in trust for her children during their minority. She does not stop with directing him to manage the property, but goes further and uses the word ‘hold,’ which has a technical meaning as expressing tenure. He is given power to bargain, sell and convey. Hence, instead of merely intending to appoint her husband guardian of her children and to give him power to manage the property for them, we are of the opinion that, by direct and express terms, she made him trustee of her property during their minority, with power to sell same, and that the legal title thereto during the trust term was in him as trustee.”
It follows, therefore, that the legal title to the property in controversy was in the trustee, and that, he, and not the cestui que trust, was the owner thereof.
Pursuing the inquiry, it further follows that appellee’s rights in the property as cestui que trust did not bring him within the terms of the statute giving the right to redeem.
In Chase v. Cartright, 53 Ark. 358, it was held that the statute of limitations ran against a cause of action for the recovery of lands held by trustees and that cestuis que trust under disability of minority did not come within the exceptions which permitted infants to prosecute actions after removal of disabilities. The court said:
“Seven years’ adverse possesion was sufficient to bar the right of the trustees, they being under no disability; but whenever the right of action in the trustees is barred by limitation, the right of cestuis que trust thus represented is also barred.”
The cases cited on the brief of appellant abundantly sustain that proposition.
Reasoning by analogy, it is clear that appellee is not entitled to invoke the exemption prescribed by the statute in favor of persons under disability, for he was not the owner of the property* within the meaning of the statute and was represented by the trustee, who held the legal title.
Redemption laws are liberally construed, and this court has adhered to that policy. Appellee had such an interest in the property that gave him the right to redeem during the period allowed by the general statute, but as that time has expired, before redemption can be permitted the person under disability seeking to redeem must be shown to have been the owner of the land at the time of the sale.
Our conclusion is that appellee had no right of redemption, and that the chancellor erred in rendering a decree in his favor. The decree is, therefore, reversed, and the cause remanded, with directions to dismiss the complaint for want of equity. | [
-14,
-42,
-100,
28,
-85,
-48,
74,
-102,
67,
-77,
36,
95,
-85,
-110,
17,
43,
-31,
105,
65,
109,
-30,
-93,
119,
3,
50,
-77,
-49,
-49,
49,
77,
-10,
87,
8,
48,
-54,
53,
-26,
98,
-19,
92,
14,
-121,
10,
105,
-15,
64,
52,
107,
64,
74,
81,
-98,
-73,
58,
53,
74,
96,
40,
-55,
-70,
81,
-88,
-65,
-124,
-5,
7,
1,
70,
-72,
-125,
-22,
-118,
-102,
53,
0,
-24,
121,
22,
-122,
-42,
-51,
-119,
44,
102,
-94,
17,
77,
-1,
-15,
-72,
-82,
-105,
-91,
-123,
-61,
89,
18,
64,
-65,
-35,
92,
-48,
44,
-12,
110,
-124,
20,
104,
13,
-65,
-42,
-93,
-49,
124,
20,
3,
-37,
45,
50,
113,
-51,
102,
92,
103,
126,
-101,
-115,
-36
] |
Hart, J.,
(after stating the facts). It is first contended by counsel for defendant that the latter had no notice that it was contemplated that the funeral would be postponed. The testimony shows that if the message had been delivered on the afternoon on which it was sent the plaintiff and his family could not have left Warren until 2 o ’clock a. m. the next morning, and could not have arrived at Doniphan until between 9 and 10 o’clock on the morning of the 18th inst.; that the funeral was had at 4 o’clock on the evening of the 17th inst. Therefore, they contend that the plaintiff and his family could not have attended the funeral, had plaintiff received the message on the afternoon on which it was sent, and that the language of the telegram did not convey any notice that the funeral would be postponed.
In the case of Harrison v. Western Union Telegraph Co., 143 N. C. 147, 10 Am. & Eng. Ann. Cas. 476, in regard to a similar contention, the court said:
“We think the learned counsel for the defendant takes a view much too restricted when he contends that the only purpose of the telegram was to notify the mother of the hour of the interment, and that nothing else was reasonably within the contemplation of the parties. The evident purpose was to notify the stricken mother at once that her son was dead, to the end that she might come without delay and have the melancholy pleasure, and perform the sacred duty, of being with his remains as long as possible before they were committed forever to the grave.
“The fact that the hour fixed for the funeral is stated in the telegram is >a mere incident to the general purpose for which the telegram was evidently sent. ’ ’
So it may be said here the language of the telegram notified the defendant of the near relationship between the plaintiff, the sender of. the telegram, and the person named in it. The message itself suggested that its object was to notify the plaintiff of the death of a near relative, and also carried with it the suggestion that if there was not sufficient time for the plaintiff to arrive at the hour named in the message the funeral would be postponed until he could arrive.
It is next insisted by counsel for defendant that there was no competent testimony tending to show that the funeral would have been postponed had the message been received from the plaintiff to the effect that he desired to attend it. • We do not agree with them in this contention. The son and son-in-law of the deceased testified that they assisted Mrs. Upshaw in making the funeral arrangements for her deceased husband, and that it was understood and agreed between themselves that 'the funeral would be postponed if word was received from the plaintiff and his family that they desired to attend; that the object in sending the message to the plaintiff was to notify him and his family of the death of Mr. Upshaw in order that they might attend the funeral. The son and son-in-law having testified that they assisted in making the funeral arrangements, their testimony in regard to the postponement of the funeral was not hearsay, and was therefore competent to show that the funeral would have been postponed had the plaintiff notified them to do so.
It is next insisted by counsel for defendant that it is not liable, because the plaintiff did not live within the free-delivery limits of the telegraph company at Warren, and that no fee was paid to send a special messenger to deliver it. The testimony shows that the plaintiff was a night watchman for the Arkansas Lumber Company and lived just outside of the delivery limits of the telegraph company at Warren; that the lumber company had an office within the free delivery limits at Warren, and that it was the custom of the timekeepers to deliver . telegrams to employees which were sent to its office within the free delivery limits; that the plaintiff was well known to the officers of the lumber company there, and that the lumber company would have delivered tbe message to Mm, had it been delivered to its office within the corporate limits of Warren. The question of whether the defendant company, by the exercise of ordinary diligence, could have delivered the message to the plaintiff within its delivery limits, under the facts and circumstances adduced above, was one of fact for the jury, and was properly submitted to it for its determination. Arkansas & Louisiana Ry. Co. v. Stroude, 82 Ark. 117. See also Western Union Telegraph Company v. Webb, 94 Ark. 350. It will be remembered that, although the telegraph operator at Warren testified that he inquired at the office of the Arkansas Lumber Company for the plaintiff and was told that he worked for the company but that Ms address and whereabouts were not at the time known, the timekeeper for the lumber company testified that he did know the plaintiff, and that no inqMry was made of him by the telegraph company. It was also shown that if the message had been delivered to the lumber company its employees would have -delivered the message to the plaintiff.
It is next contended that the verdict was excessive; and in this contention we agree with counsel for defendant. It is true that in the case of the Western Union Telegraph Company v. Rhine, 90 Ark. 57, we allowed a recovery of $400 under somewhat similar circumstances. There it was shown that the body became badly decomposed and offensive odors came from it, and we said it could have afforded the mother but little consolation or satisfaction to have viewed her son’s remains in such condition, if indeed it was practical for her to view them ■at all. There is a great-difference, however, between the affection existing between a mother and her son and a son-in-law and his father-in-law. The body of the deceased in the present case was not embalmed, and the undertaker testified that the body could not have been kept longer than twenty-four hours without becoming decomposed. Mr. Upshaw died on the mormng of the 16th inst. and was buried at 4.o’clock in the afternoon on the next day. The testimony shows that, had the telegram been delivered to the plaintiff without delay, he could not arrive at Doniphan until between 9 and 10 o’clock on the morning of the 18th. He would then have had to travel thirteen miles to the, residence where the deceased’s body lay, and by the time he arrived there the body would haveheen necessarily discolored and badly decomposed. Therefore, instead of seeing the features of Mr. Upshaw as they appeared in life, he would only have seen his discolored and decomposed body and have been permitted to follow it to the grave. The plaintiff had not seen his father-in-law for seven years, and did not during that time visit him, although a correspondence was kept up between his family and-that of his father-in-law. The plaintiff himself, however, had not written to his father-in-law during these seven years. The son and another son-in-law lived near Reuben Upshaw and made all arrangements for the funeral. There was no duty devolving upon plaintiff in that regard, and all he could have done would be to follow the body to the grave. We think under the circumstances related above that the verdict of $250 was too much. We think that $50 would have been a sufficient amount to compensate plaintiff for all mental pain suffered by him. The judgment, therefore, will be reversed, and judgment will be entered here for plaintiff in the sum of fifty dollars. | [
-80,
-20,
-68,
47,
42,
96,
42,
-70,
-48,
-95,
32,
83,
-55,
-45,
17,
59,
-69,
35,
112,
-21,
84,
-73,
79,
40,
-14,
-45,
114,
-108,
-9,
-19,
-82,
-3,
77,
32,
74,
-43,
102,
74,
-51,
-42,
14,
20,
9,
-31,
25,
19,
48,
123,
94,
79,
85,
-33,
-29,
42,
24,
110,
104,
40,
121,
57,
-62,
112,
-81,
5,
127,
4,
-94,
100,
-104,
-81,
-56,
28,
24,
49,
0,
-24,
112,
-89,
-110,
108,
47,
-87,
-120,
98,
-29,
96,
109,
-29,
-84,
-116,
14,
54,
29,
-89,
28,
105,
41,
-83,
-106,
-99,
58,
16,
38,
120,
50,
21,
23,
-96,
8,
-50,
-10,
-73,
-49,
46,
-98,
-97,
-21,
17,
32,
113,
-51,
-94,
94,
-59,
49,
59,
-122,
-71
] |
Riddick, T.
The appellant was indicted for slander by the grand jury of Perry county. After a change of venue to Pulaski county, he was tried and convicted and sentenced to three years in the State penitentiary. His appeal raises certain questions of law, which we shall state and determine.
The indictment, in substance, charges that appellant slandered one Pearl Jones by falsely uttering and publishing about her words which, in their common acceptation, amounted to charge the said Pearl Jones with having committed fornication and adultery with the sons of appellant.
On the trial of the case, Pearl Jones was introduced as a witness for the State, and testified that she had never had sexual intercourse with either of defendant’s sons, or any one else. .On cross examination, she was asked if she had not had sexual intercourse with Joe Darr, and concerning other circumstances having no connection with the charge in the indictment. To contradict the prosecutrix, and to show that she was a woman of lax morals, the appellant was allowed to introduce proof tending to show that she had committed fornication with Joe Darr, and had been guilty of other criminating acts. The court, in effect, held that testimony concerning these extrinsic facts could only be introduced for the purpose of contradicting and impeaching the witness Pearl Jones, and that the jury could only consider them for the purpose of testing the accuracy of her statements, and to determine the weight that should be given her testimony; that such acts, if proven, did not go in justification of the offense. If there was any error in this ruling of the court, it was in favor of the defendant. Pearl Jones was the prosecuting witness, but she could not be impeached by proof tending to show that she had been guilty of acts of fornication or adultery with men other than' the sons of defendant. Much less could such collateral acts of adultery or fornication be considered as a justification of the crime with which defendant was charged.
Sec. 2902, Mansfield’s Digest, expressly provides that a witness shall not be impeached “by evidence of’ particular wrongful acts, except that it may be shown by the examination of a witness or record of a judgment that he has been convicted of a felony.” This portion of our statute providing that a witness should not be impeached by evidence of particular acts was only declaratory of the law as it existed at the time. In the case of Pleasant v. State, 15 Ark. 624, which was a prosecution for an assault with intent to commit rape, this court, before the passage of the statute quoted above, held that the chastity of the prosecuting witness could not be impeached by evidence of particular acts of unchastity with men other than the defendant, but that it might be impeached by evidence of her general repulation in that respect. The court approved the language of Mr. Greenleaf in the 3 vol. of his work on Evidence, sec. 214, where, speaking of prosecutions for rape, he says: “The character of the prosecutrix for chastity may also be impeached ; but this must be done by general evidence of her reputation in that respect, and not by evidence of particular instances of unchastity. Nor can she be interrogated as to her criminal connection with any other person, except as to her previous intercourse with the prisoner himself; nor is such ■evidence of other instances admissible.” When a person is charged with slandering a female, not by saying ■of her, generally, that she is a lewd woman, but by ■stating that she has committed certain specific acts of adultery or fornication, the same rule will apply. In the case of Patterson v. State, 12 Tex. App. 476, the court held that the defendant in a criminal action for slander should not “be permitted to prove any other acts or conduct imputing a want of chastity, except those ■specifically embraced in the imputation made by him.”
The learned judge of the circuit court properly allowed such collateral acts of fornication to be proved in this case for the reason that the prosecuting attorney, in his examination in chief, asked Pearl Jones if she ever had “sexual intercourse with any man.” The general rule is that when a witness is cross-examined on a matter collateral to the issue, his answer cannot be subsequently contradicted by the party putting the question ; but this limitation only applies to answers on the cross-examination. It does not affect answers to the examina tion in chiéf. Wharton’s Crim. Ev. (8 Ed.) sec. 484; State v. Sargent, 32 Me. 429. When a party, in his examination in chief, is allowed to inquire about collateral acts, the opposing side will usually be allowed to contradict the witness by evidence showing to the contrary. The prosecuting attorney, after having asked Pearl Jones whether she had had sexual intercourse with either of the sons of defendant, elected to proceed further, and to ask her if she ever had sexual intercourse with any man. It was, therefore, proper to allow defendant to contradict her by evidence tending to show that she had been guilty of such acts of illicit intercourse, though such evidence could not go in justification of the crime, but at most only to contradict and impeach the witness. •
The court refused, on motion of the attorney for the defendant, to compel Pearl Jones, the prosecutrix, to submit to an examination of her person. We think that this ruling of the court was correct. The chaste and virtuous woman would naturally shrink from such an examination, as well as those who were guilty and feared detection, and we hold that the refusal of the prosecutrix to submit to the examination of her own accord raised no presumption against her chastity. Even if we ■conceded that such an examination would have helped to determine whether or not Pearl Jones had been guilty of illicit sexual intercourse, it would have thrown no light on the question whether or not she had been guilty of adultery with the sons of defendant, which was the question at issue. Many of the courts hold that in prosecutions of this kind the prosecutrix cannot be compelled to answer the question whether she has been guilty of collateral acts of adultery or fornication, for the reason that the question concerns irrelevant matters, and the answer may tend to disgrace the witness. There is much stronger reason why she should be privileged from an examination which might tend to disgrace her, would throw no direct light on the question at issue, and would shock the modesty of any innocent woman.
In its charge, the court stated to the jury that, if the defendant relied as a defense upon the truth of the words used by him, the burden of proof was upon him “to show, by evidence fairly preponderating, that such words were true.” The defendant was accused of slandering Pearl Jones by falsely uttering and publishing about her certain words which amounted, in their common acceptation, to accuse her of having been guilty of fornication with the sons of defendant. The indictment alleged that these words were false. Sec. 1813, Mansfield’s Digest, under which this indictment was found, is as follows : “If any person shall falsely use, utter or publish words which, in their common acceptation, shall amount to charge any person with having been guilty of fornication or adultery, such words, so spoken, shall be deemed slander, and shall be actionable and indictable as such.’’ The gravamen of the offense under this statute is the falsely using, uttering or publishing the words which constitute the slander. The allegation in the indictment that the words were false is a material one, and necessary not only to be averred but to be proved to make out the crime.
Mr. Wharton, in his work on Criminal Evidence (8 ed. sec. 720), discusses the question as to when the burden is on the defendant to prove his defense, as follows : “When a defense, in itself purely extrinsic and independent, is set up, all the allegations of the indictment being admitted, then, as we have seen, it is necessary that the defense should be sustained by a preponderance of proof. The principal defenses of this class that have come before the courts are: (1) License, or authority from the State; (2) Autrefois acquit or con vict\ and (3) Insanity, when the object is to obtain a verdict of lunacy. On the other hand, when this defense traverses any essential allegation of the indictment, then, when the whole evidence is in, the jury, as we have seen, are to be told that to convict it is necessary that such allegations should be established beyond1 reasonable doubt.” In the case at bar, the defense that the language uttered by defendant was true traversed the essential allegation of the indictment that the words so uttered were false, and under the rule laid down by Mr. Wharton, which is sustained by the authorities, it. must be established beyond a reasonable doubt before defendant can lawfully be convicted.
In this connection the court also instructed the jury as follows: “If the defendant denies using the words charged in the indictment, and relies upon that as a, defense, and the State proves beyond a reasonable doubt, that he did use or utter them as charged, and that they,, in their common acceptation, amounted to charge Pearl Jones with fornication, and she denies the truth of this-charge, in the absence of any other proof, this would be sufficient to justify a conviction, the presumption being in favor of the prosecuting witness.”
One defect in this instruction is that it, in effect,, tells the jury that if - Pearl Jones denies that she was-guilty of fornication, then, in the absence of other proof,, the jury should take the statement as true. The question of what weight to give to the testimony of a witness in a criminal prosecution, and whether they will believe her or not, is always one for the jury to determine.. We think the court erred, also, in telling the jury that-the presumption was in favor of the chastity of the-prosecuting witness. While it is true, generally speaking, that the law presumes in favor of the chastity of females, as it does of the good character, honesty, and innocence of all persons, until there is proof to the con trary, yet these presumptions cannot be used to supply the place of evidence against a defendant in a criminal prosecution. “The presumption of virtue of one citizen cannot work the condemnation of another,” in whose favor, when charged with crime, the law raises the presumption of innocence until he is proven guilty. In the case of West v. State, 1 Wis. 187, the supreme court of Wisconsin held that, in a prosecution for seduction, the law did not presume, in the absence of testimony, the previous chaste character of the female; such presumption being incompatible with the legal presumption in favor of the innocence of the accused. These presumptions, say the court in that case, “are always to be used, in the administration of justice, as a weapon of defense, not of assault.” The supreme court of North Carolina, in a prosecution where the defendant was charged with slandering an innocent woman by speaking words about her which amounted to charge her with incontinency, held that it was error to charge the jury that the law presumed that the woman was innocent, and that the burden was on the defendant to show to the contrary. “Why,” said the court, “should the law presume the prosecutrix in this case to be innocent of a delinquency in morals, if thereby it should raise another presumption that the defendant was guilty of a crime which subjected him to punishment? In a case like this, the law raises but a single presumption—the, same which it raises for every defendant on his trial for a criminal violation of the law of his country, of holding him to be innocent until proved to be guilty ; and to this presumption there is no limit, but it goes to the whole scope of the charge against him, and embraces every averment necessary to constitute the alleged ofEense.” State v. McDaniel, 84 N. C. 803.
It is also urged by counsel for appellant that it was error to give this instruction, for the reason that it instructs the jury concerning a phase of the case that was not before them. The defendant testified in his own behalf, and admitted that he had uttered and published substantially the words alleged in the indictment. It was, therefore, unnecessary to instruct the jury on a view of the case that would have been presented had he denied having used such words. The defendant set up in effect only two defenses: (1) That the words uttered were true ; (2) That he had spoken them in good faith, and under circumstances that made them privileged. The court might therefore have confined its charge to the questions of law arising on the phases of the case presented by these defenses. But while it is well for a trial court to avoid, as far as possible, circumlocution a'nd lengthy charges, still, it is, at times, necessary to refer to questions of law not strictly pertaining to the questions before the jury, in order to distinguish and explain the rules of law by which the jury are to be guided. Such matters are left, to a considerable extent, within the discretion of the trial court, and this court will not reverse because the trial court gives an instruction on a phase of the case not presented by the evidence, unless it is apparent that it may have misled the jury to the prejudice of the appellant. We do not see that any harm could have resulted from the giving of this instruction, had the law been correctly stated.
It is insisted that other rulings of the trial court were erroneous, but we have discovered no substantial error except as indicated above. For those errors the judgment of the circuit court is reversed, and cause remanded for a new trial. | [
-16,
-18,
-19,
-67,
40,
-32,
72,
-66,
-62,
-93,
-11,
-42,
41,
66,
68,
121,
58,
123,
85,
41,
-108,
-74,
53,
99,
-78,
-77,
106,
87,
-73,
79,
-12,
-3,
12,
48,
-54,
-47,
35,
-8,
-11,
92,
-122,
-77,
-119,
-20,
-45,
-48,
52,
115,
17,
79,
-91,
-82,
-25,
42,
20,
67,
8,
46,
111,
-83,
64,
49,
-100,
-99,
122,
4,
-77,
38,
-103,
39,
-8,
62,
-40,
49,
1,
104,
115,
-106,
2,
-12,
111,
-119,
8,
34,
98,
48,
-91,
109,
-84,
-120,
87,
-2,
-99,
-89,
16,
113,
75,
77,
-73,
-43,
36,
-48,
39,
110,
98,
-60,
93,
44,
9,
-113,
-76,
-77,
-51,
-91,
-106,
-77,
-30,
-75,
80,
117,
-51,
50,
85,
6,
57,
-101,
-115,
-26
] |
Paul Ward, Associate Justice.
Appellants, Rex and Yiola Ledford, were convicted and sentenced to one year in the State Penitentiary for the crime of arson. They were charged with wilfully, feloniously and maliciously setting fire to their own home located three miles east of Atkins on Highway No. 64. The Ledfords, who are grandparents, owned their home and also a small cafe building close (60 feet) by. Living with them were three children, including a married daughter. Appellants were convicted on circumstantial evidence. Appellants set forth six points upon which they rely for a reversal but they can all be included, and will be discussed, under the following groupings: One, no substantial evidence to support the jury’s verdict. Two, they were deprived of the right to testify in their own behalf.
One. The fire, which damaged but did not destroy the house, apparently originated a short time before 6:30 p.m. on Saturday, January 14, 1961. The fire was first discovered at the time above mentioned, when it was beginning to grow dark. Testimony in behalf of appellants placed them in Little Rock at 6 p.m. visiting the sister of Mrs. Ledford. This sister testified that it was fifty-two miles from Little Rock to Morrilton and that it took sixty to ninety minutes to make the trip. We note that appellants’ home is some ten miles beyond Morrilton from Little Rock. There was also other testimony by a witness, who lives at Morrilton, to the effect that she saw appellants in that city at a time which made it unlikely appellants could have set the fire to their home.
The state’s theory of the case: The Ledfords made two attempts to burn down their house. The first fire was set by appellants in the dining room and kitchen area before they left for Mississippi on the previous Thursday. Contrary to their plan, this first fire died out after burning through one or more joists in the ceiling. When the Ledfords returned on Saturday afternoon they found that their first attempt to burn the house had failed. They then set a second fire in the bedroom area and left hurriedly for Little Rock, where they spent the night in the home of Mrs. Ledford’s sister. The second fire was discovered and extinguished before it spread beyond the bedroom area.
In our opinion there is substantial evidence to support the above theory and consequently the jury’s finding of guilt.
The fire in the bedroom area was discovered by two passers-by between six thirty and seven o ’clock on Saturday evening. The fire department at Atkins, three miles away, was called and arrived in time to confine the damage to the one bedroom where the fire originated. There can be no doubt that both fires were of deliberate origin. Mr. Ledford admitted this, and circumstances are also convincing. There is no indication that the house was broken into; so the jury doubtless concluded that the fires were set by some one who had a key to the house. As far as the record shows, no one except the Ledfords meets this requirement.
The house was examined on Saturday night, after the fire, by the Atkins fire chief, his assistant, and a state policeman with special training in such matters. They found that separate fires had been set in the dining room and the kitchen, and that the sheetrock had been removed to hasten combustion in each area. The first fire (in the kitchen) had burned a large hole in the ceiling, from which sheetrock was hanging down, and had burned through the ceiling joists. The state police officer explained that the first fire would have continued to burn except for the lack of oxygen in the closed house. When the fire in the dining room was discovered and extinguished the ashes from the fire in the kitchen were already white and completely cold. This fact, together with the fact that the house was locked when appellants left it on Thursday, strongly indicates the first fire was set before they left. In the attic the officers found a strip of wallpaper that had been laid so that it extended from a point above the kitchen to a point above the bedroom where the later fire took place. This strip of paper was burned at the kitchen end, but the fire had gone out before reaching the far end of the strip, indicating that whoever set the first fire had expected it to travel along the Avallpaper to the bedroom area.
The circumstances were so suspicious that the Led-fords were questioned more than once. It developed that they had left by car for Mississippi on Thursday afternoon. The trip was not planned in advance and was not made for any pressing reason. The only excuse ever given for the journey was that Mrs. Ledford’s daughter wanted to visit her husband, but the party stayed only two or three hours before driving on to Louisiana. The travellers got back to Atkins at some time on Saturday afternoon, between one and four o’clock. When first questioned Ledford denied that he visited the house that afternoon, but eventually it was admitted that both he and Mrs. Ledford had gone to the house and spent from thirty minutes to two hours there. It cannot be doubted that during that visit the damage caused by the first fire was too obvious to be overlooked. There was a gaping hole in the ceiling; sheetrock was hanging down; ashes were on the floor. But Ledford told the officers that he and his wife stayed in the house for some time and “noticed nothing unusual.” These facts and circumstances lead most convincingly to but one conclusion: that the Ledfords ignited the second fire during that visit to the house.
Upon leaving the premises on Saturday afternoon the Ledfords arranged for their children to spend the night with Mrs. Ledford’s aunt. The plan was devised so hurriedly that the children were not supplied with sleeping garments. Mr. and Mrs. Ledford then drove to Little Bock and spent the night with Mrs. Ledford’s sister. There is no explanation for this trip; indeed, the sister testified that she did not know that the Ledfords were coming. Whether the Ledfords were in Little Bock at six o’clock is a disputed question of fact, upon which they are supported only by the testimony of Mrs. Led-ford’s sister. Another of the defense witnesses said that the Ledfords were in Morrilton between five and six o ’clock.
There were other circumstances to support the view that the Ledfords had planned the fires. The closets appeared to have been stripped of clothing. There were many coat hangers in each closet, but only two or three garments. When Ledford was first questioned about this he insisted that he owned only one suit and an extra pair of pants, but it was later found that many boxes and suitcases containing clothing had been placed in a storeroom behind the house. Ledford originally denied ownership of this clothing, but eventually he admitted that part of it belonged to his family. The family television set had also been removed from the house. There was also evidence indicating the house and its contents were greatly overinsured.
Appellants offered no testimony to explain away many of the above incriminating facts and circumstances which, we think, constitute substantial evidence to support the jury’s verdict. The jury, of course, must be convinced of guilt beyond a reasonable doubt, and its verdict cannot stand if it rests solely upon speculation and conjecture. However, as stated in Dowell v. State, 191 Ark. 311, 86 S. W. 2d 23, “. . . circumstantial testimony is legal and proper, and, when properly connected, furnishes a substantial basis and support for a jury’s verdict.” Moreover, as was said in Morgan v. State, 189 Ark. 981, 76 S. W. 2d 79, “In testing the sufficiency of the evidence to support the verdict, we must view the evidence for the State in the light most favorable to it. . . .”
Two. Appellants do not argue the point, but they ask for a reversal because they say they were denied the right to testify in their own behalf. This point was raised in a Motion for a New Trial, supported by appellants’ affidavits. The trial court denied the motion, and we think he was justified in doing so. The substance of appellants’ affidavits is that they asked their attorney to let them testify but he would not let them, with the attorney giving as his reason that they would ‘ ‘ just mess up the trial and cause more damage,” Appellants admit that the matter was not called to the attention of the Court.
We feel that it would be mere speculation for us to judge the wisdom of the trial attorney in taking the position he did. Appellants are mature people and they were free and qualified to select an attorney of their choice. A similar situation was presented to us in the case of Jones v. State, 224 Ark. 134, 273 S. W. 2d 534, where it said:
“We can see no possible error based on the fact that appellant was not placed on the witness stand by his counsel. It is not contended that any request was made to the court by either appellant or his attorney for appel lant to testify ... we cannot say that it was not for his best interest to refuse to take the stand and refuse' to submit himself to cross-examination.”
The court in this same case went further and saidt
“Here, it must be rememberd, appellant is a mature man and should bear some responsibility for selecting an attorney of his own choice.”
It is our conclusion therefore, based on what we have heretofore said, that the judgment of the trial court should be, and it is hereby, affirmed.
Affirmed. | [
84,
-20,
-4,
-66,
8,
-27,
90,
-102,
-62,
-85,
-32,
-14,
-19,
-49,
73,
13,
38,
-19,
-43,
121,
-111,
-89,
23,
107,
-46,
-37,
25,
-59,
-67,
73,
124,
-33,
88,
112,
-34,
85,
-90,
76,
-59,
92,
-50,
-119,
98,
-14,
-48,
18,
53,
119,
22,
15,
53,
-98,
-13,
42,
21,
90,
77,
42,
75,
63,
80,
57,
-120,
79,
95,
16,
-95,
69,
-102,
5,
-16,
62,
-48,
53,
0,
-40,
115,
-74,
-126,
124,
95,
-119,
12,
36,
-30,
8,
37,
-29,
-88,
8,
34,
54,
-79,
-90,
-104,
9,
3,
108,
-65,
-111,
60,
116,
63,
120,
103,
-59,
121,
108,
-124,
-53,
28,
-127,
-115,
40,
16,
19,
-29,
1,
118,
113,
-55,
-30,
84,
71,
49,
-69,
-50,
-1
] |
Carleton Harris, Chief Justice.
Appellant, Harold Fisher, d/b/a Fisher Moving and Storage Company, is engaged in the household moving and storage business in Blytheville. He was originally given authority to operate in Mississippi County only. Later, in 1957, his authority was extended. In 1958, a further extension in his operating authority was applied for, but denied. Thereafter, in May, 1960, the application from which stems this litigation was filed, wherein appellant sought authority from the Arkansas Commerce Commission, to operate “between points and places.in that part of Arkansas east of U. S. Highway 63 to and from any point in the state of Arkansas.” Protests to the granting of the application were made by Jonesboro Transfer and Storage Company of Jonesboro, and Paragonld Transfer and Storage Company of Paragould, and the owners of these two companies appeared at the hearing. Though not filing a formal protest, Mrs. Florence Allison of Allison Transfer Company testified in opposition to the granting of the permit. At the conclusion of the hearing, the Commission rendered its findings as follows :
“1. Applicant is fit, willing and able properly to perform the proposed service and to conform to the requirements of the motor carrier act and to the rules and regulations of the Commission.
2. The present and future public convenience and necessity require the proposed service.
3. That the granting of the application will not materially affect the operation of other carriers.
4. That the application should be granted.”
In accordance therewith, an order was entered authorizing Fisher to operate “between points and places in that part of Arkansas east of U. S. Highway 63 on the one hand, and on the other, points and places in the State of Arkansas.” The Commission’s order was appealed to the Circuit Court of Pulaski County. On hearing, that court held the order of the Commission to be contrary to a preponderance of the evidence, insufficient to sustain the findings and order of the Commission, and entered its order directing the Commission to set aside the order made, and to enter an order denying the application in its entirety. From such judgment, comes this appeal.
Fisher testified that he has sufficient equipment, in good condition, warehouse facilities, and that he owns one building and leases another. The witness stated that he had loading and parking facilities, and that since the time of his last application, Blytheville’s population had increased. He said that his warehouses were practically full of stored household goods; that his business was good, but that he was forced to reject calls each week because of his limited authority; that these calls were referred to carriers who were authorized to operate in the territory from which the requests came. Fisher testified that he had received numerous calls from ‘ ‘ that area I have asked for here. I have had calls from all of that part of the country.” He stated that, if necessary, he would increase his equipment to handle the additional business that would be afforded if his application were granted. Fisher testified there were five licensed carriers in Blytheville, but that all did not have offices or terminals. He stated that Allison had a telephone and an agent in Blytheville; that he did not refer any calls to Allison, but did refer some to Wunderlick and Beckham, other operators of that city. The witness testified that Allison did not have “good” equipment. He stated that all carriers in Mississippi County were operating under restricted authority except Allison. On cross-examination, Fisher said that he was unable to state the names of any particular persons who called him desiring household goods to be moved to points beyond his authority.
W. W. Beckham, also engaged in the moving and storage business, testified that he had received calls from beyond his territory which he was unable to handle, and that he was of the opinion that the need existed for the extension of authority to another carrier in that area. He stated that because of his health, he was not interested in expanding his business. Beckham, father-in-law of Fisher, likewise was unable to give specific information as to where the calls came from. Lonnie Boyston, engaged in the fire and casualty insurance business in Blytheville, and who handled Fisher’s insurance business, testified that the population in Blytheville had con sistently increased, and was higher by some 3,500 than in 1956. He stated that he knew people were moving in and out of Blytheville, particularly from the air base. Boyston admitted that the other licensed carriers could be used, but that due to “heavy business’ - in that line, those desiring such service “may have to wait awhile.” The witness was not familiar with Allison’s operation, nor did he have personal knowledge that'prompt service could not be given. He stated that he needed' moving service during the year,-which was handled by Mr: Beck-ham ; that he also had- need of service in December, 1959, but did not remember which hauler he used; that service each time was satisfactory. Neither appellant, nor his witnesses, testified that proper service could not be obtained under facilities afforded by presently authorized carriers.
Miss Gladys Montague, owner and manager of Jonesboro Transfer and Storage Company, testified that she was authorized to service all points and places in Arkansas, including the territory covered by Fisher’s application. Through stipulation, it was established that this concern carried advertising in the telephone directories of twenty-two cities and towns. Miss Montague stated that she employed three van drivers, one man who attended to office work, one salesman, one repairman and mechanic. She testified relative to the amount of equipment owned by the company and stated that two vans and a stake truck were on the lot in Jonesboro (at the time of the hearing) because of lack of business. She stated her concern would be willing to handle calls referred by Fisher, Beckham, or anyone else, and that she had not received any calls from Fisher or Beckham; that she had never refused any service; that she was able to increase her equipment if business required it, and would do so. Exhibits showing shipments in the territory, in which appellant seeks a permit, were offered for 1959 and January through June, 1960.
Vivian Clark testified on behalf of Paragould Transfer and Storage Company, protesting the granting of the application. She stated there was not enough business, and it would be detrimental to her company if Fisher were granted the permit. Mrs. Florence Allison of Allison Transfer Company testified that this concern has terminals or offices in Little Rock and Blytheville, having been located in the latter city since October, 1959; that the company maintains a tractor trailer unit and a bob truck most of the time in Blytheville and advertises for business. She said that Allison keeps six units in Little Rock, and if an order is received from Blytheville requiring more than one piece of equipment, additional units are sent from the capital city. According to the witness, the company maintains a large warehouse in Blytheville, and is willing to add additional equipment for use there if it becomes necessary.
We agree with the Circuit Court that the evidence on behalf of Fisher was insufficient to sustain the granting of the application.
Both appellant and appellee cite the case of Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907, wherein we said that a certificate should be granted “* * * if public convenience and necessity be shown, even if there be already existing service, provided the Commission finds either:
a. that the present service is inadequate; or
b. that additional service would benefit the general public; or
c. that the existing carrier has been given an opportunity to furnish additional service as may be required.” In the same case, we stated that the desire of a new applicant for a certificate is relatively a minor matter for the consideration of the Commission. Appellant more or less concedes that he cannot obtain a permit under provisions “a” and “c” mentioned above; at least, no argument is directed to a contention that present service is inadequate; nor is there any proof that the service is inadequate, i. e., persons requiring moving accommodations have been inconvenienced and delayed in obtaining: same because of insufficient moving; facili ties. Likewise, there is no evidence that existing carriers have been given the opportunity to furnish any additional service, even if same were required. Appellant stakes his case on the principal enunciated in “b”, that additional service would benefit the general public. But this assertion, in our view from the record before us, must be predicated largely on surmise, or a general supposition that “the more carriers added, the more benefit to the general public.” Certainly, there is no evidence that establishes additional benefits to the public if Fisher’s permit is granted. The territory sought by appellant includes Mammoth Spring, Hardy, Imboden, Black Bock, Walnut Bidge, Jonesboro, Marked Tree, Tyronza, Turrell, West Memphis, Blytheville, Lepanto, Monett, Paragould, Corning, Piggott, Sector, Leach-ville, Lake City, Luxora, Osceola, Pocahontas, Wilson, Hoxie, Trumann, and perhaps others. Despite the size of the territory, appellant brought forward only one witness on behalf of the general public, his insurance agent, and this witness, who had no present need for moving facilities, had received satisfactory service on the two occasions when he required it. Appellant argues that the size of Blytheville justifies a local mover with statewide authority. Of course, this is not the criterion for granting additional service; in addition, it appears that such a concern, possessing the authority sought by appellant, is already doing business in Blytheville. It is true that Mrs. Allison lives at Little Bock, but a branch, or terminal, office is maintained in Blytheville. This witness testified that the terminal office has a telephone, and that eight employees are presently employed on a permanent basis. She further stated that a tractor trailer unit and bob truck are kept in Blytheville, and that the six units in Little Bock are used interchangeably between the two cities.
We are of the opinion, and find, that the evidence falls short of establishing that the proposed additional service, to be furnished by Fisher, would benefit the general public. In accordance with this finding, the judgment of the Circuit Court is affirmed.
Appellant was authorized to operate between points and places in Mississippi County, that part of Craighead County on and east of Arkansas Highway 135, that part of Poinsett County east of U. S. Highway 63 and that part of Crittendon County north of Arkansas Highway 42 and U. S. Highway 61; and between points and places in the said territory on the one hand and on the other, points and places in Arkansas bounded on the west by U. S. Highway 67 and on the south by U. S. Highway 79, Arkansas Highway 11 and U. S. Highway 70, and to serve Helena, Arkansas, as an off-route point.
“On the one hand, and on the other” means every shipment mnstorig'inate or be destined to the described territory.
Appellant’s facilities and ability to handle increased business are not questioned. | [
112,
-18,
-24,
92,
26,
67,
56,
-72,
82,
-93,
101,
83,
-81,
-34,
20,
123,
-29,
93,
-12,
120,
-25,
-73,
69,
123,
82,
-45,
-61,
-25,
-6,
-35,
100,
-58,
76,
32,
-54,
-35,
-58,
64,
-59,
-100,
94,
32,
-71,
101,
89,
0,
32,
40,
80,
79,
85,
14,
-10,
44,
26,
-53,
9,
44,
-55,
44,
80,
-16,
122,
-113,
111,
7,
33,
36,
-102,
5,
120,
44,
-112,
49,
-104,
-87,
119,
-94,
-106,
116,
43,
-35,
44,
32,
99,
3,
5,
-17,
-72,
8,
6,
-38,
29,
-122,
-78,
9,
67,
1,
-65,
-107,
88,
18,
94,
-2,
-13,
5,
95,
108,
-121,
-18,
-46,
-95,
5,
-71,
-114,
25,
-21,
-57,
-80,
113,
-18,
-30,
93,
71,
51,
27,
-58,
-16
] |
Carleton Harris, Chief Justice.
On August 25, 1958, Interstate Fire Insurance Company, appellant herein, executed to Henry Ford, Sr., appellee, its policy insuring the contents of Ford’s premises to the extent of actual cash value of the property at the time of any loss, or the amount which it would cost to repair or replace the property with material of like kind and quality, now, however, to exceed $1500. The schedule recited that the property insured was located in “West End — next to Blackman’s Cafe, Warren, Arkansas.” “Contents Insurance” was defined as “household and personal property usual to a dwelling (except motor vehicles, boats and aircraft), including household and personal property purchased under an installment plan and usual to a dwelling, belonging to the Insured or a member of the family of the Insured, while contained in the dwelling.” On November 21, 1959, Ford’s dwelling house and all contents were totally destroyed by a fire. At the same time, equipment in a pressing shop, also owned by Ford, was likewise destroyed. Appellee contends that his living quarters, cafe, and pressing shop were all located in the same building, and that his policy covered the contents of each, while appellant asserts the pressing shop and restaurant were located in a separate building, and the company is not liable for any loss occurring there. Three days after the fire, appellant’s adjustor met with Ford, and after some conversation, the latter was given a draft for $499.42. This draft was held for approximately eleven months, at which time it was returned to the company by appellee, with the statement that $1500 was due to be paid for the loss. A few days later, Ford instituted suit against the company for $1500, together with 12% penalty, and attorney’s fees. On trial, the jury, in a 9 - 3 verdict, found for appellee in the full amount sought, and the court entered its judgment accordingly, together with 12% penalty and attorney’s fee in the amount of $350. From such judgment, comes this appeal. Several points are urged for reversal, but under the view we take, a discussion of each contention is not necessary.
Appellant contends that appellee, by his action in accepting the draft of $499.42 and executing his release therefor, is precluded from recovering any additional sums. The proof shows that V. M. Heller, an adjustor for Interstate, together with Cecil Marks, district manager of the company, went to Warren on November 24, 1959, for the purpose of adjusting the loss. They, to gether with Ford, examined the dwelling- house, and Ford submitted a list of his loss. All of the parties then visited with Moseley Furniture Company, and the butane gas company, and obtained the cost value of the items that had been listed. No examination of the pressing shop or cafe premises was made, because the company contended that it was not liable for any such loss. The cost value was set at $759.35, and was adjusted to the actual cash value at the time of the loss in the amount of $494.50. This adjustment was 65.1% of the 1957 actual cost value. Ford took the draft and delivered it to a lawyer; approximately eleven months later, it was returned to the company. Appellant company contends that Ford’s action in accepting the draft and signing the release constituted accord and satisfaction, but, under the circumstances of this case, we do not agree. Ford stated:
"He took me all around the store, and we discussed where it all burned, and he said, ‘I’ll settle with you if you want it’, and I said, ‘Yes, sir’, and I thought he was going to pay me and he said, ‘I’ll give you $499 on it’, and I say, ‘The policy say $1500.00’, and he say, ‘I’ll give you $499.00’, and he say, ‘I’ll give you new stuff if you want it’, and I say, ‘I don’t want no new stuff’, and he say, ‘I’ll give you $499.00’, and someone told me to see a lawyer, and I’d get more’n that, and I went up to see a lawyer and he kept it eleven months and kept it . . .
Q. You had another lawyer before Mr. Roberts?
A. Yes, sir. I went to see if he couldn’t get me more’n that. I didn’t figure that was enough.”
Appellee asserts that he was "overreached”; that he took the draft and signed the release because he doubted that he would get any amount if he refused. It does definitely appear that Ford was dissatisfied from the outset. We think, under the proof, that it was a question of fact for the jury to determine whether Ford entered into the settlement freely and voluntarily, and with full knowledge of all his rights under the policy. Ford was apparently an ignorant colored man, and was, under the evidence, unable to read, and could only write his name.
The proof is not entirely clear as to whether the dwelling, pressing shop, and cafe were joined, and under the same roof. Ford testified that the cafe, pressing shop and dwelling were “tied together”; that the cafe was in the front, the pressing shop in the rear, and the dwelling to the east, some 15 or 20 feet from the pressing shop, but connected by “a little gate you go into about 10 feet where you go in, and joined by the same ramp * * * it’s a little place, just enough room to go through it, and I had it over the top of the other building.” Cleo Broomfield testified “it was all one building in together” . . . “Just a little passageway between the two buildings.” She testified there was a shed between the living quarters and the pressing shop. Hazel Hampton testified that the buildings were adjoined by a passageway with a roof on the back, but not over the front. Susie May Young testified that the pressing shop and dwelling were joined by a roof. We think the evidence was sufficient to make a jury question except that portion of the building occupied as a cafe definitely was not covered. This is shown by the terms of the policy itself, which describes the insured premises as being located “next to Blackmans cafe.” This language, of course, precludes recovery of property in Blackman’s cafe.
As to the last, appellee would, at any rate, be precluded from recovery for most items located in the restaurant, because the restaurant equipment, the value of which was introduced into evidence, was not “household and personal property usual to a dwelling.” For example, there is testimony of the loss of eighteen stools. This obviously is restaurant equipment. It is not at all clear from the evidence as to the value given the restaurant equipment. From the testimony:
“Henry, you list in this Complaint that you lost some dishes and restaurant equipment.
A. Yes, sir.
Q. What was the value of the dishes and restaurant equipment?
A. The restaurant ... all the stuff in it was about $500.00 value.
Q. All of it?
A. $500 value for the whole thing. I had an ice box and deep freeze.
Q. We’re not talking about that. We’re talking about the dishes in the restaurant.
A. That’s all combined.
Q. Talking about the dishes and things in the restaurant, but no taking in the box . . . how much was that worth?
A. I guess . . . I’ll say $250.00 for the restaurant equipment, dishes, plates and glasses and stove and sink to wash the dishes.”
This testimony was objected to, and should have been excluded, for these items are beyond the coverage afforded by the policy. Certain other items were listed (objected to by appellant) which obviously cannot he characterized as “household and personal property usual to a dwelling”; for instance, a steam presser and boiler used in connection with the pressing shop, which Ford testified cost $350; also, three “puff irons” valued at $75. Other irons and items are mentioned, but the evidence is insufficient to determine whether these were items usual to a dwelling. Upon a new trial, the testimony should be more fully developed. Likewise, evidence was admitted of the loss of 15 suits of clothes and 15 overcoats from the pressing shop. While the testimony is not entirely clear, it would appear that these coats and suits belonged to customers, since they were located in the pressing shop, and the number seems unusually large for an individual to own. As heretofore mentioned, the policy, in defining “contents insurance” provided coverage only for personal property owned by the insured or a member of his family or being purchased on the installment plan. This, too, can be more fully developed. Since this cause is being remanded, it might also be well to mention that appellee’s proof, relative to value of certain items, is rather indefinite. In several instances, he prefaces his evaluation with the word “about”, i.e., “about $4.50 a piece” (referring to the value of chairs); “I’d say” (referring to the value of beds and springs); “I guess”, and other testimony of a similar nature.
The judgment is reversed, and the cause remanded.
Ford owned the building, furnishings, and equipment in the cafe, but had, some time prior to the fire, leased same to one Blackman.
The loss was adjusted as $494.50, but Ford was due a refund of premium in the amount of $4.92, which was included in the draft.
The actual judgment entered was $1,005.58, inasmuch as the company had already paid into the registry of the court the sum of $499.42. Interest was allowed on this amount in the sum of $88.68.
Two ice boxes and two deep freezes are mentioned in appellant’s evidence; apparently one ice box and deep freeze were located in the dwelling. | [
-12,
124,
-40,
-68,
24,
-96,
58,
-6,
66,
64,
-91,
-45,
-81,
-30,
4,
37,
-2,
121,
117,
75,
-107,
-93,
23,
50,
-46,
-69,
-39,
-59,
-71,
-55,
-3,
95,
76,
32,
-54,
-43,
-94,
0,
-63,
92,
78,
-116,
-70,
-31,
-39,
112,
52,
91,
84,
79,
81,
-99,
-45,
60,
19,
-53,
45,
40,
-37,
-87,
80,
-80,
-118,
7,
127,
17,
49,
38,
-102,
39,
104,
8,
-112,
-79,
0,
-7,
115,
-74,
-58,
-20,
101,
-119,
8,
-30,
99,
16,
1,
-49,
-4,
8,
62,
-62,
15,
-83,
-106,
57,
51,
9,
-65,
-99,
124,
24,
23,
120,
-4,
21,
93,
104,
5,
-113,
-108,
-95,
-49,
120,
28,
2,
-17,
-109,
50,
112,
-53,
-66,
92,
71,
125,
-69,
-114,
-57
] |
Ed. F. McFaddin, Associate Justice.
This litigation concerns Article 19, Section 15, of our Arkansas Constitution, which reads:
“All stationery, printing, paper, fuel, for the use of the General Assembly and other departments of Government, shall be furnished and the printing, binding and distributing of the laws, journals, department reports and all other printing and binding, and the repairing and furnishing the halls and rooms used for the meetings of the General Assembly and its committees, shall be performed under contract to be given to the lowest responsible bidder, below such maximum price and under such regulations as shall be prescribed by law. No member or officer of any department of the government shall in any way be interested in such contracts, and all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer.”
At the outset, we identify some of the persons and companies whose names appear herein:
(a) Appellant Parkin Printing & Stationery Company (hereinafter called “Parkin Company”) is an Arkansas corporation engaged in the printing and stationery business. Parkin Company is a family corporation, with 2,226 shares of capital stock outstanding, of which amount Harry W. Parkin (President of the corporation) owns 980 shares, and the remaining shares are owned by Mr. Parkin’s sister, brother-in-law, mother, and wife; and that stock situation has existed since January, 1957.
(b) Harry W. Parkin is, and has been since 1957, a member (and now Chairman) of the State Highway Commission of Arkansas, having been appointed and confirmed for a 10-year term in accordance with Amendment No. 42 to the Arkansas Constitution, which is the organic law creating the State Highway Commission.
(c) Cross-appellees are the Governor, Secretary of State, State Treasurer, and State Auditor.
(d) The appellee Arkansas Printing & Lithographing Company (hereinafter called “Arkansas Printing Company”) is an Arkansas corporation engaged in the printing and stationery business in competition to Parkin Company.
(e) The Arkansas Stationery & Furniture Company is a subsidiary corporation wholly owned by the Arkansas Printing Company and will sometimes be referred to under that name.
(f) Keith J. Arthur is an individual taxpayer and citizen of the State of Arkansas.
In accordance with <§> 14-301 et seq. Ark. Stats., the Secretary of State duly advertised for bids on contracts of printing and supplies for the biennium beginning July 1, 1961 and ending June 30, 1963. Several scores of separate contracts were to be awarded. Parkin Company was the low bidder on fifteen of the contracts, which were awarded to it on July 11, 1961, with all legal requirements observed, i.e., the signing of the contracts and the approval by the designated State Officials. The performance bonds of the Parkin Company on the fifteen contracts were signed by Harry W. Parkin as guarantor.
On November 24, 1961, Arkansas Printing Company and its subsidiary company, and Keith J. Arthur, as a citizen and taxpayer, filed this suit in the Pulaski Chancery Court against Parkin Company and the four State Officials, alleging that all of the fifteen contracts awarded Parkin Company ‘ ‘. . . are void as contracts on behalf of the State of Arkansas because they are in violation of the Constitution of the State of Arkansas. Harry W. Parkin is and was at all times mentioned herein the president and a principal stockholder of the defendant Parkin Printing-& Stationery Co. Said Harry W. Parkin is also a member and the chairman of the Arkansas State Highway Commission. Under Amendment No. 42 to the Constitution of the State of Arkansas, said Highway Commission is ‘vested with all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper to enable the commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the State Highway Department.’ As chairman of said commission, Harry W. Parkin is the highest ranking member and officer of the State Highway Department, a department of the government of the State of Arkansas. Section 15 of Article 19 of the Constitution of the State of Arkansas provides in part ‘No member or officer of any department of the government shall in any way be interested in such contracts . . .’ ”
The four State Officials, appearing by the Attorney General, filed a general denial. The Parkin Company, after admitting some allegations as to the status of officials, denied all other material allegations of the complaint. Upon issues joined, the cause was heard by the Chancery Court on evidence ore tenus and resulted in a decree finding and declaring the said fifteen contracts awarded the Parkin Company to be void as in violation of Article 19, Section 15, of the Constitution. Prom that decree Parkin Company has appealed, urging two points. There is also a cross-appeal: the Arkansas Printing Company alleged that its subsidiary was the next lowest bidder on Contract No. 40 awarded to Parkin Company and prayed that the State Officials be required to award Contract No. 40 to Arkansas Stationery & Furniture Company as the next low bidder. Such relief was refused, and from that portion of the decree the Arkansas Printing Company and its subsidiary have cross-appealed.
As we stated at the outset, this opinion requires a study of Article 19, Section 15, of the Arkansas Constitution, which section consists of two sentences. The first sentence identifies certain items for contract letting. These are stationery, printing, fuel, binding, furnishing and repairing the halls and rooms of the General Assembly, etc. As to the contracts on these items identified in sentence one, there is this clear prohibition in sentence two: “No member or officer of any department of the government shall in any way be interested in such contracts. . . .” Just why the framers of the Constitution selected the items in sentence number one is of no concern. The fact remains that the Constitution named these items definitely and clearly and there is no denial that all of the fifteen contracts awarded to Parkin Company contain items specified in sentence number one. The defense of Parkin Company is that sentence number two does not apply to Harry W. Parkin for the reasons hereinafter to be considered.
The fact that the Parkin Company which received the fifteen contracts is a corporation and a separate entity from Harry W. Parkin, the individual who is a member of the Highway Commission, is a distinction of no consequence, and is not even relied upon by Parkin Company in this case. Our holding in Peoples Savings Bank v. Big Rock Stone Co., 81 Ark. 599, 99 S. W. 836, eliminates any such “separate entity” defense. In the cited ease, Mr. Lenon as Mayor of Little Rock was President of the Board of Public Affairs which let paving contracts and determined performance thereof; and Mr. Lenon was also a stockholder and President of the Peoples Bank. Torbert held a contract from the City of Little Bock for paving, and in obtaining a loan from Peoples Bank, Torbert made an assignment of his claim against the City on the contract. In deciding the case, Judge Biddiek said:
“The only question in this case is whether it is against public policy to permit a bank, of which- the mayor of a city is a stockholder and president, to take an assignment of the claim of a contractor against the city for the price of work which he has performed for the city, and which work must be inspected and accepted for the city by a board of which the mayor is chairman.”
And the question was answered by the Court in this language:
“By this assignment the mayor, as president and stockholder of the bank, became interested in a contract, the work done under which he, as member of the board of public affairs, had to approve and accept for the city. The statute, declares that all such contracts ‘shall be utterly null and void,’ and this is only a restatement of the rule of the common law. Such contracts being illegal, no court can enforce them, for to do so would be for ‘the law to aid in its own undoing.’ Berka v. Woodward, 125 Cal. 119, 45 L. R. A. 420; Melliss v. Shirley Local Board, 16 Q. B. Div. 446; Brown v. Tarkington, 3 Wall (U. S.) 377; Oscanyan v. Winchester Arms Co., 103 U. S. 261; 15 Am. & Eng. Enc. Law (2 Ed.) 971.”
With all the above explanation, we come to the insistence of Parkin Company that Harry W. Parkin is not a member or officer of “any department of the government” as those words were understood and meant in the Constitution. Parkin Company points out that in Article 4, Section 1, the Constitution provides:
“The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another”;
that Article 5, Section 1, describes the legislative ; that Article 6, Section 1, describes the executive; and that Article 7, Section 1, describes the judicial department. The appellant insists that the State Highway Commission is not in any of these three departments of government and so Harry W. Parkin is not a member of “any department of the government.”
We cannot agree with appellant in this very adroit argument which, if accepted, would permit the Legislature to create an agency not in any department and thereby make such agency exempt from Constitutional restraints. This novel and intriguing argument apparently overlooks the fact that our present State Highway Commission was created by Amendment No. 42 to our Constitution, which amendment was proposed by the General Assembly (under Article 19, Section 22 of the Constitution), and adopted by the People.in the General Election in November 1952. Section 1 of the Amendment No. 42 provides:
“There is hereby created a State Highway Commission which shall be vested with all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper to enable the Commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the State Highway Department.”
The quoted languáge says that the State Highway Commission shall have charge of the “State Highway Department.” So, if the Highway Department is not a subdivision of the Executive Department (as it is), then the People have created a fourth department of government. The People who adopted the Constitution in 1874 reserved the right to amend it; and if they wanted to create a fourth, fifth, or sixth department of government, they had and have the right to do so. And all such newly created departments would necessarily come within the purview of Article 19, Section 15, because an Amendment to the Constitution becomes a part of the whole document for the purpose of uniform construction. (Cooley on Constitutional Limitations, 8th Ed. p. 129.) So even if the Highway Department should not be a sub-department of the Executive Department (and that is what it is, just as the Bank Department, the Insurance Department, and other departments or branches are sub-departments of the Executive Department), still the use of the word “Department” in Amendment No. 42 would bring the officers of the Highway Department within the purview of Article Í9, Section 15.
We held in State Highway Comm. v. Nelson, 191 Ark. 629, 87 S. W. 2d 394, that a suit against the State Highway Commission was a suit against the State. That Harry W. Parkin is an officer of the State cannot be gainsaid when his appointment was confirmed by the Senate as provided in Amendment No. 42; he took the Constitutional oath of office (Ark. Const. Art. 19, Sec. 20); and then also took the special oath of office required of State Highway Commissioners (§ 76-215 Ark. Stats.). So we conclude that Harry W. Parkin was a “member or officer of any department of the government’' within the purview of the inhibition contained in Article 19, Section 15 of the Arkansas Constitution.
The appellant insists that by Act of November 28, 1874, the Legislature made a contemporaneous interpretation of Article 19, Section 15 of the Constitution, and that such contemporaneous construction should have great weight with this Court; and also that by other enactments over the years, the Legislature has made interpretations of this Constitutional provision. The appellant also insists that, over the years, the Executive Department has made interpretations of this Section 15 in that members of various Boards have dealt with the State, even in printing matters. The appellant argues that this Court should follow such Legislative and Executive interpretations, but we reject this argument of appellant. It is the duty of the Judicial Department to interpret the Constitution, and we cannot abrogate our duty by adopting interpretations made by either of the other Departments in conflict with plain language. Legislative and/or Executive interpretations are to be given consideration only when the Constitutional provision is ambiguous. (Cooley on Constitutional Limitations, 8th Ed. p. 149.) There is no ambiguity in the plain language which says: “No member or officer of any department of the government shall in any way be interested in such contracts . . .” The Constitution says what it means and means what it says, and we are sworn to follow it. The words of Chief Justice Hart in Hargraves v. Solomon, 178 Ark. 11, 9 S. W. 2d 797, are like a clarion call:
“"We are not concerned with the wisdom or expediency of the provision of the Constitution under consideration. Our duty is to carry out the provisions of the Constitution as indicated by its plain language. ’ ’
The appellant’s second point is that the “. . . policy of Arkansas does not prohibit a member of the State Highway Commission from holding and performing printing contracts let by the Secretary of State in a procedure prescribed by law and including competitive public bidding.” This second point becomes immaterial since all of the contracts must fall because of the Constitutional prohibition, and so the public policy argument becomes of no moment. Such was the view of the Chancery Court. "We do, however, desire to specifically point out that in affirming the decree we are merely concerned with the items specified in Article 19, Section 15 of the Constitution. As regards items not contained in that section, and as concerns relationship of board members selling such other items, we call attention to our case of Fiser v. Clayton, 221 Ark. 528, 254 S. W. 2d 315, in which members of one board were permitted to sell to other agencies. That holding resulted from statutory enactment, as distinguished from the Constitutional prohibition here presented. There is not the slightest indication of any irregularity, overreaching, or fraud in this ease. The bids were publicly opened and read, and the Parkin Company was the low bidder; and the saving to the State on the Parkin bid over the next lowest bidder is estimated to be more than $28,000.00 for the biennium. Everything was honest and above-board; but as aforesaid it is not for us to substitute our views against the plain wording of the Constitution.
Finally, we come to the cross-appeal of the Arkansas Stationery & Furniture Company. It was the next lowest bidder on Contract No. 40 awarded to Parkin Company and claimed that since the Parkin bid was void, the State Officials should have awarded Contract No. 40 to Arkansas Stationery & Furniture Company. The prayer was that the State Officials be required to make such award. The Chancery Court was correct in denying the prayed relief, since a petition for mandamus in the Chancery Court was not the proper remedy. Democrat Printing & Lithographing Co. v. Parker, 192 Ark. 989, 96 S. W. 2d 16; and Consumers Co-op. v. Hill, 233 Ark. 59, 342 S. W. 2d 657. With the Parkin contracts can-celled, there must be a new advertisement and submission of bids, and the Arkansas Stationery & Furniture Company will then have an opportunity to submit a bid.
Affirmed on direct and cross appeal.
This section of the Constitution has been before us in the following cases: Woodruff v. Berry, 40 Ark. 251; Ark. Democrat v. Press Ptg. Co., 57 Ark. 322, 21 S.W. 586; Hodges v. Lawyers Co-op. Co., 111 Ark. 571, 164 S.W. 294; Ellison v. Oliver, 147 Ark. 252, 227 S.W. 586; Hopper v. Fagan, 151 Ark. 428, 236 S.W. 820; Muncrief v. Hall, 222 Ark. 570, 262 S.W. 2d 92. Our research discloses that Art. 19, Sec. 15, of our 1874 Constitution is identical with Art. 3, Sec. 12 of the Pennsylvania Constitution adopted in 1873; and also with Art. 4, Sec. 30 of the Alabama Constitution of 1875. For somewhat similar provisions in other constitutions, see: Art. 4, See. 107 of Mississippi Constitution of 1890; Art. 5, Sec. 29 of Colorado Constitution of 1876; Art. 15, Sec. 8 of Delaware Constitution of 1897; Art. 5, Sec. 30 of Montana Constitution of 1889; and Sec. 247 of Kentucky Constitution of 1891.
The fifteen contracts so awarded to Parkin Company were:
Contract No. 1 — Production of poll tax receipts.
Contract No. 2 — All permanently bound blank books, books of record, miscellaneous binding, loose leaf bookkeeping sheets, machine bookkeeping sheets, and loose leaf binders.
Contract No. 8 — Printing the biennial report of Department of Education.
Contract No. 9 — Printing the biennial report of the State Treasurer.
Contract No. 15 — Embossed, engraved, or printed letterheads and envelopes for all state departments.
Contract No. 20 — Furnishing of school registers.
Contract No. 30 — Printing the annual report of the Insurance Commissioner.
Contract No. 31 —Printing the monthly Arkansas State Plant Board news for the Arkansas State Plant Board.
Contract No. 40 — Blank stationery and office supplies.
Contract No. 42 — Printing the bulletin announcements of the University of Arkansas.
Contract No. 44 — Printing blank books for the annual reports of County Supervisors.
Contract No. 52 — Production of special reports in pamphlet form of the department of Planning and Research of the Arkansas State Highway Commission.
Contract No. 60 — Printing of the monthly Arkansas Highway magazine for the State Highway Department by offset process.
Contract No. 62 — Printing the bulletin announcement of the University of Arkansas Graduate Institute of Technology.
Contract No. 63 — Producing bulletins for the geological division of the Arkansas Geological and Conservation Commission.
Appellant Parkin Company relies on two points in its brief on appeal, being:
“I. The trial court erred in holding that the Arkansas State Highway Commission is included in the term ‘any department of the government’ as employed in Article 19 Section 15 of the Constitution of Arkansas.
“II. The public policy of Arkansas does not prohibit a member of the State Highway Commission from holding and performing printing contracts let by the Secretary of State in a procedure prescribed by law and including competitive public bidding.”
The brief on cross-appeal has this one point:
“I. The trial court erred in failing to require the state officials who are cross-appellees to enter into a contract with the cross-appellant Arkansas Stationery & Furniture Company for the stationery and supplies to be furnished under the proposal for Contract No. 40.”
There is an annotation in 140 A.L.R. 344, entitled “Public officer’s relation to corporation as officer or stockholder as constituting' interest within statute or rule of common law against public officer being interested in contract with public,” which cites and approves the quoted holding of our Court and collects authorities generally.
This section reads: “The legislative power of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives.”
This section reads: “The executive department of this State shall consist of a Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, and Attorney General, all of whom shall keep their offices in person at the seat of government and hold their offices for the term of two years and until their successors are elected and qualified, and the General. Assembly may provide by law for the establishment of the office of Commissioner of State Lands.”
This section reads: “The judicial power of the State shall be vested in one Supreme Court, in circuit courts, in county and probate courts, and in justices of the peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in municipal corporation courts, courts of common pleas, where established, and, when deemed expedient, may establish separate courts of chancery.”
See §67-101 Ark. Stats.
See §66-101 Ark. Stats. | [
52,
109,
-16,
92,
26,
97,
48,
-102,
91,
-127,
101,
83,
-7,
-52,
21,
123,
-29,
93,
-16,
72,
-59,
-77,
119,
107,
-62,
-77,
-39,
-57,
49,
107,
-4,
-9,
76,
32,
-54,
-43,
-58,
66,
-59,
-100,
110,
32,
11,
101,
120,
-63,
48,
41,
112,
-121,
113,
-107,
-13,
60,
27,
-61,
109,
46,
-23,
43,
81,
-69,
-70,
-33,
125,
23,
3,
5,
-104,
7,
-40,
46,
-112,
49,
9,
-24,
114,
-90,
-58,
116,
75,
121,
8,
106,
98,
98,
-127,
-27,
-116,
-84,
39,
-5,
13,
-90,
-110,
41,
43,
9,
-105,
-107,
57,
16,
-125,
-2,
-74,
21,
19,
108,
-125,
-86,
-106,
-95,
47,
106,
28,
3,
-17,
-94,
16,
117,
-51,
-9,
93,
87,
50,
27,
-50,
-76
] |
George Rose Smith, J.
This is an application by the twenty-two appellees, former employees of the American Can Company, for unemployment compensation. The appellees were thrown out of work when the company permanently shut down and discontinued its Fort Smith plant in November, 1958. Under the collective bargaining agreement between the company and its employees all of the appellees received substantial lump sum severance payments in connection with the termination of their employment. The principal question in the case is whether this severance pay constituted a “dismissal payment” that would disqualify the appellees from immediately receiving unemployment compensation from the state. Ark. Stats. 1947, § 81-1106 (f). The highest administrative tribunal, the Board of Review, held that the employees’ receipt of severance pay had no adverse effect upon their right to immediate compensation. The circuit court affirmed the board’s decision.
The labor agreement between the American Can Company and the United Steelworkers of America appears in the record as a printed pamphlet of more than 150 pages. It is binding upon the company and its employees at some fifty plants scattered over more than a dozen states. We mention only the pertinent provisions in this carefully drawn document.
The contract protects the employees against being discharged without cause, but it recognizes the fact that workmen will be laid off from time to time. Seniority governs the order in which men are laid off and recalled to work. The contract contains a Supplemental Unemployment Benefit plan (called SUB) under which these appellees received severance pay.
The SUB plan is directed primarily toward supplementing the unemployment compensation that will be received by idle employees during layoffs. To this end the company agrees to establish a SUB trust fund to be administered by one or more banks as trustees. The company is to build up the fund by making contributions at the rate of five cents an hour for all of its employees ’ working hours. A formula is provided for determining the maximum level at which the fund will be maintained by the company.
The principal purpose of the SUB plan is to provide additional income to employees receiving unemployment compensation during layoffs. In order to- qualify for weekly SUB payments an employee must be eligible for state unemployment compensation; that is, he must register at the local employment office, accept suitable work when offered, etc. If the company protests the employee’s application for unemployment compensation the SUB payments are to be withheld until the protest has been finally determined.
"When an employee is dráwing unemployment compensation from the state during a layoff he is also entitled to weekly payments from the SUB trust fund. The amount of these weekly SUB payments depends upon the employee’s average weekly ages during the preceding year and also upon the amount of unemployment compensation that he is receiving from the particular state where he lives. The SUB plan sets out an exact schedule of weekly payments. We may roughly summarize that schedule by saying that the employee’s state unemployment compensation is first taken into account and is then supplemented by a weekly SUB payment that brings the employee’s total income up to about 55 per cent of his pay at the time he was laid off. The SUB plan recites that its purpose is “to supplement state system unemployment benefits to the levels provided herein, and not to replace or duplicate them.”
The number of weeks for which an employee is entitled to draw SUB payments depends upon the length of his service with the company. Broadly speaking, an employee accumulates one unit of SUB credit for each two weeks of company service, with a maximum allowable credit of 52 units. When an employee is laid off each unit of SUB credit entitles him to one weekly SUB payment, until his credits are exhausted. The limit of 52 credits means that the weekly SUB payments cannot exceed one year.
The employees make no contributions to the SUB trust-fund; it is built up entirely by the company’s contributions. The labor agreement does not contemplate that any employee will acquire a vested interest in the fund in the sense that the employee’s estate will be entitled to any payment from the fund at the employee’s death. There is, however, one provision for lump sum benefits, which is the center of contention in this case. This provision reads as follows:
“If . . . the Company shall decide to close completely and permanently any plant covered by this Agreement, an employee whose job is discontinued, and who does not retire under the Pension Plan in effect between the parties, or transfer to another plant of the Company, will have his credit units converted into a single severance payment determined in accordance with . . . this Agreement. This single severance payment will be paid to such employee in a lump sum at the time of his termination.”
This provision came into play in the case at bar. When the company’s Fort Smith plant was discontinued the various appellees became entitled to receive, and did receive, lump sum severance payments from the company. The testimony of one of the appellees, O. D. Bryson, was offered as a typical case. Bryson had worked for the company for more than ten years, had never drawn weekly SUB payments, and thus was entitled to the maximum 52 units of credit. In accordance with the contract this credit was converted into a lump sum payment of $2,053, which Bryson received. The other appellees are similarly situated.
The first question is whether the lump sum severance payments constituted disqualifying dismissal payments under the statute. The governing act provides that an employee shall be disqualified for unemployment benefits “[f]or any week with respect to which he receives or has received remuneration in the form of:
“(1) Dismissal payments.
“(2) Unemployment benefits under any unemployment compensation law of another state or of the United States.
“(3) Vacation pay.
“ (4) Compensation for retirement provided by an employment contract or agreement. . . .” Ark. Stats., § 81-1106 (f).
The term “dismissal payment” does not have a recognized and established legal meaning. Our legisla ture evidently intended for the term to mean something more than wages paid in lieu of notice, for Act 155 of 1949 provided that an employee would be disqualified for benefits if he received wages in lieu of notice or dismissal payments. The use of both phrases indicates that they are not considered to be synonymous. It has been pointed out that dismissal “connotes an affirmative action on the part of the employer in initiating the separation.” Dubois v. Maine Emp. Sec. Comm., Maine, 114 Atl. 2d 359.
We preceive no difficulty in defining a “dismissal payment,” for both words are too familiar to be misunderstood or to be considered ambiguous. In the field of employment to dismiss is to discharge. These appellees were discharged by the company when the Fort Smith plant was shut down. Their discharge was the sole reason for their receiving lump sum payments under the SUB plan. When the language of the statute is given its plain and ordinary meaning it cannot be doubted that dismissal payments are involved in this case.
Counsel for the appellees suggest several divergent reasons for saying that these lump sum payments were not dismissal pay, but we do not find the arguments to be persuasive. It is said that the SUB plan refers to “severance payments,” which shows that dismissal payments were not intended. The question, however, is what the legislature meant in selecting the term dismissal payments. If these payments fall within that definition, as they do, it is immaterial that the parties preferred the word severance to the word dismissal. We must look to substance rather than to nomenclature.
It is also said in the appellees’ brief that a characteristic of a disqualifying dismissal payment may be that the employee does not have a vested right to the payment. It is true that some statutes refer to dismissal payments “which the employer is not legally required to make.” See Industrial Comm. v. Sirokman, Colo., 306 P. 2d 669; Ackerson v. Western Union Tel. Co., 234 Minn. 271, 48 N. W. 2d 338, 25 A. L. R. 2d 1063. Our statute, however, like those in many other states* does not contain such a restriction. Indeed, in the next breath our legislature referred to “vacation pay” as having a similar disqualifying effect. We know, of course, that collective bargaining contracts often give the employees a vested right to vacation pay; such a provision appears in the contract now before us. If the legislature was willing to disqualify a person on account of his receiving vacation pay as a matter of right there is no basis for supposing that the lawmakers had a different intention with respect to dismissal pay that accrued as a matter of right.
It is also argued that the appellees should be regarded as having received these dismissal payments as beneficiaiies of the SUB trust rather than as former employees of the company. Even so,-the funds in the trust were wholly contributed by the employer, and the appellees had no vested right to a lump sum payment except in connection with their dismissal. We do not perceive that the mere interposition of a bank as trustee has any substantive effect upon the character of the dismissal payment. Pension plans are frequently administered by trustees, but in certain cases our statute disqualifies the recipient of a pension from being eligible for unemployment compensation. Ark. Stats., § 81-1106 (f) (4). Again there is no good reason to. think that the lawmakers had conflicting intentions about two similar matters.
The second and more difficult question in the case is that of determining the number of weeks for which these dismissal payments disqualified the appellees from receiving unemployment compensation from the state. The statute provides that an individual is disqualified “[f]or any week with respect to which he receives or has received remuneration” in the form of dismissal payments. Ark. Stats., § 81-1106 (f). The appellant contends that each appellee should be disqualified for a number of weeks equal to the number of credit units that were converted into severance pay. On this basis Bryson, for example, would be disqualified for 52 weeks. The appellees insist that they should not be disqualified at all, for the reason that the dismissal payments were not made “with respect” to the weeks following their dismissal by the company.
Hardly any of the eases cited in the briefs are really in point. Many state statutes, including ours, define unemployment by saying that an individual shall be deemed unemployed “with respect to any week during which he performs no services and with respect to which no wages are payable to him.” Ark. Stats., § 81-1103 (m). Under such statutes it is usually held that weekly or lump sum SUB payments do not prevent a person from being unemployed, since the payments are referable to his prior employment rather than to the period of his idleness. Industrial Comm. v. Sirokman, Colo., 306 P. 2d 669; Kroger Co. v. Blumenthal, 13 Ill. 2d 222, 148 N. E. 2d 734; Dubois v. Maine Emp. See. Comm., Maine, 114 Atl. 2d 359; Ackerson v. Western Union Tel. Co., 234 Minn. 271, 48 N. W. 2d 338, 25 A. L. R. 2d 1063; Western Union Tel. Co. v. Texas Emp. Comm., Tex. Civ. App., 243 S. W. 2d 217; contra, Bradshaw v. Calif. Emp. Stabilization Comm., 46 Calif. 2d 608, 297 P. 2d 970.
"We have no quarrel with these decisions, but they do not reach the question now before us. The cited cases were concerned with the fact of unemployment rather than with the disqualifying effect of dismissal payments. (In the Ackerson case the court cited a dismissal payment provision but did not rely upon it in reaching its conclusion.) The language of the two statutory sections differs in that § 81-1106 (f) refers to any week with respect to which the individual receives or has received remuneration.
On the basis of the cases cited above the appellees argue that these dismissal payments were paid “with respect to” the years of their employment rather than with respect to the weeks following their discharge. If this were true no schedule of severance pay could ever be graduated according to length of service, for it would then always be referable to the prior employment. Under our statute this suggestion is effectively rebutted by the fact that the legislature provided a disqualification for the receipt of vacation pay. In the case of. a discharged employee who has accumulated vacation time such pay may be similar to the appellees ’ severance pay in being received as a matter of right, in being graduated according to length of service, and in being paid in a lump sum rather than in weekly installments. Yet the legislature plainly intended for the recipient of vacation pay to be ineligible for unemployment compensation during the period of his paid holiday. We are unable to distinguish that situation from the case at hand.
All the arguments now urged by the appellees were effectively answered in Globe-Democrat Pub. Co. v. Industrial Comm., Mo. App., 301 S. W. 2d 846, which we consider to be directly in point. There the claimant had been discharged after twelve years of service. Under the collective bargaining contract between his union and the employer he was entitled to dismissal compensation amounting to twenty-four weeks ’ pay. He received what the court refers to as “a lump sum dismissal payment” in the amount of $1,825.75. The statute was similar to ours except that it used the phrase “termination allowances” instead of dismissal pay. The administrative commission held that the claimant was disqualified only for the one week in which he received the lump sum payment. In reversing that decision and holding that the claimant was disqualified for the full period of twenty-four weeks the court discussed the principal cases now cited by the appellees and considered the contentions that are now urged. We may conclude this part of our discussion by saying that we thoroughly agree with the reasoning and the conclusions of the Missouri court.
Although we hold that the dismissal payments had a disqualifying effect we are not convinced that the disqualification should be as extensive as the appellant contends. He insists that Bryson, for instance, should be disqualified for a full year merely because 52 units of credit were converted into the lump snm payment that he received.
This position is not sound. The labor contract provides that the credit units shall have no fixed value in terms of time or money. When the SUB trust fund is below its maximum level the SUB payments are proportionately reduced and may be as little as 10 per cent of the amounts ordinarily payable. Thus to approve the appellant’s argument might mean that a modest dismissal payment would result in a prolonged disqualification. Such a narrow view would not be consistent with the liberal interpretation that the act is entitled to receive. Ark. Stats., § 81-1102.
In some states the statutes provide that dismissal pay and the like be allocated to those weeks to which it can reasonably be considered to apply. Schenley Distillers v. Review Board, 123 Ind. App. 508, 112 N. E. 2d 299; Kalen v. Director Div. Emp. Sec., 334 Mass. 503, 136 N. E. 2d 257. Our statute accomplishes the same purpose by directing that the claimant be disqualified with respect to any week for which he has received remuneration in the form of dismissal pay, vacation pay, etc. The legislature obviously intended that this remuneration should be allocated in a- reasonable and appropriate manner.
The dismissal payments in this case were calculated upon the basis of the appellees’ average wages during the year preceding their dismissal. We are of the opinion that the disqualification should be computed in the same manner; that is, each appellee should be disqualified only for the period of time for which his dismissal payment equals the payment in full of his wages at the average rate. This procedure gives effect to the basic intent of the statute and is manifestly fair to both the employer and the employee. The employee is protected against the economic burden of unemployment, while the employer is not penalized for having provided the funds for the dismissal payments.
Since the proof with reference to the claimants’ average earnings and lump sum payments was not fully developed the cause will be remanded through the circuit court for further proceedings consistent with this opinion.
Reversed.
Harris, C.J., and Johnson, J., would affirm the judgment but do not join in the dissenting opinion of McFaddin, J. | [
82,
106,
-48,
12,
-120,
-16,
58,
-102,
110,
-81,
39,
83,
-1,
62,
81,
13,
-9,
53,
113,
107,
-45,
-89,
23,
106,
74,
-77,
57,
-27,
-72,
111,
-76,
84,
77,
48,
74,
-44,
-26,
-32,
-55,
28,
-116,
5,
-24,
-23,
-7,
-48,
56,
110,
32,
11,
1,
-100,
-1,
44,
24,
-55,
108,
110,
91,
-84,
64,
-8,
-118,
4,
-9,
0,
-93,
65,
-100,
39,
-40,
46,
24,
56,
44,
-23,
114,
-66,
-58,
116,
35,
-103,
12,
98,
98,
18,
-75,
-27,
-36,
-72,
6,
-106,
-99,
-60,
-16,
57,
3,
11,
-100,
-100,
-38,
20,
-114,
124,
-6,
5,
31,
40,
-126,
-114,
-10,
-78,
15,
125,
30,
-101,
-17,
-126,
32,
101,
-38,
-70,
93,
87,
114,
27,
-57,
-56
] |
Carleton Harris, Chief Justice.
This is a workmen’s compensation case. Claude Taylor, an employee of McG-eorge Construction Company, on June 8, 1958, collapsed while on a company job, and died from a heart attack. His widow, Mrs. Flo Taylor, sought compensation benefits for herself and two minor children. Three hearings were held before two referees, and the last of the referees denied the claim, finding that Mr. Taylor’s death was not the result of an accidental injury occur ring in the course of his employment. Upon review by the full commission, where additional evidence was also introduced, the order of the referee was reversed, and the commission ordered compensation benefits paid to appellee and her minor daughters, holding that claimants had established by a preponderance of the evidence that there was a causal connection between the exertion of the deceased and his fatal heart attack. On appeal to the Circuit Court, the findings of the commission were affirmed. Appeal to this Court has followed.
Proof on the part of the claimant showed that Taylor and his son, Donald, were employed by McGeorge on a job near Benton. The father and son roomed and ate together while working at this location. The father was employed as a motor patrol operator, and the son as a time keeper. There was testimony on the part of Donald to the effect that his father had worked an unusual number of hours during the week preceding his death, and that the motor patrol operated by his father was in poor condition; the witness stated that the machine was driven, and the blade raised and lowered by the use of levers; that these levers would “kick back hard” when strain was put on the blade. The machine was guided by a steering wheel. The motor patrol, used in leveling the road under construction, constantly came in contact with rocks about a foot in diameter, which would likewise forcibly jar the steering wheel, and his father had received a burn on the arm from contact with the wheel. Three witnesses on behalf of the company denied that the machine was defective, though the maintenance mechanic for McGeorge stated that Taylor had made a complaint to him that the blade would not stay in position, and he (the mechanic) fixed it. A discussion of the significance of this testimony is not required, inasmuch as we have held numerous times that it is not necessary that an injury be caused by unusual strain or exertion before it is compensable, but rather, the claim is compensable when the claimant’s ordinary work aggravates a pre-existing condition, and thus contributes to the injury. See Crossett Chemical Co. v. Sedberry, 232 Ark. 608, 339 S. W. 2d 426, and cases cited therein.
Taylor testified that on Saturday night, June 7th, his father complained of his arms hurting and aching, was very tired, too tired to eat supper, and young Taylor took his father’s supper to the latter’s room. The next morning they had breakfast together, and separated, Donald going to the ice house to pick up ice, and his father proceeding to the job. The son testified that about 8:30 a.m., he arrived at the job, and found his father sitting on the running board of a pickup truck, with his head in his hands. The father’s clothes were dirty and wet from sweat, and his face was pale and dry. Donald took Mr. Taylor to the hospital, where he was examined by Dr. H. B. Thorn, Jr. Thorn advised the elder Taylor to stay in the hospital, but the latter did not desire to do so, but wanted to go to his home in Waldron. Under these circumstances, Dr. Thorn told Donald to be sure his father stayed in bed three days upon arriving home. The two left in a car for Waldron. On the way, near Pencil Bluff, the elder Taylor died. Dr. G. E. Watkins of Mt. Ida, who examined the body, executed the death certificate, stating that Taylor’s death was caused by a heart attack.
At the hearing before the referee, a letter from Dr. Thorn was offered in evidence by the claimant, while Dr. Howard A. Dishongh testified on behalf of appellants. The last paragraph of Dr. Thorn’s letter states:
“The writer is of the opinion that the coronary occlusion could have been caused by his long hours of work and attending stressful circumstances, though it is impossible to ascertain that his death was a direct result of his work.”
Dr. Dishongh, who did not know Taylor, testified in response to interrogation by appellants’ counsel, that he did not think Taylor’s approximately thirty minutes of work on the morning of June 8th had anything to do with his death. “I see no connection with a man’s heart attack and his work, the actual happening, because there has to be a disease of the inside of those arteries before anything happens.” The further question was asked:
“Now, Dr. Dishongh, if the record reveals further that Mr. Taylor had been operating a motor patrol or a grader doing the same or similar type of work for many years and if the record reveals that for several weeks prior to the onset of his illness, that is, on June 8th, 1958, he had worked for seventy hours a week and if the record reveals that prior to June 8th, 1958, the grader which he was operating was somewhat defective in that the gear would kick out and he would have to hold it in with his hand and things of that type, would those facts, in your opinion, or stated more positively, would you state your opinion as to a causal connection between his terminal illness and death in the work he was doing considering further those facts that I have just outlined?”
The doctor replied:
“I don’t think it would have a thing in the world to do with it, Mr. Riff el. We see just as many of those cases that happen in the bed as we do while they are at work.”
He further stated, “I don’t think the weakening of his physical condition would have anything to do with the heart attack.” Apparently, Dr. Dishongh was not convinced that Taylor had actually died of a heart attack, for he stated on cross-examination, “Long hours might have aggravated a pre-existing condition providing you knew there was a pre-existing condition. * * * if you could bring out the fact that he had that condition prior to this attack, I would answer your question, ‘yes’.” Further: “We have nothing except the history to go on that he died of a heart attack. We are assuming that it happened. He conld have .had a stroke just as easily.” Subsequently, before the commission, Dr. Dishongh was asked:
“Q. But will you say, Doctor, that if he had this condition before he went to work that morning, that his work that morning would have aggravated his condition?
A. If you could positively diagnose it as having been a heart attack, I would have to say yes.”
Following the hearing before the referee, the deposition of Dr. E. Lloyd Wilbur, pathologist, was taken, and filed with the commission. Dr. Wilbur testified that he had read the testimony in the case relative to the circumstances surrounding the occasion when Taylor collapsed on the job near Benton. The doctor stated that, from a study of the testimony, he agreed with the two doctors (Thorn and Watkins) that Taylor suffered a fatal heart attack; that, in his opinion, the onset of the heart aihnent was shortly “prior to the time that he was in his room at the motel where he was staying and the time he ate supper on Saturday night.” He said that Taylor should not have worked on Sunday morning, and the fact that the latter went out on the job, in his opinion, aggravated the disease and increased the chance of a fatal outcome. Specifically, Dr. Wilbur was of the opinion that Taylor had suffered a coronary occlusion with a myocardial infarction. On cross-examination, the doctor expressed his reasons for feeling that the onset of the coronary occurred on Saturday night.
“Because pain in the arms — one or both of them— either right or left — is frequently the first sign of a coronary occlusion or a myocardial infarction.
Q. From your study of this case, do you find any other symptom of coronary occlusion, any other clinical symptom apparent prior to the time of death, besides pain in his arms?
A. The extreme fatigue.
Q. All right, sir. So that — what I am getting at— if I told you right now that I had pain in my arms and was tired and didn’t want to work, would you think that I was suffering from an incipient coronary?
A. I would consider it enough to suggest that you get an electrocardiogram.
Q. I understand that. But if I told you that I suffered from bursitis in both shoulders, would that make some difference as to whether I should go and get an electrocardiogram ?
A. Not if you also had fatigue at the same time.”
Dr. Wilbur further was asked by appellants’ counsel:
“One other point, and let’s get this on the record, too. Can you state positively, doctor, from a medical viewpoint whether or not there has been any aggravation in any individual case such as the one we have under consideration now, unless you know the extent of the pathology before the exertion or the aggravating factor, or whatever it may be, and the condition of the patient after the aggravating factor?”
The witness replied:
“I think you can, for this reason: That a heart attack such as he had is a disease entity and a disease that is clinically demonstrable has become apparent. He has suffered enough to produce subjective findings in him. Now, I do not say that he did not have coronary artery sclerosis for maybe a year or two before this happened, but the condition had progressed to the point Saturday night, or Saturday afternoon, in which his heart function became impaired.”
Further:
“Q. And at that time, irrespective of his activity— is that what you are saying?
A. Yes.
Q. All right, go ahead.
A. And then once his heart function became impaired — and I am referring there to the inability of the heart muscle to maintain adequate circulation — then any time immediately after that — and by immediately, I mean within a few days — that he would put an increased muscular effort into his activity — and by increased muscular effort, I mean even being out of bed — or working— that he would increase the load on his already damaged heart muscle; therefore, increased activity would be more apt to produce death.
* * * *
A. The probabilities are that the increased activity increased his chance of dying.”
Appellants contend that Dr. Wilbur’s opinion was conjectural and speculative; i. e,, it is not based upon an adequate factual foundation. We do not agree. Dr. Wilbur, who is admitted by appellants to be a qualified and eminent pathologist, testified that he read all the evidence in the case, and based his opinion thereon. Further, he was specific in giving his reasons for concluding that the heart attack had its onset on Saturday night. It is true that his opinion was in conflict with that of Dr. Dishongh, but, of course, in practically every compensation case, relating to a heart attack, there are conflicting medical views. Appellants assert that the mere fact that Taylor had pain in his arms and was extremely fatigued was not sufficient evidence upon which to form an opinion that a heart attack was commencing. Dr. Wilbur was interrogated very closely on this point, and his testimony was rather forceful and emphatic, as heretofore quoted. Of course, none of the doctors could say positively when the heart attack commenced, and Dr. Dishongh’s testimony indicates that he thought there was a possibility Taylor might have died from some, other cause. Appellants point out that Dr. "Wilbur did not examine the decedent. We might likewise mention that this statement applies equally to Dr. Dishongh. In U. S. Fidelity and Guaranty Co. v. Dorman, 232 Ark. 749, 340 S. W. 2d 266, we said:
“Witnesses classed as experts are permitted to give their opinion for the very reason they are considered experts, and their opinions are frequently based, and expressed, purely in answer to a hypothetical question— without ever seeing the patient — as is the case with appellants’ expert witnesses in this litigation.”
Furthermore, the only two doctors who made a personal examination of Taylor, testified that he had suffered a heart attack, and Dr. Thorn was of the opinion that the coronary occlusion could have been caused by “his long-hours of work and attending stressful circumstances.”
As has been so often stated, we do- not disturb the findings of the commission if there is any substantial evidence to support same. We are of the opinion that the testimony herein set out was sufficient to justify the commission in reaching its conclusions, and the judgment of the Circuit Court upholding the award is hereby affirmed.
Though holding that Taylor’s death was not an accidental injury arising out of his employment, the referee found: “Claude Taylor had been doing very hard, strenuous work for McGeorge Construction Company. He had worked seventy hours during the week which preceded his death. The highway construction work in which he was employed was being carried on in heat and dust. The deceased was working on the job when he suffered his fatal attack.”
Dr. Dishongh agreed that complaints of fatigue and aching in the arms are among the several symptoms of a coronary infarction, but he stated, “I would never have thought of a heart attack just on those two things alone, because we see it so often where we don’t even think about heart attacks.” Further, “I believe that if the man had been having a heart attack---of course, I am.no prophet _ - - but I believe he would have sought the advice of some physician.” | [
-16,
-8,
-104,
-51,
24,
-93,
26,
-70,
81,
-124,
-11,
87,
-81,
-1,
76,
103,
-1,
125,
-43,
43,
-11,
-77,
18,
-22,
-46,
-13,
-15,
-59,
-79,
105,
118,
-35,
77,
48,
-118,
-43,
-26,
0,
-59,
-38,
-58,
4,
59,
-23,
89,
16,
48,
122,
-44,
31,
21,
-114,
99,
42,
29,
-17,
44,
38,
107,
40,
80,
-16,
-85,
5,
127,
17,
-96,
-124,
-98,
43,
-40,
30,
-103,
-79,
16,
-8,
18,
-74,
-57,
84,
97,
-103,
12,
99,
98,
5,
-103,
-17,
-4,
-104,
15,
-34,
-99,
-89,
-114,
57,
57,
3,
-105,
-107,
122,
20,
86,
124,
-10,
21,
93,
36,
71,
-113,
-74,
-128,
-113,
-82,
-100,
-118,
-17,
15,
50,
113,
-52,
-70,
94,
7,
123,
31,
-105,
-72
] |
Sam Robinson, Associate Justice.
The appellee, Reed, filed in the Union Circuit Court three suits on five policies of disability insurance. The cases were consolidated for trial and from judgments for the policy holder on all of the policies, the insurance companies have appealed. There is a suit against the Equitable Life Assurance Society of the United States on one policy; a suit against the Lincoln National Life Insurance Company on two policies (one of these policies was originally issued by the Reliance Life Insurance Company but was taken over and assumed by Lincoln); and a suit against the Guardian Life Insurance Company of America on two policies.
It is undisputed that originally all of the policies were delivered to Reed, the insured, in the State of Tennessee and were contracts made and entered into in that state and were Tennessee contracts. Later Reed moved to Arkansas; here his safe was robbed and all of the policies were stolen. The manner of the re-issuance of the Equitable policy and the Lincoln policies was such that it cannot be said they are not Tennessee contracts the same as were the originals. But the facts are different in regard to the issuance of the Guardian policies and we have concluded that they are Arkansas contracts.
We will first discuss the Equitable and Lincoln policies. They were issued and delivered to Reed while he was a resident of Tennessee. There is no contention that in the beginning they were not Tennessee contracts to be construed according to the law of Tennessee.
Reed claims that he became totally and permanently disabled before he became sixty years of age, but he gave no notice to the insurance companies of his alleged disability until after he became sixty-five years of age. All of the policies provide for waiver of premium and for monthly benefits for permanent and total disability beginning before the insured reaches age sixty; but the policies provide for notice to the insurance company of such permanent and total disability, and under the laws of Tennessee the giving of such notice within a reason able time from tbe commencement of tbe disability is a condition precedent to tbe right to recover. Such notice was not given. Brumit v. Mutual Life Insurance Company of New York, 178 Tenn. 48, 156 S. W. 2d 374, Metropolitan Life Insurance Company v. Walton, 19 Tenn. App. 59, 83 S. W. 2d 274. And, moreover, appellee concedes that under the terms of the Equitable policy, if the rights of the parties are to be determined by the law of Tennessee he cannot recover. Appellee says, “We admit that if the substantive right of Reed in this suit against Equitable is to be determined by the law of Tennessee, he did not prove that he was totally and permanently disabled before age sixty in accordance with the law of Tennessee.” The same thing is true of the Lincoln policies.
In several Arkansas cases it has been held that the giving of notice is a condition subsequent, and Reed argues that the policies should now be construed according to the law of Arkansas: first, because after moving to this State he borrowed money on the policies; second, because the policies were stolen in this State and the insurance companies replaced them; third, because he changed the beneficiary; fourth, because since 1930 notices of premiums due have been sent to him in Arkansas; and lastly, because he was domiciled in Arkansas at the time he became totally and permanently disabled. We do not think any or all of the things mentioned changed the Tennessee contracts to Arkansas contracts so as to cause the rights of the parties to be determined by the law of Arkansas.
To support his position appellee cites Aetna Casualty and Surety Co. v. Simpson, 228 Ark. 157, 306 S. W. 2d 117 and State Farm Mutual Automobile Ins. Co. v. Fuller, 232 Ark. 329, 336 S. W. 2d 60, but these cases merely hold that Arkansas law in matters of procedure should be applied to foreign contracts. Appellee also cites the California cases of Blair v. New York Life Ins. Co., 104 P. 1075, Baekgaard v. Carrerio, 237 F. 2d 459 and Braun v. New York Life Insurance Company, 115 P. 2d 880. But those cases appear to be based on the California Statute See. 1606, providing that contracts are to be construed according to the place of performance. Appellee also cites the cases of Watson v. Employers Liability Assurance Corporation, 348 U. S. 66 and Clay v. Sun Insurance Office, Limited, 363 U. S. 207, but we feel that our own cases are controlling, and that is: the law of the place where the contract is made prevails.
We said in Prudential Insurance Co. v. Ruby, 219 Ark. 729, 244 S. W. 2d 491, “ ‘Matters bearing upon the execution, the interpretation and validity of the contract are to be determined by the law -of the place where it is made.’ In J. R. Watkins Medical Co. v. Johnson, 129 Ark. 384, 196 S. W. 465, after quoting the language from Howcott v. Kilbourn we added: ‘It is to be noticed that the rule extends to the interpretation of the contract, as well as to other questions relating to its enforcement, and that the interpretation placed upon the contract by the courts of the State where it is made will be accepted in other states for the purpose of testing its validity and of affording remedy of its enforcement.’ ” See also John Hancock Life Insurance Co. v. Ramey, 200 Ark. 635, 140 S. W. 2d 701.
It is said in Appleman on Insurance, Section 7092, ‘ ‘ The validity, interpretation and obligation under a policy applied for, executed and delivered to the insured in one state has been held governed by the law of that state, though the insured subsequently moved elsewhere. The laws of the latter place apply only to remedy and procedure.” And, in 44 Ó. J. S. page 514 it is said, “Where the place of contract has been fixed it may not be changed by an agreement as to where premium notices shall be sent or as to the payment of premiums to agents; by the subsequent payment of premiums in another state; by the fact that, in accordance with provisions in the policy, it has been converted to one of a different type, or the beneficiary has been changed, or interests in the policy have been assigned; or by the fact that the contract has been taken over by a foreign insur anee company, or thereafter a change of beneficiary, made pursuant to the terms of the policy, was made by endorsement on the original policy at the foreign company’s office outside the state in which the contract was made.” The rights of the parties in the Equitable and Lincoln policies must be determined by the law of Tennessee, and as heretofore pointed out, under the law of that state the policyholder’s failure to give proper notice is fatal to his right to recover.
When appellee’s policies were stolen from his safe in North Little Rock, the Equitable and Lincoln companies promptly issued substitute policies which did not become Arkansas contracts, but the circumstances surrounding the issuance of new Guardian policies were such as to make them Arkansas contracts. The Guardian Company required the insured and beneficiary to sign an affidavit including, “Deponents hereby request and authorize the said company to cancel on its books the policy thus lost or destroyed and to issue in its place and as a substitute therefor a new one bearing a new number and a new date of issuance, but to be otherwise identical with the aforesaid policy lost or destroyed and in consideration of the issuance of the said substitute policy in the sum of $1.00 each of them in hand paid by said company, the receipt of which is hereby acknowledged by deponents [polh^drolder and beneficiary] jointly and severally have remised, released and forever discharged and by these presents do for themselves, their respective heirs, executors and administrators remise, release and forever discharge said company or its successors, . . .’’It appears that for a consideration the original Guardian policies were completely released and cancelled out and new policies were issued in Arkansas, making them Arkansas contracts. Since the Guardian policies are Arkansas contracts, the rights of the parties in those policies must be determined by the law of Arkansas.
Appellee recovered a judgment against Guardian on both policies for permanent and total disability for a period beginning five years next before tbe commencement of the action. Guardian Policy No. 586582 provides for waiver of premium and payment of disability benefits, but the policy further provides, “But such waiver of premiums shall not begin, nor shall such income payments begin as of a date, more than one year prior to the date of the receipt by the company of the required proof of disability.” And Guardian Policy No. 586581 provides that the insurance company will “Begin to pay to the insured the disability income stated on the first page hereof to be reckoned from the date of the receipt of such proof by the company at its home office. Such payments shall be made on. said date in each calendar month during the remaining lifetime of the insured so long as the disability continues, and the amount to be paid on approval of such proof shall include any payment or payments that may have accrued from the date of the receipt to the date of approval of such proof by the company ” (our italics) The company will “waive payment of further premiums becoming due hereunder during such disability, save any unpaid premiums necessary to complete premium payments for the first policy year. Any premium or premiums for the current policy year other than the first policy year which shall have become due after the beginning of such disability and prior to approval of the proof thereof, and, if paid, be refunded.”
The language of the Guardian policy first above mentioned, “But such waiver of premiums shall not begin, nor shall such income payments begin, as of a date more than one year prior to the date of the receipt by the company of the required proof of such disability” is so clear and unambiguous that it admits of no doubt as to its meaning. Its meaning could not be couched in any clearer language, and it means just what it says.
The same thing is true of Policy No. 586581 which provides that the insurance company will, “Begin to pay to the insured the disability income stated on the first, page hereof to be reckoned from the date of the receipt of such proof by the company at its home office. Such payments will be made on said date in each calendar month during the remaining lifetime of the insured so long as the disability continues, and the amount to be paid on approval of such proof shall include any payment or payments that may have accrued from the date of the receipt to the date of approval of such proof by the company.” Thus, it will be seen that under this policy, disability payments are to be reckoned from the date of the receipt by the company of proof of disability. Reckoned, according to Webster, means computed, calculated, etc. In McWilliams v. Comeaux, 135 La. 210, 65 So. 112, the Court said, “It is well settled in our jurisprudence that to ‘reckon from’ a particular day means that the reckoning begins from and after, and does not include, the day reckoned from. Hence, reckoning a period of ten years from February 13,1901, excludes that day and includes the whole of the thirteenth day of February, 1911.”
Appellant argues that there is no substantial evidence that the insured became totally and permanently disabled within the meaning of the policy before he became sixty years of age in 1954. It appears that the insured had just about everything wrong with him that a person could have and still live, and his trouble was far advanced before he reached age sixty in 1954. In 1953 he was diagnosed as having obstructive emphysema. In 1954 he was diagnosed as having tuberculosis with a cavity in the upper left lobe of his lung, necessitating the removal of the lobe. In 1955 he was operated on for removal of a section of his colon. Later he was operated on for a large hernia, and at the time of the trial it needed repairing.
The insured had been with Lion Oil Company for a long time and was a valuable employee, earning $36,000.00 a year, and although much of the time he was in a helpless condition and in the hospital in New Orleans or in Tucson, Arizona, the company made no reduction in his salary until 1957 when it was reduced to $25,000.00 a year. It appears that the company was very grateful for the services the insured had rendered, and being an exceptionally fine company, it, in effect, put the insured on a pension. It is not shown that Reed did any substantial amount of work subsequent to September, 1953. In fact, he was in such physical condition that it is hard to see how he did any work 'at all. In the circumstances it was a jury question as to whether he was permanently and totally disabled within the meaning of the policy. Alexander v. Mutual Benefit Health and Accident Association, 232 Ark. 348, 336 S. W. 2d 64.
Under the instructions of the court the jury was permitted to find for the policyholder from the commencement of his disability. To sustain this ruling of the court, the insured relies on Smith v. Mutual Life Insurance Company of New York, 188 Ark. 1111 and some other cases to the same effect. In the Smith case the Court held that under the terms of the disability policy involved, recovery could be had by the insured from the commencement of the disability. The policy did not provide that the insurance company would be liable for disability benefits only from a certain specified time. On the contrary, the Court said, “We think the language here employed is plain and definite to the effect that, if the insured suffers total and permanent disability prior to his sixtieth birthday, and at the time has paid all premiums due, liability then and there attaches, and recovery is postponed until notice or proof of loss is submitted.” To the same effect is Equitable Life Assurance Society v. Felton, 189 Ark. 318, Missouri State Life Insurance Company v. Foster, 188 Ark. 1116. 69 S. W. 2d 869 and Mutual Life Ins. Co. of New York v. Bowman, 209 Ark. 1001.
But, in Aetna Life Insurance Company v. Davis, 187 Ark. 398, the Court gave effect to a provision in the policy limiting the time of recovery to a period of six months prior to the time the proof was furnished. There the Court said, “If therefore the disability exists and commenced when the contract was in force, it is immaterial how or when proof is made, if within the statutory period, and recovery may be had for the damage sustained, excluding that occurring beyond six months from the time proof is made.” (our italics). In Aetna Life Insurance Company v. Langston, 189 Ark. 1067, the Court cited with approval the above quoted language in the Davis case. In Missouri State Life Ins. Co. v. Case, 189 Ark. 223, the Court said, “This Court has often held that, unless it is inescapable from the language of the policy that notice of disability and proof thereof are conditions precedent to recovery, it is the existence of disability that fixes liability and not the proof thereof.”
We think the language in the Guardian policies is Inescapable to the effect that in one policy the company would pay for a time beginning one year before receiving proof of loss and the other policy the company would pay from a time beginning upon the receipt of proof of loss.
In the Case at Bar the insured gave the insurance company no notice of his disability until more than five years after the commencement of such disability. By requested instruction No. 3, refused by the trial court, appellant asked the court to submit to the jury the question of whether the insured gave reasonable notice of his disability. We think that instruction should have been given to the jury. In Home Life & Accident Company v. Beckner, 168 Ark. 283, 270 S. W. 2d 529, the Court held that the policyholder could not wholly ignore the requirements of the policy as to notice and said, “The question as to what would be a reasonable time, under the varying circumstances of each particular case, would seem primarily to be a question for the jury under proper instructions by the court.” And in Aetna Life Insurance Company v. Davis, 187 Ark. 398, 60 S. W. 2d 912 the Court said, “The proof of disability is intended to give the insurer an opportunity to investigate the facts affecting the question of its liability and the extent thereof.” Some of the appellee’s trouble occurred before he became sixty years of age and some of it occurred at a later time. In these circumstances it was a question for the jury as to whether the insured gave reasonable notice of his disability.
The judgments against Equitable and Lincoln are reversed and the causes dismissed. The judgment against Guardian is reversed and the cause remanded for a new trial. | [
52,
124,
-44,
31,
8,
32,
50,
-110,
123,
-30,
-89,
83,
-7,
-57,
69,
107,
-9,
105,
117,
106,
117,
-89,
51,
34,
-46,
-109,
-7,
-60,
-80,
111,
-18,
-41,
76,
120,
-54,
85,
-26,
72,
-59,
28,
-54,
8,
9,
-19,
-103,
-46,
48,
-17,
80,
79,
81,
-105,
-110,
-66,
59,
75,
8,
44,
-39,
-95,
-48,
-72,
-118,
71,
120,
1,
51,
68,
-70,
35,
116,
14,
-112,
-80,
8,
-24,
50,
-74,
6,
53,
107,
-103,
1,
102,
99,
-80,
-91,
69,
-20,
-120,
55,
103,
63,
-82,
-110,
105,
43,
1,
-73,
-99,
118,
28,
38,
-40,
-4,
-100,
29,
108,
5,
-114,
-106,
-89,
-17,
-32,
-100,
35,
-25,
14,
-96,
85,
-50,
-96,
93,
71,
119,
-101,
-114,
-54
] |
Neill Bohlinger, Associate Justice.
The appellant, plaintiff in the court below, filed in the Sebastian Circuit Court, Fort Smith District, his complaint against Milton Owens, Carroll L. Owens, Bill Griffin and M. N. Griffin, alleging that he was the minor son of Otto J. Bieker and resided in Fort Smith, Arkansas. That Milton Owens was a minor who resided with his father, Carroll L. Owens in Fort Smith; that Bill Griffin was a minor residing with his father, M. N. Griffin in Fort Smith; that on or about August 26, 1960, the defendants, Bill Griffin and Milton Owens, driving an automobile which was the property of Carroll Owens, pursued and overtook the plaintiff, Johnnie Bieker, and by driving directly in front • of the automobile driven by Johnnie Bieker, forced him to stop and that the defendants, Griffin and Owens, forcibly, deliberately, maliciously, willfully and intentionally dragged the Bieker boy from his automobile and physically assaulted him by striking, beating and kicking the plaintiff and so injuring him that he was hospitalized for contusions of the face, lacerations, broken nose and mild concussion with other injuries. That the defendants, Carroll Owens and M. N. Griffin, knew that their sons, Milton and Bill, had dangerous tendencies and propensities of a willful and malicious nature and that by their lack of parental discipline and authority they had permitted, or failed to correct, the acts of their sons in the striking, beating and abusing other younger men less physically endowed than themselves and thus knowing of the propensities of these minors, the defendant parents failed and neglected to exercise needed restraint and authority over them and that due to such negligence the appellant alleges he was injured.
To this complaint Carroll L. Owens, appellee, interposed a general demurrer and the court, on February 20, 1961, sustained the demurrer and dismissed the complaint. From that action of the court comes this appeal.
“The general common law rule is that a parent is not liable of a minor child’s tort unless there is some element of participation,” Bonner v. Surman, 215 Ark. 301, 220 S. W. 2d 431.
The “Family Purpose Doctrine” is not accepted in this state and this court has recognized the rule that the negligence of a child cannot be imputed to the parent merely because of the parental relationship. Richardson v. Donaldson, 220 Ark. 173, 246 S. W. 2d 5511.
But here we are not concerned with the negligence of a child but with the negligence of the parent in permitting either actively or passively, a minor willfully or negligently to commit such acts which could reasonably be expected to cause injury to another.
It is within reason and good logic to- say that the parent has a responsibility to control minor children while they are in their formative years. For while they are not in the custody of the parents, absent any official action to the contrary, no other source of control may be found. Of course minors above a certain age are subject to criminal and civil sanctions but these sanctions are remedial rather than preventative. There is a question whether the civil sanctions are of any consequence since judgments against minors are of little practical effect. The old adage “an ounce of prevention is worth a pound of cure,” could be applied ixi these situations if the responsibility for the prevention is placed on the parents.
Since each human mind and personality is exclusively that of the individual possessing it, it would be unreasonable to place an absolute responsibility for the acts of another on any person. But where the parent (1) has the opportunity and ability to control a minor, and (2) has knowledge of the tendency or proclivity of the minor to commit acts which could normally be expected to cause injury to others, and (3) after having such opportunity, ability and knowledge has failed to exercise reasonable means of controlling the minor or appreciably reduce the likelihood of injury to others because of the minor’s acts, the parent should be made to respond to those who have been injured by such acts of thé minor.
39 American Jurisprudence § 58 states the rule in this manner:
“Although there are some decisions which have failed to recognize this principle, the general rule is that a parent may be liable for the consequences of failure to exercise the power of control which he has over his children, where he knows, or in the exercise of due care should have known, that injury to another is a probable consequence. Thus, a father may be held liable where he knows that a tortious act is in contemplation, or that his children are persisting in a course of conduct likely to result in injury to another. Failure to restrain the child, it is said, amounts to a sanction of or consent to his acts by the parent.
“It is questionable whether mere knowledge by the parent of his child’s mischievous or reckless disposition is enough to make him liable for torts of the child . . . Certainly, where there is nothing to show any knowledge and therefore any approval by the parent of a line of conduct on the part of the child, the parent is not liable. However, it must be remembered that, as in all negligence cases, the issue in the last analysis is whether the parent exercised reasonable care under all the circumstances,- therefore, especially where he has had knowledge of particular acts of the same kind as those which caused the injury, it would seem that he may, under some circumstances, be held liable solely on the basis of such knowledge followed by his failure to restrain or caution the child. Accordingly, it is held that to prove negligence on the part of the parent, evidence is admissible that he knew of the child’s former reckless conduct.” (Emphasis ours.)
67 Corpus Juris Secundum § 68 has this to say:
“As a general rule a parent may be liable for an injury which is caused directly by the child, where the negligence of the parent has made it possible and probable that such injury would so occur.
‘ * * * While mere knowledge by the parent of a child’s mischievous and reckless or heedless or vicious disposi tion is not of itself sufficient to impose liability witli respect to torts of the child, according to some authorities, liability of the parent arises from failure to exercise control over the child where the parent knows, or, in the exercise of due care, should know, that injury to another is a natural and probable consequence of such failure, and the parent may be liable for negligence in causing the child to become dangerous and in not attempting to restrain the child, or for failure to correct or restrain the child where the parent has knowledge of a dangerous habit of the child which is likely to cause injury to others.
‘ Generally speaking, liability of the parent is based on the rules of negligence rather than the relationship of parent and child. ‘Negligence’ in this connection has been regarded as a relative term and the duty imposed on the parent as dependent on the particular circumstances. In accordance with rules applicable in negligence cases generally, ***the negligence of the parent must have been the proximate cause of the injury. In other words, the injury must have been the natural and probable consequence of the negligent act, that is, a consequence which, under the surrounding circumstances, might and ought reasonably to have been foreseen as likely to flow from such act. In order to render a parent liable, his or her negligence in the exercise of parental supervision must have some specific relation to the act of which complaint is made, and liability may not be predicated on a failure to supervise where supervision would not have rendered the parent aware of the possibility of the tortious conduct of the child.
“The distinction has been made that any liability of the parent is for his own fault and not for the fault of the child, and the fact that the child is liable for the particular tort does not prevent the imposition of liability on the parent for his negligence with respect to such tort. ’ ’ (Emphasis ours.)
In Ellis v. D’Angelo et al, 116 Cal. App. 2d 273, 253 P. 2d 675, the complaint alleged that parents em ployed plaintiff for first time as baby sitter for a four year old son; that parents knew and failed to warn plaintiff that son habitually engaged in violently attacking and throwing himself forcibly and violently against-other people and violently shoving and knocking them and that shortly after plaintiff entered on her duties in the home the son attacked her to her resultant injury. The court held the complaint stated a cause of action against the parents for their negligence, saying:
“While it is the rule in California, as it is generally at the common law, that there is no vicarious liability on a parent for the torts of a child there is ‘another rule of law relating to the torts of minors which is somewhat in the nature of an exception, and that is that a parent may become liable for an injury caused by the child, where the parent’s negligence made it possible for the child to cause the injury complained of, and probable that it would do so.’ Buelke v. Levenstadt, 190 Cal. 684, 689, 214 P. 42, 44; Rocca v. Steinmetz, 61 Cal. App. 102, 214 P. 257.”
In 155 A. L. R. 85, in discussing Capps v. Carpenter, 283 P. 655, the annotator states, at page 90:
“Evidence of the boy’s reputation for possessing a malignant disposition, likely to make him dangerous to other children, as well as evidence of particular manifestations thereof, provided the instances were strictly relevant and of marked significance, was held admissible to show that his father knew, or should have known of such disposition; but evidence of reputation for possessing other propensities, or trivial instances of rough behavior were held not admissible.”
The question before us is, does the complaint state a cause of action? We think that it does. It describes the time and place and the extent of the tortious action, the injuries that were sustained by reason thereof, and in stating that the defendant parents had full knowledge and particulars of previous acts committed by their sons in inflicting injuries on smaller boys and that such minor sons had committed such willful and wanton acts, as the act committed against the plaintiff and that said parents,, knowing of these matters continuously failed to exercise any parental authority over the reckless and malicious conduct of their sons, thereby sanctioning, ratifying, and consenting to the wrongful acts, the complaint states a cause of action against the parents.
For the reason stated herein, the action of the circuit court in sustaining said demurrer is hereby reversed and this cause is remanded with directions to overrule the demurrer that further proceedings not inconsistent with this opinion may be had.
Harris, C. J., concurring.
As defined by Webster: “Incapable of being corrected; not reformable; unmanageable; delinquent.” | [
-16,
-32,
-124,
62,
11,
96,
24,
26,
19,
-61,
-27,
-45,
-53,
76,
5,
113,
-5,
27,
84,
104,
-11,
-77,
83,
-32,
-38,
-77,
57,
-41,
-77,
-55,
44,
52,
93,
16,
-54,
-105,
34,
74,
-59,
22,
6,
0,
25,
124,
89,
3,
52,
126,
16,
15,
53,
-113,
-57,
42,
58,
-6,
45,
110,
95,
-87,
-40,
58,
-126,
21,
-2,
20,
-79,
6,
-70,
5,
88,
24,
-116,
49,
-88,
-24,
50,
-94,
-126,
-12,
79,
-119,
-120,
96,
-9,
32,
29,
-25,
-96,
-120,
15,
-66,
29,
-91,
-102,
113,
2,
37,
-73,
-107,
114,
80,
15,
-6,
-21,
69,
117,
96,
-126,
-118,
-42,
-127,
-57,
-32,
84,
35,
-21,
77,
38,
117,
-49,
-44,
93,
85,
120,
-101,
22,
-112
] |
Paul Ward, Associate Justice.
Tbis appeal comes from an order of the Probate Court of St. Francis County admitting to probate the last will and testament of Pink Jones. No testimony was introduced, the material facts being stipulated. They are set out below.
Pink Jones, at all times a resident of St. Francis County, in 1932 began living with appellee and continued to live with her as husband and wife in Arkansas until his death on April 20, 1959. They were never married, and J ones had no legally married wife at any time. The legal name of appellee was Lenora Scott, but she adopted the name of Lenora Jones when she began living with the deceased.
Pink Jones executed a will on October 6, 1952 which left.all his property to “my wife, Lenora Jones”. The will was filed April 29, 1959 with Proof of Will in due form, and thereafter appellee filed a petition for probate of will and appointment of personal representative showing the surviving spouse to be “Lenora Scott Jones” widow, and the heirs to be four brothers. On May 7, 1959 the Probate Court ordered “the instrument dated 6th day of October, 1952, executed by decedent and which has been filed in this Court, be, and the same is hereby, admitted to probate as the Last Will of Henry Pink Jones, deceased”. The same order appointed appellee executrix. On May 22, 1959 there was filed “Proof of Publication” showing publications on May 11 and 18, 1959 of notice of probation of the will and appointment of appellee as executrix.
On November 19, 1959 the four brothers of the deceased filed a “Petition To Set Aside Will” alleging they were heirs of Pink Jones, deceased; that Pink Jones left no children or widow; that Pink Jones and appellee were never married, and; that ‘ ‘ there is no such person as Lenora Jones, wife of Pink Jones, Decedent”. The prayer for relief was in accord with the above allegations. Appellee responded to the above, stating, among other things, that the time for filing said petition (by appellants) expired on November 11, 1959 (that is, six months after the Order of May 7,1959), which was twelve days before the petition was actually filed. Thus, two issues are presented to this Court: One. Was appellants’ petition filed in the time allowed by the Probate Code; and Two. Is the will valid?
One. We have concluded that appellants’ petition to set aside (contest) the will was filed in due time. Section 62-2114 of Ark. Stats, provides three periods of limitations in which such petition can be filed. Sub-section b (1) clearly is not applicable here. Sub-section b (2), upon which appellee relies, is not effective against appellants because they were not given notice of the admission of the will to probate in the manner required by § 62-2111. This latter section requires that “A copy of the notice shall also be served upon each heir . . .” This was not done here, although the four brothers were mentioned as heirs in the petition to probate. Therefore the applicable sub-section here is b (3) which gives appellants five years from May 7, 1959 in which to file their contest.
Two. We find no merit in appellants’ contention that “The lower court erred in its finding that it was the testamentary intent of Pink Jones to leave his estate to Lenora Scott (Jones) regardless of her name.” The cardinal rule, many times expressed by this Court, is that the testator’s intent must, if possible, be determined from the will itself. See Robinson v. Bishop and Wife, 23 Ark. 378; Gregory v. Welch, 90 Ark. 152, 118 S. W. 404; Cook v. Worthington, 116 Ark. 328, 173 S. W. 395; Norris v. Johnson, 151 Ark. 189, 235 S. W. 804; and Crittenden v. Lytle, 221 Ark. 302, 253 S. W. 2d 361. Here, it appears to us, the will is susceptible of but one logical conclusion. That conclusion is that Pink Jones intended to leave his property to the woman he called “my wife, Lenora Jones”. There is no contention or suggestion that appellee is not the woman referred to in the will. To make the identity still more conclusive the trial court had the right to consider the ‘ ‘ stipulation as to facts” as we did in Duensing v. Duensing, 112 Ark. 362, 165 S. W. 956 and Rand v. Thweatt, Adm’r., 222 Ark. 556, 261 S. W. 2d 778. In such stipulations we find that the deceased and “Lenora Jones” lived together since 1932, that the real name of the person who lived with the deceased was “Lenora Scott”, and that Lenora Scott adopted the name of Lenora Jones, the same as appellee herein.
In- this case no questions are raised as to the testamentary capacity of, or the exertion of undue influence on, the testator. This being true, the language used in Alford v. Johnson, 103 Ark. 236, 146 S. W. 516, is appropriate here. In that case the Court said:
“As long as the absolute power of testamentary disposition is conceded, a testator has the right to make a disposition of his property by will to one with whom his relations have been meretricious if it is a free and voluntary act, and of one having proper mental capacity.
In order for a will to be valid, it is not necessary that the motive which led to its execution should be virtuous, or that the object of the testator’s bounty should be meritorious; it is only essential that the will should be the free and voluntary act of a mind having proper testamenta ry capacity. ’ ’
It follows from what we have heretofore said that the Order of the Probate Court should be, and it is hereby affirmed. | [
49,
-20,
-27,
28,
41,
-29,
10,
-118,
-30,
-62,
53,
-45,
-91,
114,
69,
121,
58,
-113,
85,
107,
-101,
55,
23,
-79,
18,
-5,
107,
-33,
-75,
77,
-92,
-41,
120,
0,
10,
-115,
102,
-51,
-59,
84,
-52,
75,
9,
-28,
25,
-96,
48,
103,
84,
23,
17,
62,
-80,
-81,
60,
98,
104,
44,
123,
44,
88,
-78,
-119,
5,
-19,
23,
-109,
7,
-66,
-121,
88,
11,
-104,
49,
-128,
-24,
83,
-90,
-122,
116,
41,
-99,
8,
102,
98,
8,
-128,
-17,
-96,
-120,
-97,
42,
-99,
-121,
-78,
57,
80,
35,
-76,
-107,
109,
-48,
11,
126,
-20,
79,
28,
-84,
-115,
-50,
-106,
-111,
-119,
56,
-112,
10,
-29,
13,
48,
117,
-55,
-62,
81,
6,
115,
-101,
-122,
-46
] |
Jim Johnson, Associate Justice.
This is an original action seeking an order prohibiting the Circuit Court of Cleveland County from proceeding to try the case of Mrs. J. E. Langford, Administratrix of the Estate of J. E. Langford, deceased, v. C. J. Picton and the Arkansas Towing Company.
The complaint alleges that C. J. Picton, the Arkansas Towing Company, and Max Linthicum were doing business in Arkansas on June 26, 1959, and were jointly engaged in the construction of a loading dock on the Ouachita River at Moro Bay in Bradley County, Arkansas, and that J. E. Langford was killed when a fishing boat in which he was riding was overturned, allegedly because of the joint negligence of the defendants in operating a tugboat.
Picton and Linthicum are residents of the State of Texas and the Arkansas Towing Company is a Texas corporation. Service of process was attempted on all three defendants under Arkansas Statute § 27-340.
All three of the defendants filed separate motions to quash which were heard by the Cleveland Circuit Court on September 1, 1961. The Court granted the motion of Max Linthicum on the ground that at the time of the accident he was a bona fide resident of the State of Arkansas and though thereafter he became a nonresident, he was not subject to the provisions of Arkansas Statute § 27-340. The Court overruled the motions to quash of Picton and the Arkansas Towing Company. From such order comes this Petition for Writ of Prohibition.
The evidence adduced at the special hearing on the motions revealed that the Arkansas Towing Company was formed in April of 1959 by C. J. Picton, Max Linthicum and E. B. Picton. It has never qualified to do business in Arkansas. The Towing Company entered into a contract with the Moro Gravel Company, an Arkansas corporation, on June 3, 1959. The first section of the contract is as follows:
“First party [Moro Gravel Company] does hereby grant unto second party [Arkansas Towing Company] the exclusive right and privilege to haul by water all sand and gravel excavated and shipped by water by First Party at Moro Bay, Arkansas, for a period of one year beginning on the 1st day of August, 1959, and terminating on the 1st day of August, 1960. Said sand and gravel shall be hauled by tug and barge to Monroe, Louisiana, a distance of approximately one hundred (100) miles and Second Party does hereby agree to haul sand and gravel said distance upon the following terms and conditions:”
The Towing Company leased several barges to fulfill this contract and made arrangements to use a tugboat owned by C. J. Picton and a tugboat owned by Max Linthicum. The barges and the two tugboats were taken to Moro Bay in June of 1959. The loading facilities, which under the contract were to be constructed by Moro Gravel Company, were not completed when the tugboats and barges arrived at Moro Bay.
One of the leased barges and the tugboat owned by C. J. Picton was used “roughly a period of ten days” in the completion of the construction of the loading facilities. The loading facilities extended from the land out into the water “a piece”. A pile driver had been placed on the barge and the tugboat was used to locate the barge at the proper place and to steady the barge in place while piling was being driven. It was while the loading facilities were being so constructed on June 26, 1959, that J. E. Langford drowned, allegedly as a result of the hazard caused by the backstream of the tugboat which was owned by Picton and being operated at the time by Max Linthicum. There was evidence to the effect that only a day or so before the drowning C. J. Picton had been captaining his own tugboat with his own crew which he paid from his own funds and performing the same duties in the construction of the loading facilities as were being performed by Max Linthicum at the time of the drowning.
Petitioners contend that they received no compensation for the use of the barge, tugboat and men during the construction operation, yet on cross-examination Max Linthicum testified as follows:
“Q. I understand, but let me ask you this, The whole operation and your part of it there was all through mutual agreement between you and Mr. Picton and the Arkansas Towing Company. Is that correct? Whether it was individually or a partnership or a joint enterprise. You were all jointly interested in it?
“A. We were interested. We certainly weren’t out there sweating for free.”
From all the evidence presented the trial court surely could have concluded that the work performed by petitioners in the construction of the loading facilities was for the mutual benefit of petitioners and Moro Gravel Company.
Petitioners further contended that they were not doing business or performing any character of work or service in Arkansas, and that they were in Arkansas for the sole purpose of engaging in interstate commerce, and loading facilities being constructed were an instrumentality of interstate commerce.
There was no evidence’to the effect that the loading facilities were to be used solely for the loading of barges for shipment of sand and gravel in interstate commerce. There was evidence showing that petitioners had made a shipment to a place other than Monroe, Louisiana. Certainly the trial court could have found the facilities were such as could be used by the domestic corporation, Moro Bay Company, to service local or intrastate shipments. There was also evidence tending to show that petitioners maintained an office at Calion, Arkansas. Their business stationery listed a post office box in Calion. One of petitioners’ witnesses on cross-examination testified to the effect that there was an office at Calion and that they had a telephone listing and advertisement, not only in Calion but in El Dorado and several other cities in that area of Arkansas. Surely this evidence raised the question of fact as to whether petitioners were holding themselves out to do business in the areas in which the evidence tended to show they advertised. There was further evidence from which the trial court could have concluded that the petitioners had not begun their operations under the contract: That they had not hauled a single shipment: They undertook to help the local producers construct its facilities which they were under no obligation to do under their contract to transport the products: That nothing had been transported in interstate commerce prior to the time the tort complained of was committed: That none of the acts of interstate commerce under the contract had occurred, and that there was no link in the chain of transportation involved in the work that was being done.
It follows, therefore, from what has been said above that jurisdiction of the court was determined by contested facts in which case we have repeatedly held that prohibition will not lie. See Co-Ark. Construction Company v. Amsler, Judge, 234 Ark. 200, 352 S. W. 2d 74; Clement v. Williams, Chancellor, 227 Ark. 199, 297 S. W. 2d 656; Twin City Lines, Inc., v. Cummings, Judge, 212 Ark. 569, 206 S. W. 2d 438; Murphy v. Trimble, 200 Ark. 1173, 143 S. W. 2d 534; Metropolitan Life Ins. Co. v. Jones, 192 Ark. 1145, 97 S. W. 2d 64; Stockburger v. Combs, 190 Ark. 338, 78 S. W. 2d 816; Merchants & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. 2d 421. See also Judge Leflar’s “The Law of Conflict of Laws”, Chap. 4, § 34, p. 56.
Writ of Prohibition denied.
Harris, C. J., and Ward, J., dissent. | [
116,
105,
-10,
61,
24,
-24,
26,
-70,
-45,
33,
-27,
83,
-17,
-34,
73,
107,
99,
-1,
-43,
121,
-26,
-73,
17,
-28,
-46,
-45,
-7,
-57,
-72,
-49,
-20,
-42,
88,
112,
-50,
-59,
-58,
78,
-59,
28,
-42,
97,
11,
-31,
121,
88,
52,
-17,
-44,
31,
53,
-115,
-29,
42,
25,
-29,
109,
63,
-37,
46,
88,
51,
-53,
-36,
127,
20,
-95,
36,
-113,
19,
120,
30,
-112,
49,
32,
-8,
118,
-94,
-60,
-12,
67,
-39,
8,
112,
98,
8,
21,
-49,
-4,
-120,
23,
-86,
-99,
-90,
-126,
121,
75,
3,
-98,
-100,
123,
16,
7,
126,
-2,
-124,
31,
44,
3,
-49,
-112,
-77,
-123,
44,
28,
19,
-23,
-125,
48,
117,
-55,
-14,
92,
71,
115,
27,
-122,
-75
] |
Jim Johnson, Associate Justice.
This is a workmen’s compensation case. The dispute is over whether Walter B. Rogers, a deceased workman, was an employee of appellant, D. H. Garner, Contractor, at the time of receiving the injury which took his life.
It is appellants’ forceful contention that the deceased was an independent contractor. The Workmen’s Compensation Commission found the deceased to be an employee within the meaning of the Workmen’s Compensation Act. This finding was affirmed by the Pulaski Circuit Court, all of which results in this appeal.
For reversal appellant relies upon only one point, i.e., “There is not sufficient competent evidence in the record to warrant the making of the award.”
The unchallenged facts set forth in the briefs are as follows:
Walter B. Rogers, prior to his death on July 8, 1960, owned a dozer, a loader and a truck, on which he hauled the equipment. He worked for anyone who called for his services and occasionally would hire at random someone to help him on an hourly basis, as he did not need a full time employee because he himself operated both the dozer and the loader. He almost invariably worked on an hourly basis, and was paid $12.50 per hour for his work. His widow, appellee Marie Rogers, kept his records, and each night would enter therein the number of hours he worked the preceding day.
At approximately 6:00 or 6:30 o ’clock on the morning of July 8, 1960, appellant D. H. Garner, Contractor called Rogers by telephone and asked if his dozer was available. Upon receiving an affirmative reply, appellant advised Rogers where the job was located and told him to help clear out the small timber on a designated right-of-way near the armory building of the Little Rock University. Appellant stated that the work would last approximately two days; that he would be paid upon completion of the work at the rate of $12.50 per hour; and that he should report as soon as possible for appel lant needed immediate assistance, since all of the equipment of appellant was in use.
At the time Rogers began the work the appellant was using his employees, James D. Gray as a scraper operator, Ted Knoedl, as a timber cutter, and Lee Blair, Jr., as a dozer operator, in the performance of the clearing contract which appellant had undertaken. A short time after Rogers commenced work his dozer came in contact with a live wire and he was fatally injured.
After the death of Rogers, the appellee, Marie Rogers, upon the request of appellant, prepared and mailed to appellant a statement for dozer work of 40 hours at $12.50 per hour, totaling $500.00. Appellant had agreed to this amount because the dozer was inactive for several days subsequent to and on account of the death of Rogers.
Section 81-1302(b), Arkansas Statutes, defines an employee as follows:
“Employee means any person ... in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied . . .”
It early was held that in determining whether one is an employee or an independent contractor, the Workmen’s Compensation Act is to be given a liberal construction in favor of the workman, any doubt is to be resolved in favor of his status as an employee, rather than an independent contractor. Irvan v. Bounds, 205 Ark. 752, 170 S. W. 2d 674; Parker Stave Company v. Hines, 209 Ark. 438, 190 S. W. 2d 620; Wren v. D. F. Jones Construction Co., 210 Ark. 40, 194 S. W. 2d 896; Farrell-Cooper Lumber Company v. Mason, 216 Ark. 797, 227 S. W. 2d 445; and Feazell v. Summers, 218 Ark. 136, 234 S. W. 2d 765.
This Court in Parker Stave Company v. Hines, supra, specified these indicia for determining whether a person employed to do certain work was an independent contractor or a servant: (a) control over the work which is reserved by the employer, (b) tbe time for which the workman is employed, (c) the right to terminate the employment without liability, (d) the method of payment, whether by time, job, piece or other unit of measurement, and (f) the obligation to furnish necessary tools and equipment.
This Court has consistently stated that in testing the sufficiency of evidence the testimony must be weighed in its strongest light in favor of the Commission’s findings, and if there is any substantial evidence to support them, such findings will be affirmed. The Commission acts as a trier of facts, and on appeal its findings are entitled to the force and effect of a jury verdict. See: Reynolds Metals Company v. Robbins, 231 Ark. 158, 328 S. W. 2d 489.
Following these rules, without detailing the evidence here, suffice it to say we find from a careful examination of the record that there is some substantial evidence, though extremely close, from which the Commission could have concluded that the tests as set out in Parker Stave Company v. Hines, supra, were met.
Affirmed. | [
84,
106,
-36,
-100,
24,
-32,
10,
26,
83,
33,
103,
82,
-17,
-122,
73,
105,
-29,
13,
81,
43,
-9,
-77,
83,
-18,
-46,
-77,
121,
-57,
-104,
74,
-28,
86,
76,
48,
-118,
-43,
-29,
64,
-51,
84,
-54,
4,
27,
-7,
89,
81,
56,
46,
116,
31,
17,
-98,
-5,
40,
16,
-61,
108,
58,
127,
-86,
81,
-79,
-126,
-115,
95,
20,
-95,
4,
-100,
13,
88,
29,
-104,
49,
0,
-56,
114,
-90,
-62,
68,
97,
-103,
8,
98,
99,
34,
-107,
-25,
120,
-104,
6,
-66,
-99,
-91,
-72,
57,
91,
-55,
-106,
-100,
122,
-108,
6,
110,
-14,
-43,
93,
44,
-125,
-113,
-12,
-78,
-81,
96,
-108,
-101,
-21,
-125,
18,
117,
-34,
-94,
93,
103,
115,
-101,
-121,
-112
] |
Sam Robinson, Associate Justice.
Appellee, Hall, filed this suit against appellant, Burns, seeking judgment in the sum of $771.37 on an account. An itemized statement of the account was attached to the verified complaint, made a part thereof, and marked Exhibit “A”. The itemized statement shows the date of sale, the sale price, the nature of the item sold, such as dairy feed, hay, calf starter, etc. Hall demurred to the complaint stating as grounds for the demurrer that the complaint does not state facts sufficient to constitute a cause of action and that the exhibit to the complaint is not properly itemized and verified. Appellee filed an additional itemized statement showing a debt totaling the same as Exhibit “A” attached to the original complaint; however, there were some slight changes in the listed items which may have been necessary because of typographical errors.
The demurrer was overruled by the trial Court, but was treated as a motion to make the complaint more definite and certain. As such, the motion was granted and appellee was ordered to make the complaint more definite and certain within fifteen days. Appellant objected to the overruling of the demurrer. He elected to stand on it and declined to plead further. Thereupon the Court rendered judgment for Hall for the amount of the itemized statement of the account. Burns has appealed to this Court.
First, appellant argues that the account is not properly itemized and cites as authority to sustain his contention in that respect the case of Griffin v. Young, 225 Ark. 813, 286 S. W. 2d 468. In that case it was held that a similar statement of account was subject to a motion to make the complaint more definite and certain and the judgment was reversed because the trial Court overruled a motion to that effect. The Griffin case does not suggest that the complaint was demurrable. Likewise in the case of Brooks v. International Shoe Co., 132 Ark. 386, 200 S. W. 1027, cited by appellant, it was held that the trial Court erred in overruling a motion to make the complaint more specific, but nothing is said in that case indicating that the complaint did not state a cause of action.
Appellant also contends that the itemized statement of account is not verified. In his verification of the complaint Hall states: ‘ ‘ Comes the plaintiff herein, Lonzo Hall, after being duly sworn, on oath states that he has read the foregoing complaint and the statement of account, marked Exhibit “A”, and attached hereto, and it is true and correct to the best of his knowledge and belief.” The affidavit was made before a notary public and was a sufficient verification of the account.
In Clarke v. John Wanamaker, 184 Ark. 73, 40 S. W. 2d 784, there was a default judgment for the plaintiff in a suit on an account for merchandise sold. There, the Court held that an affidavit, duly certified and sworn to before a notary public, substantially the same as the affidavit to the complaint in the case at bar, was a sufficient verification of the account. The Court further said: “The effect of § 4200 of Crawford & Moses’ Digest [Ark. Stats. 28-202] is to make a verified account, when undenied, prima facie proof of its correctness. The defendant did not deny the correctness of the account by affidavit or by verified answer. She did not offer any testimony whatever, but contented herself with demurring to the complaint. By virtue of the statute above quoted, the account verified by the affidavit of the agent of the plaintiff was evidence of its correctness, and, not having been attempted to be contradicted by the defendant, warranted a judgment in favor of the plaintiff.”
Affirmed. | [
-74,
124,
-24,
-35,
8,
32,
40,
-118,
97,
-127,
103,
83,
-23,
-61,
-108,
123,
-9,
109,
81,
104,
70,
-77,
35,
-30,
-14,
-109,
-23,
-43,
53,
106,
-92,
92,
76,
52,
-54,
-43,
98,
-118,
-31,
28,
-54,
12,
56,
-55,
-7,
64,
48,
63,
22,
79,
53,
-122,
-5,
44,
30,
67,
105,
44,
105,
121,
-48,
-8,
-125,
15,
63,
18,
51,
39,
-66,
5,
-40,
10,
-112,
57,
16,
-87,
115,
-74,
-126,
52,
43,
-103,
8,
118,
98,
-93,
13,
-25,
24,
-104,
47,
95,
-97,
-90,
-110,
88,
75,
41,
-74,
-100,
125,
16,
-90,
126,
-10,
85,
29,
44,
19,
-50,
-106,
-77,
-113,
116,
-100,
75,
-25,
-102,
-128,
81,
-51,
-94,
92,
79,
60,
-101,
-58,
-6
] |
Neill Bohlinger, Associate Justice.
The parties appellant are the owners of certain lands in Woodruff County and the appellee is the county judge and ex officio road commissioner of Woodruff County.
The appellants filed in the Woodruff Chancery Court their petition for an injunction to restrain the appellee from trespassing, entering upon, or taking for public use a roadway on their property.
The appellants state, in their petition, that the condemnation of a right-of-way on their lands would be capricious, arbitrary, and an abuse of discretion on the part of the appellee as the area involved is actively served at all points by county roads that have existed for many years and that all residents that would be served by a new road are now served by existing county roads. They further allege that the financial status of Woodruff County is such that the county lacked the ability to compensate them for damages they would sustain should this county road be established. They prayed a temporary injunction against the appellee from entering on their property until an order condemning the road had been entered on the records of Woodruff County and until the claims for damages had been adjudicated in accordance with their rights under the Constitution of the State of Arkansas.
A hearing was had before the chancellor who denied the petition for the restraining order and from that denial comes this appeal.
The appellants first allege that the condemnation of the right-of-way across their land would be capricious, arbitrary and an abuse of discretion on the part of the appellee, and that the locality is at present adequately being served by existing county roads. Article 7, § 28 of the Constitution of Arkansas places the exclusive and original jurisdiction of all matters relating to county roads in the county court. Assuming, but not deciding, that the question of capriciousness, arbitrary action, or abuse of discretion might be raised in other proceedings, it is, nevertheless, not before us here as there has been no order of taking.
Appellants’ Point No. 2 raises the question as to whether or not the refusal of the chancery court to grant the injunction prayed for would result in the taking of appellants’ property without just compensation and Point No. 3 raises the question as to the financial ability of Woodruff County to pay for appellants’ land when taken.
From the record before us it does not appear that there has been entered in the records of the Woodruff County Court any order designating the route of the proposed road, the extent of the taking of the appellants’ property, nor the damages that would flow from such taking and no claim has been filed by the appellants with the county court. In this connection the case of Justice v. Greene County, 191 Ark. 252, 85 S. W. 2d 728, is pertinent.
‘ ‘ * * * The statute under which it was taken provides that his damages may be paid out of the general revenue of the county or out of the road and bridge fund. Proof that these funds had been exhausted for the fiscal year of 1934 would and could not prevent him from ultimately collecting his damages out of these or other available funds. Pie was given until June 7, 1935, to file his claim, and it follows that he would have such further time as necessary to litigate and establish it. For aught that appears in this record, he has not filed a claim, much less established it. Until these two things are done, it is not necessary for the county, in arranging its budget, to include therein his unestablished claim. It may be that his betterments equaled or exceeded his damages. In other words, he may not recover a judgment for any substantial amount. It would have been impossible at the time the land was taken or judgment rendered for the court to determine the amount of damages, and set aside any particular sum and segregate it from either fund to pay his damages. In taking the right-of-way, the county pledged its good faith and credit to pay appellant for it, but not necessarily out of the revenues collected in the fiscal year of 1934. It will be time enough for the county to include in its budget the amount of damages when, and if, appellant recovers a judgment.”
This case should be read with the case of Miller County v. Beasley, 203 Ark. 370, 156 S. W. 2d 791, as both of these cases are applicable to the facts here presented.
“It is our view that the act of taking is not complete when the judgment of condemnation is rendered. Since such judgment may be without notice, the lawmaking body must have had in mind an order of condemnation followed by entry upon the land. Such entry, being physical and visible, affords the proprietor an opportunity to exact payment or to require a guaranteeing deposit. If there is neither payment nor deposit, resort may he had to injunction; but should the proprietor stand by and. permit the land to be occupied and the immrovement to' proceed until substantial road work has been done, he is-then relegated to the county’s credit. The demand is against revenues for the year possession was taken, and. all of the restrictions of Amendment No. 10 attach.”' [Emphasis added]
In the instant case, as in the Justice Case, supra,. there has been no filing of a claim because in this case' there is no way in which the appellants can arrive at the' extent of their damage, nor can that be done until an. order has been entered by the county court from which the appellants can determine the amount of their property which it is proposed to take and evaluate that taking, with their severance damages, drainage damage, and all of those elements which must be' considered in arriving at damages when private property is being taken for public use. As we said in the Justice case, until these things- are done, it is not necessary for the county, in arriving at its budget, to include therein unestablished claims.
The appellants state, however, that they are apprehensive that the county judge might surreptitiously move upon their lands and perform a great deal of work and damage their property before they could reach the ear of chancery. We do not think that fear is well grounded. If the county judge moved upon the lands of appellants in the manner contemplated in the hypothetical case which appellants present in their brief, his entry could of course be enjoined and damages would be assessed for any wrong that had been done by the entry. It is difficult to indulge the presumption that the county judge would expend a large sum of the public money in doing' :a piece of work which he would be enjoined from completing and which the public could not enjoy until the right-of-way damages had been paid or secured. Appellants' apprehension seems to be bottomed on some general discussion by the county judge as to the advisability of the road and we take note of the fact that if the landowner remains quiescent and permits the work to be completed on his land, he relegates himself merely to the status of a claimant on the county revenues. He must move promptly to protect his rights, but his alacrity must be bottomed on something more substantial than general conversation before a cause of action has accrued. As is said in 1 Am. Jur. 2d, Actions, § 90:
“* * * On the other hand, an action cannot be maintained if it is commenced before the accrual of the cause of action which is sought to be enforced.” [Citing Sullivan v. Arkansas Valley Bank, 176 Ark. 278, 2 S. W. 2d 1096, 57 A.L. R. 296].
The chancellor found that the action was premature and with that finding we agree. The cause is, therefore, affirmed. | [
85,
-20,
-48,
-4,
11,
-64,
24,
-126,
113,
-93,
-91,
83,
-81,
-64,
20,
115,
-13,
-5,
101,
105,
69,
-78,
87,
-32,
80,
-13,
-37,
-57,
-79,
-55,
-12,
-106,
76,
33,
-54,
-43,
71,
-54,
-51,
-36,
78,
0,
-119,
125,
-47,
67,
48,
43,
22,
79,
117,
-67,
-29,
44,
56,
-61,
73,
44,
91,
45,
-103,
-70,
-100,
4,
124,
5,
-95,
-90,
-88,
3,
72,
122,
-112,
49,
3,
-8,
115,
-94,
-106,
116,
79,
-101,
8,
-76,
99,
33,
44,
-17,
-88,
-119,
6,
-6,
13,
-90,
-126,
25,
99,
3,
-106,
-107,
116,
18,
71,
122,
-17,
13,
29,
124,
-115,
-22,
-44,
-75,
-121,
-4,
-104,
1,
-21,
13,
16,
81,
-49,
-10,
87,
71,
48,
-37,
14,
-111
] |
Neill Bohlinger, Associate Justice.
The appellant is an insurance company which issued its policy of insurance to the Bon Ton Cleaners in Springdale under which it insured the Bon Ton and its customers for loss or damage by fire, as well as other hazards, on all kinds of lawful goods and articles accepted by the Bon Ton Cleaners for cleaning, renovating, pressing, repairing or dyeing while such property was on the premises of the insured Bon Ton. The policy did not insure against loss of or damage to goods held on storage.
The appellee, Mrs. Albano Maestri hereinafter referred to as appellee, resides at Tontitown in Washington County and had been a customer of the Bon Ton for several years.
Sometime during the month of April, or May, of 1957, the appellee delivered to the Bon Ton route man certain items of fall and winter clothing and instructed the route man that the clothing was to be cleaned, put in moth-proof bags and held until called for. In the month of July, 1957, a fire occurred on the premises of the Bon Ton Cleaners in Springdale and appellee’s clothing, which was in the custody of Bon Ton Cleaners, was destroyed or damaged in the amount of $230.60 for which amount suit was brought against the appellant At the conclusion of the testimony presented in the trial of this case in the Washington Circuit Court, a verdict was directed for the appellee in the sum of $230.60 plus penalty and attorney’s fee in the sum of $300.00 against appellant, from which comes this appeal.
The point to be determined here is whether or not the clothing belonging to appellee was entrusted to the Bon Ton Cleaners for “cleaning, renovating, pressing, repairing or dyeing,” or was it on the premises of Bon Ton for storage. If it was in the hands of Bon Ton for storage it was not covered by the policy sued on. There is testimony in the record that the regular custom between Bon Ton and its customers at Tontitown was for its route man to pick up the clothes to be processed and return them the following trip unless picked up sooner by the owners. The clothing which the appellee delivered to the Bon Ton route man in April or May, 1957, was fall and winter clothing. The testimony of Mrs. Maestri in regard to her intention in delivering the clothes to the cleaner is clear. The clothing was fall and winter clothing and she did not contemplate the use of the clothing until fall or winter or cooler weather. She told the route man of the Bon Ton to have the clothes cleaned, put in moth-proof bags and held until called for.
In order for the clothing to be considered as held in storage it was not necessary for the owner to state, “I instruct you to hold these clothes on storage.” Webster defines storage as the act of storing or state of being stored. The instruction which Mrs. Maestri gave to the route man constituted a deviation from the custom or accepted usage that had prevailed between the parties heretofore, that is, instead of having the clothing processed and re-delivered to her on the next trip, he was instructed to clean and put in moth-proof bags and keep until called for. Evidence of custom or course of prior dealings between the parties is competent to consider in determining the meaning of the instructions given to the cleaner.
The case of Aetna Insurance Co., Inc. v. Warren, Admx., 231 Ark. 405, 329 S. W. 2d 536, was a case which involved this same insurance policy, the same cleaning and pressing establishment and almost the same identical facts. In that case the court also instructed a verdict against the insurance company and in reversing that cause, this court said:
“It, therefore, appears to us that this vital question, whether Mrs. Harp’s clothes were stored or not stored under the above quoted provisions of the policy and under the evidence as we have summarized it above is one that should be passed upon by a jury. If this were a case in which it could he said that fair minds could reach only one conclusion on the question of whether Mrs. Harp’s clothes were stored or not stored then the trial court would be right in treating the question as a matter of law. We are unable to say that the testimony in this case is that simple and clear and we are, therefore, constrained to conclude that this issue should have been submitted to a jury. It follows from what we have said above that the trial court erred in finding that as a matter of law that Mrs. Harp was entitled to recover for the cost of her clothes.”
We have many times held that a jury question is presented where reasonable minds might reach different conclusions. Grand Lodge A. O. U. W. v. Banister, 80 Ark. 190, 96 S. W. 742; St. Louis I. M. & S. Ry. C v. Coleman, 97 Ark. 438, 135 S. W. 338; D. F. Jones Const. Co., v. Lewis, 193 Ark. 130, 98 S. W. 2d 874; Smith v. Stuart C. Irby Co., 202 Ark. 736, 151 S. W. 2d 996; McGeorge Contracting Company v. Mizell, 216 Ark. 509, 226 S. W. 2d 566; and, Williams v. Cooper, 224 Ark. 317, 273 S. W. 2d 15. There is abundant testimony in this record from which the jury might have determined the value of the clothing and that the clothing involved was delivered to the Bon Ton Cleaners for storage and these issues should have been presented to the jury.
For error of the trial court in directing a verdict for the appellee this cause is reversed and remanded for further proceedings in accord with this opinion. | [
-80,
124,
-40,
-116,
26,
96,
42,
-102,
83,
-95,
-75,
83,
-17,
-60,
-116,
41,
-13,
93,
-63,
106,
-11,
-125,
19,
2,
-46,
-97,
-77,
-59,
-80,
79,
108,
-34,
92,
33,
2,
-35,
-58,
-128,
-59,
-100,
-42,
8,
43,
-27,
-3,
64,
48,
-6,
80,
71,
85,
7,
-77,
47,
-111,
-53,
73,
40,
123,
-79,
-62,
-8,
-86,
69,
125,
22,
-93,
54,
-118,
7,
-40,
12,
-104,
49,
0,
-88,
50,
-90,
-122,
20,
35,
-103,
-116,
100,
101,
-126,
5,
-25,
-88,
-104,
47,
94,
47,
-27,
-112,
89,
59,
35,
-65,
-97,
116,
18,
22,
-50,
-6,
93,
31,
40,
7,
-122,
-44,
-93,
-119,
-32,
-68,
-93,
-34,
-77,
51,
81,
-49,
-96,
92,
70,
113,
95,
94,
-56
] |
Wood, J.,
(after stating the facts). The title to the land in controversy being in appellant, the burden was upen the appellee to prove the allegations of his cross-complaint by a preponderance of the evidence in order to entitle him to the relief sought. This he wholly failed to do. On the contrary, the clear preponderance of the evidence shows that the appellant purchased1 the fifteen acres which she had at the time of their marriage from the State and that she donated the 120 acres, and that she furnished the money to purchase the eighty acres designated in the evidence as the Dollarhide tract. She makes a satisfactory 'explanation as to how she obtained money to acquire this land, and her testimony is corroborated by C. W. Wright and I. B. Wright. She stated that she borrowed part of the money to pay the donation fees from I. B. Wright. I. B. Wright corroborates her in this by stating that he remembered loaning her $10 to donate some land. The appellee himself states that she borrowed the money of I. B. Wright, but that he gave her the money to pay Wright. The appellant denies this, but I. B. Wright corroborates her, for he states that he thought she paid the money back in person.
Appellant shows that she obtained the money to purchase the Dollarhide tract from the sale of her interest in her father’s estate, and she is corroborated in this by C. W. Wright, who states that he bought her interest in the G-illihan land at $100, and he shows that $47 of this was paid on the Dollarhide land, and that the balance was used by the appellee on his personal account. The appellee himself states that he used $50 of the money ob tained from the sale of the appellant’s inheritance on the purchase of the Dollarhide land, but states that he gave his individual note for $75 of the purchase money, which he paid himself; but he does not deny that he used the other $50 on his own account.
So it is established by a clear preponderance of the evidence that the appellant furnished the money to purchase and to donate the land in controversy. The testimony therefore fails to show any resulting trust in favor of the appellee. But, even if appellant had furnished the money, the presumption, by taking the title in his wife’s name, would be that he intended it as a gift, and in that case the proof to overcome this presumption of gift should he clear and convincing. Carpenter v. Gibson, 104 Ark. 32-36; Hall v. Cox, 104 Ark. 305-311; Harbour v. Harbour, 103 Ark. 273-8; Spradling v. Spradling, 101 Ark. 451-6; Wood v. Wood, 100 Ark. 372; Jentzsch v. Jentzsch, 84 Ark. 322; O’Hair v. O’Hair, 76 Ark. 389; Bogy v. Roberts, 48 Ark. 17; Johnson v. Richardson, 44 Ark. 365.
The finding that the appellant executed and delivered to the appellee her deed to an undivided one-half interest in the lands in controversy is not established by a preponderance of the evidence. Because of the marital relation and the dominating influence which a husband has over his wife, it is' a rule in equity to scrutinize with care a transaction where a wife conveys her real estate to her husband. While this is true, such conveyance will not be defeated when it clearly appears that the transaction was free from any undue influence on his part, and where it is clearly shown that the wife intended to make a gift of the property to her husband. Such gifts, when free from coercion or any undue influence, should be sustained; but, in such eases, the burden is on the husband to show that the transaction was fair; when the transaction is free from fraud and undue influence, if the real intention of the wife is to convey to her husband her real property as a gift, such intention must be carried out. Spradling v. Spradling, supra; McDonald v. Smith, 95 Ark. 526; Mathy v. Mathy, 88 Ark. 60; Naler v. Ballew, 81 Ark. 328; Hannaford v. Dowdle, 75 Ark. 127.
These well settled principles, when applied to the facts as to the alleged gift of an undivided one-half of the lands in controversy, do not -sustain appellee’s contention that there was such a gift. The appellant admits that she executed the deed, hut she denies that she delivered the same to the appellee, and as to whether or not there was such a delivery with the intention of making an immediate gift of the undivided half interest in the lands is the only serious question in the case. This is purely an issue of fact, and a correct solution of it depends much upon the credit to be given the testimony of the parties themselves. It could serve no useful purpose to discuss in detail the evidence which has brought us to the conclusion that the greater weight should be given to the testimony of appellant and that the -clear preponderance of the evidence shows that she did not deliver the deed to the appellee for the purpose of making an immediate gift to him of the lands in controversy. The appellant states that she made the deed with the understanding that she was to hold the same as long as she lived, and in case she died without leaving him a child he was to have a half interest in it and was to live with her and support her as long as she lived. She did not deliver the deed to him. The appellee himself corroborates the appellant in her statement as to her intention in making the deed, and that it was not to take effect until her death,, when he says: “I asked her, saying it was time, so that if anything happened to either one of us, our brothers could not step in and take it away from the other, and she thought it was.” In this testimony the appellee shows clearly that the -deed was executed for the purpose of preventing the collateral heirs of the appellant from inheriting the property in the event of her death, for that was the only thing that could have happened to the appellant that would have enabled her brothers to deprive the appellee of possession of the property. Evidently appellee used the words “happen to either of us” as referring to the death of either one of them.
Appellant’s testimony as to her purpose in making the deed is further corroborated by the statement of witness Mrs. Schott, who testified on behalf of appellee, as follows: “She was speaking of her trouble and said she had burned the deed. I asked her, in the first place, why she wanted to burn the deed, and she said she had made it out so that if anything happened to her that her brother would not get it, but that Emery would get it all.” She told witness that she had at that time intended that at her death Mr. Wood should have her property; that her brother should not come in; that it was not her intention to relinquish her interest in the land so that Mr. Wood or any one else would get it until her death.
True, Wood testified that it was always understood between them that he was to have a half interest in their home; that he was to have the half interest for doing the work and -making the improvements and paying the $75 on the Dollarhide tract. In another place he states that he insisted on his wife making the deed because she would take cranky spells and he was afraid she would get mad and go sell the place or the timber off of it as she had once before. But this does not appeal to us as reasonable and 'Consistent in view of the fact that appellee did not have the deed recorded.
Now, appellee stresses the fact that the notary who took the acknowledgment testified that the deed was delivered to appellee, but the notary’s testimony further shows that he had drawn the deed at the request and under the directions of appellee, when the appellant was not present; that he carried the deed to her to sign, and might have explained the nature of it to her; that she signed it and acknowledged it, and that he then delivered the deed to the appellee because it was taken for him, and he delivered it in the presence of the appellant. The testimony of this witness, when considered t(¡>gether, has no significance whatever in de termining the issue as to whether the deed was delivered by the appellant to the appellee for the purpose of conveying immediate title. His testimony showed that the deed was not delivered to the appellee at the instance and direction of the appellant at all, but that he was acting for the appellee in handing him the deed, and that the mere act of handing or delivering the deed to the appellee was not at appellant’s request or suggestion or as her agent, and could not be considered as her act constituting a legal delivery for the purpose of transferring the immediate title to the property; and when appellant, in her testimony, denies that she delivered the deed to the appellee, she manifestly used the word ‘ ‘ delivered” in the sense that she did not intend to give him the possession of the deed for the purpose of conveying to him the present 'title to the property and of giving present dominion and control over the same. The testimony of the appellant all the way through is consistent and reasonable. The testimony of the appellee was contradictory in itself and contradicted by other witnesses, and is inconsistent. The testimony of the appellant was entitled to more credit. Her testimony, in many particulars, was substantially corroborated. Therefore, her testimony as to the purpose for which the deed was executed and on the issue as to the delivery thereof should be taken as the true state of the case. The chancery court erred in not so accepting it.
The decree is therefore reversed and the cause remanded with directions to dismiss appellee’s cross-complaint for want of equity. | [
85,
110,
-24,
-81,
8,
-96,
42,
-118,
81,
-125,
-91,
-45,
-17,
-54,
16,
41,
-30,
93,
81,
106,
-41,
-77,
55,
99,
-14,
-77,
-7,
-35,
-79,
76,
-28,
85,
76,
48,
-64,
-43,
98,
-118,
-25,
80,
14,
-114,
-117,
72,
-39,
-32,
52,
-25,
90,
73,
113,
-98,
-77,
40,
21,
71,
104,
46,
111,
57,
80,
120,
-85,
4,
95,
14,
-79,
102,
-68,
9,
-54,
42,
-112,
-79,
1,
-56,
123,
-74,
6,
116,
77,
-119,
9,
102,
98,
33,
108,
-17,
-80,
-104,
46,
126,
29,
-89,
-48,
72,
67,
105,
-84,
-100,
101,
-112,
38,
126,
-8,
77,
28,
108,
43,
-113,
-42,
-127,
-115,
60,
-104,
18,
-25,
-111,
16,
80,
-49,
-94,
92,
101,
56,
-101,
-113,
-29
] |
Hart, J.,
(after stating the facts). Section 9, article 12, of the Constitution of 1874, provides that, “No property nor right-of-way shall be appropriated to the use of any corporation until full compensation therefor ■shall be first made to the owner in money, or first -secured to him by a deposit of money,” etc.
Section 2955 of Kirby’s Digest provides that where the determination of questions in controversy in condemnation proceedings is likely to retard the progress of the work the court, or judge in vacation, shall designate the amount of money to be deposited by such company, subject to the order of the court, and for the purpose of making such compensation, when the amount thereof shall have been assessed, and that the judge shall designate the place of such deposit.
Section 2956 of Kirby’s Digest provides that when such deposits shall have -been made in compliance with the order of the court or judge, it shall be lawful for the railroad company to enter upon the land and proceed with its work.
In construing this section of the Constitution and the section of the statutes above referred to, in the case of Reynolds v. Railway Company, 59 Ark. 171, the court said:
“The Constitution and .statute are unambigous. The purpose for which the deposit is required is apparent. By making the deposit the railroad company merely acquires the right to enter upon the land and proceed with its work pending an assessment of the damages. Its right to the property is not complete until the damages have been paid. The deposit is not made for the owner of the land, but, to the order of the court, to secure to him the payment of such damages as may be .awarded by the jury.”
In the case of Reynolds, Ex parte, 52 Ark. 330, the court, in regard to the section of the Constitution and sections of the statutes above referred to, said:
“The requirement that a deposit of money shall be made to secure the payment of compensation to the land owner presupposes that the time is not ripe for payment, else no provision for security would he needed.
‘ ‘ It has been suggested that the clause means only a deposit of the assessment made by a jury in a condemnation proceeding as a provision for cases where the owner may refuse to accept the amount awarded as payment, or may be unknown, or not sui juris. It certainly covers these contingencies, and might easily have been restricted to them if it had been so intended. But the language employed does not restrict the meaning to such cases; it is general — compensation must be paid or secured in every case y and, pending proceedings to condemn, it is for the Legislature to determine when the deposit by way of security may be made.”
See, also, Kansas City Southern Railway Company v. Boles, 88 Ark. 533.
Thus it will be seen that the preliminary deposit is made subject to the order of the court and remains on deposit las security to the1 land owner for the compensation that may be finally awarded him. On the final hearing of the case the award may be increased and so the preliminary deposit may be insufficient to meet the award, and it would be necessary for the railroad company to pay an additional amount. On the other hand, the final award may be for a smaller sum than the amount deposited, and in that event the court would order a return of the excess to the railroad company. So, also, as was the fact in the case of Reynolds v. Railway Company, supra, the railway company might abandon its proposed route before entering upon the land and before any damage was done to the land owner, in which event it could file a motion for leave to dismiss its condemnation proceeding, and the couit would order the amount of the preliminary deposit returned to it.
In the case before us the preliminary deposit of $2,000 was placed in a bank subject to the order of the circuit court, and none of the parties to the proceeding had a right to withdraw that deposit without an order of the court. The final judgment in the case provided that the amount deposited in the court should be paid over to the defendants or to such one or inore of them as should establish his or their right to receive the same. This judgment contemplated further action on the part of the court before the money should be turned over to any of the defendants. It is not contended now by counsel for the plaintiff that the amount recovered on the final hearing of the cause was too small. On the other hand, it is conceded that the proof shows that that amount was the full value which should have been recovered as compensation for the land taken and damage done by the railway company. The only contention made by counsel for the plaintiff is that the railroad company should have paid the money to the legal guardian of Ella Hare. It will be noted, however, that the railroad company did not pay the money to any of the defendants, and as far as the record discloses, it had nothing whatever to do' with the money being paid by the bank to Matt Grey as administrator of the estate of Mary Hare, who was the mother of Ella Hare.
As we have already seen, the final judgment of the court contemplated that further proceedings should be had before the money deposited should be paid to any one. Matt Grey, as administrator of the estate of Mary Hare, deceased, drew a check on the bank in favor of himself for the amount of the preliminary deposit and that was paid to him. So far as the record shows, this was without the consent of the railroad company, -and without any action on its part in that behalf. The -amount so deposited was placed in the bank subject to the orders of the circuit court as security to the land owner for whatever sum might finally be awarded -him as compensation for the land appropriated by the railroad comp'any for its right-of-way. The railroad company had no further control over the money, and, having taken no part whatever in transferring the funds from the bank to Matt Grey, it is not liable to the plaintiff, Ella Hare, therefor.
A different question arises as to the $1,000. That amount of money was paid by the railroad to Matt Grey. It follows from our decision on tbe former appeal that he was not entitled to receive it, and that it should have been paid to the guardian of Ella Hare.
It also follows that the judgment of the circuit court will be modified, and the cause of action of the plaintiff for the $2,000, the amount of the preliminary deposit, will be dismissed here; and the judgment of the circuit court for $1,000 arid interest will be affirmed. | [
-14,
-6,
-40,
-4,
-86,
96,
58,
-104,
65,
-31,
33,
19,
111,
-38,
-112,
51,
-9,
107,
-12,
123,
-44,
-93,
71,
-61,
-14,
-109,
-47,
-57,
55,
-51,
-20,
87,
76,
50,
-54,
-11,
102,
-30,
65,
-44,
14,
-115,
-86,
65,
-15,
104,
48,
10,
70,
79,
113,
-33,
99,
36,
24,
71,
73,
47,
79,
45,
-64,
-71,
-66,
-59,
127,
5,
-95,
38,
-103,
35,
-24,
12,
24,
53,
1,
-24,
115,
-74,
-106,
-42,
73,
27,
-120,
98,
99,
16,
101,
111,
28,
-104,
14,
-46,
15,
-121,
-112,
73,
11,
47,
-73,
-99,
116,
4,
102,
126,
-18,
21,
93,
108,
3,
-49,
-10,
-93,
-115,
108,
-98,
71,
-49,
-95,
48,
97,
-50,
-78,
95,
71,
124,
27,
-113,
-67
] |
Smith, J.,
(after stating the facts). It is insisted, in effect, that if there was any error in refusing the instruction numbered 2, that error was cured by the verdict of the jury. That this is true, because appellant testified that her husband had complete and unlimited control over the business of Morris & Company, and that she was, therefore, bound by his action in signing the notes. But however complete t¿e control of L. A. Morris over the business of Morris & Company may have been; there still remains the question of his right to bind her beyond the extent of the business which she was permitting him to manage. His right to bind her by the execution of notes would not arise out of the marital relation, and .could exist at all only by reason of authority expressly conferred, or necessarily implied, under an agency for her, and he would have no greater authority to bind her than any other agent having similar .authority would have had. And the rule as to any agent is that “an agent having general authority to manage his principal’s business, has, by virtue of his employment, no implied authority to bind his principal by making, accepting or endorsing negotiable paper. Such an authority must be expressly conferred or be necessarily implied from the peculiar circumstances of each particular case. It may undoubtedly be conferred and by implication, but it will not be presumed from the jnere appointment as general agent.” Mechera on Agency, § 398. See, also, 1 Am. & Eng. Enc. of Law, (2 ed), p. 1025; 31 Cyc. 1381, and.oases there cited.
In determining the extent of 'the authority ef L. A. Morris, the jury would have the right to consider the relationship between him and appellant, in connection with all other circumstances in proof; but the jury would have no right to infer this authority because of the marital relation. Hoffman v. McFadden, 56 Ark. 217.
For the error in refusing to give instruction No. 2, the judgment will be reversed and the'cause remanded for a new trial. | [
-112,
-8,
-24,
-33,
90,
96,
-86,
-104,
-92,
-63,
-89,
115,
-17,
-38,
29,
127,
49,
111,
81,
43,
-43,
-77,
39,
65,
-10,
-13,
-45,
-35,
-75,
93,
-9,
-1,
77,
48,
-54,
-43,
102,
67,
-59,
80,
-122,
5,
11,
-28,
-7,
-110,
48,
43,
92,
79,
113,
-98,
-13,
42,
57,
87,
-83,
44,
106,
101,
-40,
-80,
-101,
-52,
79,
20,
-79,
37,
-98,
45,
-40,
38,
16,
49,
1,
-8,
51,
-106,
71,
84,
111,
43,
24,
98,
122,
-128,
77,
-17,
-104,
-104,
47,
110,
-99,
-89,
-48,
88,
73,
105,
-73,
-35,
77,
20,
-122,
-14,
-58,
29,
25,
100,
8,
-117,
-42,
-111,
93,
122,
-104,
9,
-21,
-125,
-79,
81,
-37,
-88,
93,
64,
123,
-101,
-114,
-80
] |
McCulloch, C. J.
This -is an action against the railway company to recover damages for personal injuries alleged to have been sustained by plaintiff’s intestate while working in the shops of defendant in Argenta. Deceased, William Middleton, was a machinist, and while working at one of the machines in the shop, handling a heavy metal appliance of a locomotive engine which he was repairing, it fell on his hand and mashed the flesh from one of'his fingers. Blood poisoning resulted from the injury and the injured man died from the effects. The-piece of machinery he was working on was a part of an engine used by the railway company in interstate commerce and the action is -based upon the Federal statute ■which, provides for compensation for employees of common carriers who are injured while engaged in interstate commerce. Appellant concedes that under the facts of the case the deceased was employed in interstate commerce, and that if there is any liability at all it falls within the terms of the Federal, statute.
Deceased was an experienced machinist, having served an apprenticeship of several years, and when he received his injury had been working in the shops as a fully equipped machinist for six or eight months. He worked under a foreman of the department named Harris and was accustomed to working at any machine to which he was assigned. He had worked at the particular machine where he was injured several times before this occasion. The machine he was working at was a thirty-six inch turning lathe, and he was engaged in boring a 'heavy metal appliance called the rod brass of an engine. The appliance weighed from 100 to 125 pounds and was placed in the lathe for the purpose of boring a hole in it to fit the pin, and facing off the side. It was held in place in the lathe by three jaws, which were tightened up by means of a screw and nut. The job was what was termed a rush order, which we understand to mean that it was work to be done not necessarily with special haste but that it was .to have precedence over other work. Another man was on the job and .had placed the brass in the lathe, when he was called off and Middleton was assigned to complete the job: He went to work at it and worked there for a period of time, when he completed one side of it, and it became necessary to loosen up the jaws, remove the brass from the lathe, and turn it round and put it back in the lathe so as to face the other side. He removed it from the lathe and while attempting to put it back, after having turned it round, it slipped out of the jaws and when it fell ho the platform on which the machine rested it struck one of 'his fingers and mashed off some of the flesh. The only witness who stood near Middleton and was able to describe the way in which the injury occurred, says that Middleton had taken out the brass and .turned -it aronnd and put it back in position, and was holding it there in place with one hand while attempting to screw down the nut .so as to tighten the jaws with his other hand, and the-brass appeared to slip out of the jaws and fall.
There are three allegations of negligence in the complaint; one that the employer-failed to- furnish sufficient helpers to the mechanics, and particularly that no helper was furnished to Middleton to aid him in handling the brass; next, that the jaws of the lathe were permitted to become worn .smooth so that they would not hold the piece of brass, but would allow the same to slip out; and third, that shavings of dirt were allowed tbo acieumulate around thé screw with which the jaws of the lathe were tightened, so -that when Middleton attempted to screw down the nut it would not work and tighten'the jaws, and that Middleton was thus misled into believing that the nut had gone down far enough to tighten the jaws, whereas it had been retarded and stopped by the dirt and metal shavings around the screw. The plaintiff was awarded damages by the verdict of “the jury, and the defendant has appealed. The case was submitted to the jury on an instruction with respect to the acts of negligence named in the -complaint in failing ito furnish sufficient help, and also in failing to -exercise care in furnishing a safe place to work, in that the jaws were allowed to get smooth and out of repair, and that the shavings and dirt were allowed to accumulate around the screw.
It is insisted by -counsel for defendant that according to the undisputed evidence there was no negligence of the employer in any of the particulars named, and that even if there was, Middleton assumed ‘the risk of the danger. Inasmuch as the -court, over the objection of the appellant, submitted to the jury for consideration all of the alleged acts of negligence, if it be found that testimony was, wanting with respect to any of them then the error of the count was prejudicial -and calls for a reversal of the case, for we have no means of determin ing which, one of the acts of negligence the verdict of the jury was based upon.
After a careful analysis of the testimony in the case, we are of the opinion that there was no evidence to warrant a submission of the alleged act of negligence of the employer in failing to furnish a helper, and that the court erred in submitting that issue to the jury. We are also of the opinion that even if there had been evidence on that issue, the deceased assumed the risk of the danger and can not recover. The testimony is conflicting as to the number of helpers furnished in'that department, and whether the number furnished was sufficient, but we do not regard that point as material. In doing the work assigned to him on this particular occasion, Middleton did not need help except when it came time for him to shift the brass piece in the lathe. He worked on it for a considerable time, boring the hole for the pin and facing the surface of the brass, and when it became necessary to change it he needed help to lift it out of the lathe and put it back. It was not necessary nor, according to the testimony, was it usual, for a helper to stand in waiting when not needed, and from this state of facts it necessarily follows that it was the duty of Middleton to seek help or call on his foreman for it when he needed it. The testimony disclosed no. competent eviden'ce to establish the fact that he called on the foreman for any help. The only testimony on the subject is that of two witnesses, one of whom was a brother of Middleton, who was also a machinist in the shop; and these witnesses testified, over the objection of defendant’s counsel, 'that Middleton spoke to his brother about needing help' and that his brother told 'him to 'go to see Harris, the foreman, about it, and that they ('the witnesses) saw him go over to Harris in another part of the room, but they could not hear what was said between the two. Harris denied that deceased had any conversation with him at all about help. The plaintiff sought to discredit the testimony of Harris by showing .contradictory statements, but if it be conceded that Harris’ 'testimony was so discredited that the jury had the right to disregard it, the record is still left without any affirmative testimony to the effect that deceased ever called upon Harris for help or communiealted to him the necessity for the services of a helper at that time. It is purely a matter of conjecture, too vague to base a verdict upon, that deceased, when he went across the room, made request of Harris for help. If the statements of deceased 'to his brother are admissible for any purpose, they are certainly not admissible to establish the independent fact that he called upon Harris for help. In addition to that, we are, as before stated, convinced that under the law if deceased called upon Harris for help, which was denied, he assumed the risk by proceeding with the work of lifting the metal piece out of the lathe. It must be remembered that he was a skilled workman and had worked several times at this particular machine. He knew the weight of the metal piece and he knew his own strength and capacity for handling it. Those matters were entirely within his own knowledge, more so than within the knowledge of the foreman. He was not, according to the testimony, compelled to proceed with his work, but had the right to wait for a helper when he needed one. Therefore, if he was refused help and proceeded with the work of attempting to handle the heavy piece of metal without help, he assumed the risk himself and could not complain. That he appreciated the danger of handling the heavy piece of metal by his own effort, and without help, is too plain for controversy. This, of course, leaves out of the question the act of negligence of the master in permitting the lathe to get out of repair and become unfit for reasonably safe use in doing that work. Of' course, if there was negligence ¡in that respect, it presents another phase of the case upon which a recovery may be based. But so far as the mere failure to furnish help in lifting the piece out of the lathe, deceased assumed the risk by attempting to proceed without the .assistance of a helper. This is so because, as we have already said, he was a skilled machinist, was fully advised as to the size and weight of the piece to be removed, and knew of his own strength and capacity to handle it.
So far as the issue concerning the alleged act of negligence of 'the master in allowing the jaws of the lathe to become smooth so that the heavy piece of metal was likely to slip while the .screws were being drawn, we think there was sufficient evidence to warrant a submission to the jury, both as to the act of negligence and the question as to assumption of risk. Witnesses testified that the jaws were made with a rough surface, having ridges so that heavy pieces of metal would not slip while being put into the lathe or taken out, and that the jaws had become smooth. Middleton and the other machinists were shifted about frequently from one machine to another and it was not the duty’ of each of them to see that every machine in the shop, or any one of them so far as that is concerned, was kept in repair. As a matter of fact, the testimony shows that Middleton did not work regularly at this machine, but that there was another man who worked regularly there, Middleton only being substituted occasionally. When he was called to finish up the job at this machine, the piece of metal was already in the lathe and he had no opportunity at that time to discover whether or not the jaws of the lathe were in reasonably safe condition. It is true he might have examined and discovered the condition when he lifted the piece out of the lathe, but he was not bound to inspect the machine, but was only held to ordinary care to take notice of obvious dangers. And it was a question for the jury to determine whether he was guilty of contributory negligence in proceeding with his work without discovering the condition of the jaws, or whether he assumed the risk by proceeding after he discovered their condition. We can not say as a matter of law that the danger from proceeding with the work was so obvious that Middleton is deemed to have assumed the risk even if he did observe the condition of the appliance. We are of the opinion, therefore, that that question presents an issue for submission to the jury.
It is not so olear that the allegation of negligence with respect to allowing to become clogged the screws which were used in tightening the jaws of the lathe is supported by evidence sufficient to .warrant its submission to the jury. There is sufficient evidence, it is true, that the screws were clogged up with metal shavings which probably prevented the tightening of the jaws, but it appears from the testimony of witnesses, as we interpret it, that it is the duty of the machinist while operating the machine to see to freeing the screws from such obstacles, inasmuch as the screws were liable to be dogged up at any time by the shavings falling from the metal as the work proceeded. The testimony is that it was customary to strike the lathe heavily with a hammer from time to time so as to jar the shavings out, and cause them to fall from around the screws. Now, if it be true, as that testimony tends to show, that it was the duty of Middleton himself to see that the screws were kept free from such obstacles, then it follows that an act of negligence on the part of the master or fellow-servant can not be predicated upon the presence of such obstacles around the screws. These observations concerning this branch of the case are thrown out for guidance in another trial of the case when this branch of it may be more clearly and definitely explained in the testimony.
For the error of the court in submitting the issue of negligence of the defendant’s foreman in failing to furnish a helper, the judgment is reversed and the cause is remanded for a new trial. | [
-16,
120,
-104,
-99,
42,
106,
42,
26,
81,
-27,
37,
-45,
-49,
-29,
29,
97,
-29,
125,
-15,
43,
117,
-93,
3,
35,
-46,
51,
-31,
-121,
-101,
75,
124,
-10,
77,
32,
10,
85,
-62,
72,
-63,
-100,
-114,
4,
-22,
-22,
57,
64,
48,
122,
-44,
79,
113,
-98,
-5,
34,
20,
-49,
44,
57,
105,
-20,
-47,
113,
-77,
-115,
85,
16,
-96,
6,
-100,
39,
-40,
29,
24,
-107,
0,
-8,
114,
-90,
-127,
-44,
33,
-87,
12,
98,
98,
33,
25,
-81,
104,
-72,
47,
-114,
-99,
-91,
-98,
40,
43,
75,
-97,
-97,
98,
-108,
-122,
124,
-2,
93,
91,
36,
1,
-125,
-76,
-125,
-33,
100,
-36,
-85,
-22,
-105,
54,
116,
-36,
50,
88,
7,
58,
27,
-33,
-106
] |
'Kirby, J.,
(after stating the'facts). It is contended that the court erred in admitting the testimony of the exclamation made by the deceased after he was shot and in giving each of said instructions. Appellant insists that the testimony of Witt Perkinson, admitted over his objections, that deceased exclaimed immediately after he was shot, “Oh! oh! Witt, he shot me for nothing,” was incompetent and highly prejudicial. We do not agree with this contention. The exclamation was part of- the res gestae, and it wtas necessary to make this proof to fully and correctly set out the facts of the killing. 'The exclamation was made by the wounded man ’within ten or. twenty seconds, at most, after ■the shot was fired, and was so close in point of time as to be a part of the transaction, and it would have been difficult to give a connected and correct account of the occurrence without stating all that was said and done concerning it. As said in Childs v. State, 98 Ark. 435, “Under the law, all that occurred at the time and place of the shooting which has reference thereto or connection therewith was part of the res gestae.” Byrd v. State, 69 Ark. 537. ‘‘Res gestae are the surrounding facts of a transaction, explanatory of an act, or showing a motive for ’acting. ’ ’ Carr v. State, 43 Ark. 99. See, also, Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494.
It is next contended that said instructions given by the court deprived the accused of acting upon the appearance to him of danger and authorized the jury to find him guilty,’ unless they believed from the evidence that the killing was necessary to save his own life or to prevent his receiving great bodily harm.
There was no error committed in giving instruction numbered 5 complained of. It did not relate to the question of murder or manslaughter, but excln sively to the question of justification of the homicide, or self-defense, and there is nothing in the testimony indicating that appellant is not a person of ordinary reason and sense. Bruder v. State, 110 Ark. 415; Scoggin v. State, 109 Ark. 515; Hoard v. State, 80. Ark. 87.
Neither are instructions numbered 7 and 9 open to the objection that they precluded the defendant from acting .upon the appearance to him of danger. Nor did the court intend by instruction numbered 10 to tell the jury that the defendant was not permitted to avail of the plea of1 self-defense, unless it appeared to them that the danger was &o pressing and urgent that to save himself from death or great bodily harm the killing of the deceased was necessary. It was the purpose only to tell the jury in this instruction that it must have appeared to the defendant not only that the danger to him at the hands of deceased was imminent, etc., but also that it was so pressing and urgent that to save himself, etc., the killing of the deceased was necessary. Although the instruction says “it must have appeared to the defendant not only that the danger to him was imminent,” but it must also appear, etc., intending only to say, but also or but it must also have appeared “that it was so pressing and urgent,” etc., leaving it to the jury to properly consider defendant’s right to act upon appearances of danger when doing so without fault or carelessness. It was not the intention, however, and the instruction did not require the jury to find that the danger was so pressing and urgent that the defendant was required to .act in order to save himself nor deny him the right to act upon the appearance of danger.
The instructions given for the defendant unmistakably show that such was the court’s direction, and this instruction properly construed is not in conflict with them. The court repeatedly told the jury that the defendant had the right to act under the circumstances as they appeared to him and in instruction numbered 6, after stating that the defendant relied upon the plea of self-defense, “The court instructs you that in determining whether -or not he acted within his rights under the law of self-defense, you may render the question very simple by adopting the rule which the court now instructs you is -the law, as follows:
First. “In so far as is possible, you are to place yourself in the position and under the circumstances surrounding the defendant at the time of the shooting, acting without carelessness on his part, as those circumstances and his position have been disclosed by the evidence, viewing it from the standpoint of the defendant at the time, as you believe from the evidence it appeared to him, you will ask:
(1) “Did it appear to the defendant at the time he fired the fatal shot, acting without carelessness on his part, that he was in danger of losing his life or of receiving great bodily harm at the hands of the defendant ?
(2) “If it did so appear, did the defendant reach the conclusion that he was in danger of losing his life or of receiving great bodily harm at the hands of the deceased after the exercise of such caution and prudence in judging the appearance and circumstances by which be was surrounded as appeared to him to be reasonably consistent with his safety?”
The court told the jury in instruction numbered 8, “You will note that you must place your findings upon what you believe from the evidence the defendant, acting without carelessness on his part, actually thought of the circumstances and appearances iby which he was surrounded at the time. It is not how you think those circumstances and appearances might have affected or impressed you, nor what the defendant might have done,- or ought to have done. The question for you to decide on this issue of self-defense is, wdiat, in good faith, acting under the test the court has given you, the defendant thought he ought to do. It really comes at last to this: Was the defendant really trying to save his own life or to prevent great bodily harm to himself, or did he shoot deceased simply out of malice or revenge? If he shot to save his own life or to prevent great bodily harm to Mmsclf. acting without carelessness on Ms part, as it appeared necessary to Mm under the test above laid down, be is not guilty, and you will acquit Mm.”
The appellant claimed to have killed the deceased in necessary self-defense, and the jury did not give credence to his statement. While it is true that seven of the eight of the charge of buckshot that entered the body and side of the deceased went through Ms hand, lending some weight to defendant’s statement that he shot deceased when he thought he was about to draw a weapon; it is further true that most of the shot ranged upward, and if defendant had been in ten or fifteen feet of the deceased when he shot Mm, and shooting from Ms hip even as he claimed, the range of the 'bullets would doubtless not have been upward and most probably the entire charge would have entered the body of deceased without separating. The testimony would have warranted the conviction of the defendant of the Mgher degree of the offense and the instructions fairly submitted the issues to the jury.
Finding no prejudicial error in the record, the judgment is affirmed. | [
48,
-22,
-104,
31,
43,
96,
42,
-72,
-16,
42,
-32,
115,
109,
-101,
17,
43,
115,
45,
81,
104,
68,
-77,
63,
65,
-14,
-13,
112,
-41,
53,
-52,
-66,
60,
76,
48,
-30,
-43,
102,
74,
-59,
92,
-58,
12,
-87,
-48,
-5,
20,
48,
54,
116,
15,
-79,
-98,
-29,
42,
22,
-61,
-87,
40,
75,
-72,
64,
56,
-54,
-123,
-23,
16,
-77,
38,
-98,
3,
88,
26,
-104,
57,
1,
-24,
113,
-76,
-64,
-44,
105,
9,
4,
98,
99,
32,
93,
105,
-88,
-119,
47,
122,
61,
-89,
26,
64,
75,
13,
-106,
-99,
127,
48,
-114,
118,
-21,
29,
93,
108,
3,
-113,
-108,
-111,
-83,
44,
-98,
-37,
-21,
-121,
20,
49,
-49,
-30,
92,
69,
90,
-101,
-114,
-12
] |
Kirby, J.,
(after stating the facts). It is strongly urged that the court erred in denying appellant’s plea of res adjudicata. It is well settled that a former judgment in order to be a bar must have been a decision of the merits of the cause. In Smith v. McNeal, 109 U. S. 426, the court, quoting from Hughes v. U. S., 4 Wall. 232, said: “In order that a judgment may constitute a bar to another suit it must be rendered in a proceeding be tween the same parties or their privies, and the point of controversy must he the same, in both cases and must be determined on its merits. If the first suit was dismissed for defect in pleadings or parties, or a misconception of the form of the proceeding, or the wiant of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.”
It is contended by appellant that the first complaint to which the demurrer was sustained was only defective and stated a cause of action and that judgment having been rendered against appellant on failure to plead further and no appeal taken therefrom, the same was binding, as an adjudication of all the rights that might have been determined therein.
If the inference m/ay reasonably be drawn from the allegations of the pleadings by a fair intendment that facts sufficient exist to constitute a cause of action or defense, the defect must be corrected by a motion to make more definite and certain and not by demurrer. Johnson v. Mantooth, 108 Ark. 36.
In Arkansas Life Insurance Co. v. American National Ins. Co., 110 Ark. 139, the court said: “In testing the sufficiency of a pleading by general demurrer, every reasonable intendment should be indulged to support it. If the facts stated, together with every reasonable inference therefrom constitute a cause of action, then the demurrer should be overruled.” It was there held that the complaint did not state a cause of action and could not be .amended by a motion to make more specific; that it was not a statement of a cause of action defectively, but a failure to state one at all.
The court quoted with approval in Luttrell v. Reynolds, 63 Ark. 258, from Freeman on Judgments: “If any. court errs in sustaining a demurrer and enter judgment for defendant thereon, when the complaint is sufficient, the judgment is nevertheless on the merits. It is final and conclusive until reversed on appeal.”
In Melton v. St. Louis, I. M. & S. Ry. Co., 99 Ark. 436, this court held that the question of the sufficiency of a cause of action raised by a general .demurrer became an issue of law, and the determination thereof by sustaining the demurrer, was an adjudication and decision by the court by which the merits of the case were determined and plaintiff having elected to stand upon his pleadings and declined .to amend his complaint, the adjudication sustaining the general demurrer became a final determination of the issue of law deciding the merits of the ease and was a final judgment which could .be set aside only upon appeal.”
There were no facts sufficiently alleged in the first complaint relative to the claim of Ella J. Cooper against the estate of the father of the plaintiff as would constitute a cause of action or warrant an adjudication of its validity. It was not stated that she had ever been married to or claimed to be the widow of Jacob H. Cooper, deceased, nor that she was illegally married to him and claimed to be his lawful widow and on that account, entitled to dower and homestead in his estate, but only that she claimed some interest by way of dower and homestead, which claim was not well founded and an averment that she had no interest whatever in said estate; the prayer asking that she be required to set up by answer any claim or right that she may have in the lands and that the same be adjudged void by the court.
The complaint did not state facts sufficient, together with every reasonable inference deducible therefrom, to show that the said Ella J. Cooper was ever married to or claimed to be the wife of Jacob H. Cooper, deceased, and a dower and homestead interest in his lands on that account, and since it stated no cause of action, there was no adjudication of the merits of the controversy by sustaining the demurrer and dismissing the complaint, nor any judgment preventing the maintaining of this suit against her.
The children of appellant’s marriage to Jacob H. Cooper, duly solemnized under the forms of law but void because of his having a former wife'living from whom he had not been divorced .at the time thereof, are protected by law, deemed legitimate and entitled to inherit ¡his estate. Kirby’s Digest, § 2640; Evatt v. Miller, 114 Ark. 84, 169 S. W. 817. But not so the mother who bore them, rand the stress and struggle of life with their father helping to accumulate the estate left at his death, who is not allowed the portion thereof belonging to the widow under the law. Her marriage was illegal, and that fixed her status. Not having been the legal wife of the deceased, she is not entitled to a division of the property which she herself helped to accumulate, notwithstanding it was through no fault of hers that she married the husband of another. Such is the law.
The findings of the chancellor are supported by the testimony and no error was committed in the rendition of the decree, which is affirmed. | [
-80,
-18,
-51,
-66,
8,
96,
34,
-68,
64,
1,
55,
-45,
-19,
-61,
0,
119,
-10,
105,
81,
74,
-34,
-89,
23,
96,
-14,
-109,
-48,
85,
-79,
111,
-10,
124,
76,
48,
-62,
-43,
102,
-54,
-63,
16,
74,
13,
24,
77,
-7,
-120,
48,
91,
84,
15,
49,
-114,
-45,
44,
30,
-49,
-87,
45,
-50,
-67,
-64,
-72,
-98,
13,
61,
16,
49,
116,
-36,
7,
92,
8,
0,
57,
1,
-24,
114,
-74,
2,
-44,
109,
-103,
8,
102,
99,
-96,
33,
-21,
-88,
-120,
39,
62,
31,
-90,
-80,
88,
-53,
41,
-66,
-67,
126,
36,
39,
122,
-29,
85,
-99,
44,
11,
-117,
-106,
-75,
-121,
116,
94,
83,
-18,
-61,
16,
116,
-43,
-28,
92,
5,
19,
91,
-114,
-36
] |
Hart, J..
P. N. Coppedge and Anna Coppedge, his wife, instituted separate actions against the Little Rock Gas & Fuel Company and the Pulaski Gas Light Company to recover damages for injuries sustained by Anna Coppedge on account of the alleged negligence of the defendants. Over the objection of the defendants the cases were consolidated and tried together. The jury returned a verdict for the plaintiff, P. N. Coppedge in the sum of $7,500.00, and in favor of Anna Coppedge in the same sum. Judgments were rendered upon the verdicts and the defendants have appealed.
The cases were ordered consolidated by the court under the act of May 11,1905, which is as follows: “When causes of action of a like nature or relative to the same question, are pending before any of the circuit or chancery courts of this State, the court may make such orders and rules concerning the proceedings therein as may be conformable to the usage of courts for avoiding unnecessary costs or delay in the administnation of justice, and may consolidate said causes when it appears reasonable to do so.” Acts of 1905, page 798.
The action of the court in consolidating the two causes of action is assigned as error by counsel for the defendants. The reason given is that under the fourth subdivision of section 3095 of Kirby’s Digest the husband and wife can not testify for or against each other.
Hence they insist that the action of the court in permitting husband and wife to testify in his or her own case was necessarily prejudicial to the rights of the defendants in the other case. We can not agree with them in this contention.
In the ease of Railway Co. v. Amos, 54 Ark. 159, the opinion in which was rendered before the act in question was passed, a joint action was instituted (by husband and wife against the railway company to recover damages for personal injuries sustained by them by the alleged negligence of the railway company. No objection was made, it is true, to the joinder of the two-causes of action, but objection was made to the plaintiffs testifying in the case. The court said: “But either was a competent witness in his or her own behalf, and the rule is settled by the previous decisions of this court that, in cases in which a party may be a witness for himself, marriage'is not a disqualification as to his interest in the cause, notwithstanding the .other party to the marriage is a party to the suit.”
In the case of St. Louis, I. M. & S. Ry. Co. v. McCullough, 101 Ark. 254, which was decided subsequent to the passage of the act in question, the court held: “Where a husband and wife sued jointly for personal injuries to the wife, the husband was a competent witness in his own behalf, and a general objection to his testimony was insufficient to call attention to the fact that he was incompetent to testify in his wife’s behalf.”
So, it maybe taken as settled by these two decisions that the fact that the husband and wife are joint plaintiffs in an action does not prevent either of them testifying in his or her own case.
In the case of St. Louis, I. M. & S. Ry. Co. v. Raines, 90 Ark. 482, the court held: “1. The'object of the act of May 11, 1905, providing for the consolidation of causes, was to save a repetition of evidence and an unnecessary consumption of time and costs in actions depending upon the same or substantially the same evidence or arising out of the same transactions.”
“2. Where separate actions by husband and wife against the appellant were tried together the husband was competent to testify in his own action, 'and a general objection to his testimony was insufficient to call for an instruction that it was not competent in the wife’s action.”
In the case of St. Louis, I. M. & S. Ry. Co. v. Broomfield, 83 Ark. 288, the -court, in 'considering the act in question, held that it was not necessary that the parties should be identical and -said that the act leaves it to the discretion of the trial .court as to the consolidation of actions of a like nature or relative to the same question pending before the court, without any - reference to the identity of the parties and without restriction as to the causes of action which may be joined in the same suit, so, too, in the case of St. Lo%ñs, 1. M. & S. Ry. Co. v. Harden, 83 Ark. 255, the court held there wias no error in 'consolidating the two cases for the purpose of trial. There, as here, there were separate verdicts -and judgments, and damages were distinct -and separate, but the main issues in the cases were the same.
The causes of action now before us were relative to the same question -and grew out -of the -same alleged act of negligence on the part of the defendants. The court gave the following instruction:
“The -cases of Mrs. Anna Coppedge v. Pulaski Gas Light Company et al., and P. N. Coppedge v. Pulaski Gas Light Company et al., have been consolidated for trial, but remain separate and -distinct is-uits. Under the laws of this State a husband can not testify for or against his wife; nor -can the w-ife testify for or against the husband. The court, therefore, charges you that you will not consider the testimony o'f P. N. 'Coppedge for any purpose in the ease of Mrs. Anna Coppedge v. Pulaski Gas Light Company et al., and you will not consider the testimony of Mrs. Anna Coppedge for any purpose in the case of P. N. Coppedge v. Pulaski Gas Light Company et al.
It will be presumed that the Legislature, when it passed the act in question, had in mind the -statute forbidding husband and wife from testifying for or against each other and it will be noted that no exception was made to the consolidare,n of actions where both husband and wife were parties plaintiff; The only limitation in the statute was that the actions should be of a like nature or relative to the same question, and that in such oases the court might consolidate the causes when it appeared reasonable to do so. We are of the opinion, therefore, that the court did not err in consolidating the two causes for the purpose of trial.
At the time the injury was sustained, P. N. Ooppedge and Anna Ooppedge, his wife, resided at 3215 Bishop street in the city of Little Bock. They had lived at that place about five years. They occupied a four-room cottage and the rooms had doors opening into each other. The defendants supplied them with natural gas and in the dining room the gas was connected with a No. 83 Odin stove which had 'three burners. About 10 o’clock on the evening of December 11, 1912, P. N. Ooppedge returned to his home and found the house dark and the doors locked. He went around the house and heard his wife groaning. He then broke open one of the doors, rushed into the house, and found his two little children lying on the bed dead and his wife lying there unconscious. Mrs. Ooppedge did not regain consciousness until the second morning after this occurred. After she regained consciousness she complained of intense pain throughout her bronchial tubes and in her lungs for about a week. She then suffered severe pains in her legs and her right leg became so diseased that it was necessary to take her to a hospital where, on January 1, 1913, it was amputated just bel'ow the knee. A few days later she has a .similar attack in her left leg which caused her a great deal of pain but she recovered without having to have that leg amputated.
At the trial Mrs. -Ooppedge testified substantially as follows: I am twenty-nine years old. On the 11th day of December, 1912, my husband, after breakfast, left for 'his business down town. There was a fire in the gas stove in the dining room at breakfast time but after breakfast I turned it out. I relighted it about 9:30 or 10 o’clock in the morning that my children, áged five and three years, might play in there. The- stove had three burners and I lighted the two north burners. The children played in the dining room until about 11:30 o ’clock. I turned out the -fires in the other stoves in the house and we had lunch about 12 o'clock. At that time only-two of the burners in the -stove in the dining room were burning. After lunch the children and I went into the adjoining bed room ‘and laid down. It was cold and the wind was blowing. The door between the two rooms was open. None of the windows was open. About 1 o’clock Mr. Coppedge talked to me over the telephone. I then turned down the two burners which were burning so that they would not make such a roaring sound but left both -of them burning freely. I then lay down on the bed again with my children. I went to sleep and do not remember anything else until I regained consciousness about two days later.
P. N. Coppedge testified: I left home for my work on -the morning of the accident ¡about 7 o’clock. I usually light the fires in the morning and the gas was burning in the dining room when I left -home. I talked with my wife over the telephone about 1 o’clock, but did not gelt home until about 10 o’clock that night. My house was dark When I reached it and I heard my wife groaning. I broke open the door and when I got into the house smelled an odor which I thought was -gas. When I got in the house and passed through the-dining room I heard the gas roaring through the burners and turned one of them -off. My children were dead. My wife was carried out on ¡the front porch and later brought back into the house. -She remained unconscious for two days anid suffered -great pain until she- was ¡carried to the hospital where, after the amputation of -one leg, she finally recovered.
Two of the neighbors of Mr. Coppedge testified that they went into -the house right ¡after him on the night of the accident and that the gas was then rushing through one of the burners of the istove in the dining room.
Another witness for the plaintiff’s testified that he went to their home between 10 and 11 o’clock on the morning of the accident and that the fire in the gas stove in the dining room was burning at that time.
The pipe line of the defendant which furnished gas to the plaintiff was on what is ¡called a dead end. By a “dead end” pipe line is meant one which is not connected with any other line so as to make a complete ¡circuit. One ■end is connected with the main line and extends out from it .and the ¡other ¡end is dosed up.
Other witnesses for the plaintiff, who were furnished gas from the same dead end line, .and who had stoves of a similar ¡kind to that ¡of the plaintiffs, testified that the pressure became ¡so low on different days in December, 1912, that the fires which they had ¡burning in their stoves went out. There was also testimony adduced for the plaintiffs which tended to show that there might have existed what is known as “¡back firing” in the stove of the plaintiffs at the time the injury occurred. That is, ¡that the gas might have been burning in the stove in a way that would not have been apparent and yet there might have been a partial combustion which would have created a poisonous gas.
The testimony on the part of the defendants is substantially as follows: The defendants piped gas to the city of Little Bock from their gas fields in the State of Louisiana and in the southwest corner of the city have a reduction plant where they reduce the pressure of the gas, and from there distribute it out over the city in pipe lines to their various customers; that water never accumulates in a pipe line with a dead end; that on the day of the accident there was not any lowering of the pressure of the gas different from that which happened on other days; itfkuaJt it was impossible to have at all times a uniform pressure of the gas; that when gas which is burning in a stove is turned down too low carbon monoxide may be formed; that carbon monoxide is a very poisonous gas and is free from color or odor and is of ¡almost the same density as air; that the natural gas used by the defendants ¡consists of 97-8/10 per cent of methane by volume, 1-25/100 per cent, of carbonic acid gas, and 95/100 of one per cent, of nitrogen; that gas coming from the same wells would remain practically the same for a good many years; and that not a single one of these constituents is poisonous to the slightest extent.
Experts for the defendants made a test by permitting gas to flow through a stove similar to that used by the plaintiff's in a closed room for several hours and testified that 'they with others remained in the room during the whole time and- felt no inconvenience whatever from the escaping gas.
Other evidence showed that if natural gas was supplied in a closed room in sufficient quantities a person there might become asphyxiated.
It was also shown on behalf of the defendants that the flue of the stove in the dining room of the plaintiffs was choked up with soot and the witness who examined it stated that it had become so hard that he could not pull it out with his fingers but had to get up on the roof and punch it out with a stick.
In rebuttal P. N. Coppedge testified that he reached up in the flue of the stove in the dining room with his hand and pulled out the soot which was loose and denied that it had become so hard that it had to be punched out from the top with a stick and denied that the witness for the defendant had punched it out from the top.
Other evidence for the plaintiffs tends to show that the soot in the flue was loose and was raked out with the hand from the inside of the room.
C. P. Langford, for the plaintiff, testified that he worked in the natural gas business from 1903 until 1913, that he helped put in gas lines in various cities in Arkansas, that the gas for which he laid lines was from the defendant’s fields in Louisiana, and that in laying pipe lines for gas dead ends are avoided as far as possible because where there is a dead end, the main line is likely to draw the gas out of the dead end and water then accumulates in the dead end.
Langford testified that if gas was passing through the main line at low pressure it would have a tendency, by suction, to draw the gas out of the dead end; that where there is a complete circuit there is a more nearly uniform pressure, but that there is not the same pressure in a dead end that there is in the main line; that the gas from the Caddo or Louisiana fields has not much odor but that it will affect one who works, in it, producing a headache and, if enough is inhaled, putting one to sleep; and that to inhale the fumes of it would make one sick. v (
An expert chemist also testified for the plaintiffs that he turned gas into a box with openings in it in which was placed a rabibit and'tbait'the rabbit soon died from the effects of the gas.
With much force it is insisted by counsel for the defendants that the evidence is not sufficient to warrant the verdict. No objection was made by counsel for the defendants to the testimony of Mrs. Anna Coppedge but, as we have already seen, the court instructed the jury that the testimony of husband and wife could only be considered .in his or her own case. .So, in testing the sufficiency of the evidence' to warrant the verdict, the testimony of Mrs. 'Coppedge is not to be considered in the case of the husband; and the testimony of Mr. Coppedige is not to be considered in the case of the wife. Though the testimony may not be altogether satisfactory, it is not open to the objection that the verdict of the jury rested mere upon surmise. There were facts testified to in each case which, if believed by the jury, would account for plaintiffs’ injuries being sustained by reason of the negligence of the defendants. If we could see that the verdict of the jury in either case could only have been reached by conjecture, it would be our duty to reverse the judgment; but if there is any substantial testimony, however conflicting, it is our duty to uphold the verdict.
The evidence in the case of Mrs. 'Coppedge tends to show that she lay down on the bed with her children some time after 12 o’clock and that she was called to the telephone about 1 o’clock. When she got up the fire was burning with a roaring sound through the stove and she turned it down “about medium,” as she expressed it. The fire- was still burning freely when she again went, to lay down. She went to sleep and does not remember anything more until she regained consciousness about two days later.
Other evidence tends to show that the plaintiffs were supplied with gas from a line which had a dead end and that in such cases there was a tendency, when the gas in the main line was at a low pressure, for the main line to draw the gas out from the pipe line with a dead end and thus lower the pressure in that line.
Evidence on the part of the plaintiffs also shows that other patrons of the defendant who were furnished gas on the same line had had trouble by the pressure being so low that the gas in their stoves went out; there was also testimony tending to show that when the pressure of the gas was lowered so that perfect combustion was not had •carbon monoxide, a very poisonous gas, might be formed.
Evidence for the plaintiffs further showed that when the pressure was very low there would not be a proper mixture of the gas and air and this would create what the witness called “back firing” and would result in fumes of poisonous gas being formed.
The testimony on the part of the defendants, it is trufe, tends directly to contradict this evidence, but the jury were the judges' of the credibility df the witnesses and the weight to be given to their testimony. This being the case, it can not be said that the verdict of the jury rested upon speculation merely; but from the evidence the jury might have found that the injuries sustained by the plaintiff resulted from the causes which we have just described and that the defendants were guilty of negligence in permitting* these conditions to exist.
It is apparent that the testimony of the husband was not necessary to establish the cause of action in favor of the wife. Mrs. 'Coppedge testified 'that she lay down at 1 o ’clock; that she turned the gas down and left it burning and flowing through the burners at a medium rate, and that it was burning freely.
One of the neighbors who' came into the house right behind the husband testified that the gas was pouring through one of the burners of the stove. It was claimed by the defendant that soot had accumulated in the flue so that air could not pass freely through it, but one of the witnesses for the plaintiff, other than the husband, testified that the soot was loose in the flue and not packed together as the witness for the defendant described it and the jury might have inferred that the soot had not stopped up the flue of the stove.
Neither was the testimony of Mrs. Coppedge necessary to enable the husband to recover. One of the neighbors testified that when he went there to deliver some groceries between 10 and 11 o’clock in the morning, the fire in the dining room stove was burning and that it was a cold day. The husband testified that when he came into the house there was no gas escaping from any of the stoves except the one in the dining room and that the doors were open between the dining room and the room where Mrs. Coppedge and her children were found. He said that the gas was rushing through two of the burners in the stove in the 'dining room and that he turned one ' of them off as he rushed into the room where his wife lay. In this he is corroborated by neighbors who came in right behind him and who said that gas was .coming through one of the burners in the dining room stove.
The next assignment of error is that the court .erred in permitting witnesses to testify to the effect that a few days prior to this time the pressure of the gas had become so low that their stoves went out. We do not think there was any error in admitting this testimony. The object of legal inquiry is to ascertain the truth of the facts in issue in the pleadings, prohibiting collateral issues. This rule only requires that the evidence be relevant. It was the contention of plaintiffs that Mrs. Coppedge left the stove burning freely when she went to bed and that the pressure of the gas became so low that the fire went out, and in so doing, there was an incomplete combustion of the natural gas which caused a poisonous gas to be formed which escaped in the room and caused the injuries sustained by Mrs. Coppedge and the death of her two children, or, that when the fire went out, the natural gas itself, when the pressure became greater, again came into the room in such -quantities that the two children of the plaintiffs were asphyxiated and Mrs. Coppedge was so overcome by the quantity of gas which escaped into the room that her injuries resulted.
On the other hand it was the contention of the defendants that there was no more variation of the pressure of the gas on that ¡day than on any other day and that the fact that the plaintiffs received their ¡supply of gas from a pipe with a dead end in no sense caused the pressure of the gas to vary during the day, and that as a mutter of fact their gauge showed 'that the pressure of the gas did not vary on that day.
The condition of the pipe line which supplied the plaintiffs with gas 'thus became ¡a material issue in the case. The witnesses who testified for the plaintiffs received their supply of. gas from the very same pipe which supplied the plaintiffs. Their stoves were in no essential respect different from that used by the plaintiffs. They testified that on other days,- near to the date of the injury, the fires in their stoves had gone out because the pressure of the gas had become so -low. This testimony, then, was not collateral to the issues joined by the pleadings and tended to establish the fact contended for by the plaintiffs. That is to say, that the gas furnished by the pipes -which had a -dead end varied greatly in the pressure and that this was caused by the main line drawing 'the gas -out of the pipe line with a dead end and that water would then be formed in the pipe with the dead end. The conditions ¡described .by them were in all essential respects similar to the conditions described by the plaintiffs. Therefore the testimony was relevant and the objections of the defendants thereto go more to the weight of the testimony than to its relevancy.
The next assignment of error is that the verdict of the jury in the -case of P. N. -Coppedge is excessive. He recovered $7,500. The testimony shows that he -expended more than $1,400 in -medical -services for his wife after she was injured. It is the contention of counsel for the defendants that he was only entitled to recover this amount and that he could not recover anything for the loss of consortium of his wife.
It is true that in this ¡State the wife may prosecute her suit independently of her husband for injuries indicted upon her by the negligence of another. Railway Co. v. Amos, 54 Ark. 159.
In the case note to 23 American and English Annotated Oases, a't page 1125, it is ¡said: “'The rule prevailing in ithe great majority of the states is that the ¡statutes generally known as the ‘Married Women’s Property Act’ authorizing a married woman to sue for personal injuries in her own name without joining her husband and making the amount recovered her separate property, do not deprive the husband of his common-law right to sue for the loss of the services, society .and companionship of his wife resulting from her personal injuries.” Many oases are cited in support of the rule.
The same rule is announced in ;a case note to 33 L. R. A. (N. S.), at pages 1046 and 1047, and numerous cases are there cited in support of the rule.
It is also contended 'by counsel for the defendant that the husband is not entitled to recover for the services and companionship of his wife, except in case of her death, as provided in section 6287 of Kirby’s Digest. This section gives a husband the right to recover for the services and society of his wife where death resulted to her by the wrongful act or negligence of another person. It did not, however, take away his. common law right to recover for her services and companionship from, injuries sustained by her from the negligent act of another where death did not ensue.
The husband has a right to the services and society of Ms wife by virtue of the marital relation and they are purely personal to him. See Billingsley v. St. Louis, I. M. & S. Ry. Co., 84 Ark. 617.
The word “services” does not contemplate merely what wages should be paid the wife for the work actually performed by her, but it rather implies whatever assistance, aid or comfort she would be expected to render her husband in all the relations of domestic life.
The word “consortium” includes aid, society, companionship, assistance and affection and the law does not attempt to separate these elements of damages. So, it can not be said that the amount of damages recovered by the plaintiff, P. N. Coppedge, is excessive.
It is also contended that the court erred in not requiring plaintiffs to permit the defendants to make experiments in their home as they did in other places by permitting natural gas to. escape into the room where persons were exposed. This was a matter in the discretion of the court, /and we do not think the court abused its discretion. As we have .already stated, the defendants made experiments under what they testified were similar conditions at' other places.
Complaint is also made of the refusal of the court to give certain instructions asked for by the defendants. We do not deem it necessary to set out these instructions or to comment on them at length. We have carefully examined the instructions given by the court at the request of the defendant and are of the opinion that the matters embraced in the refused instructions were contained in those given by the court, and it has been repeatedly held that it is not prejudicial error for the court to refuse to repeat instructions.
We have carefully examined the record in this cause and though we think there was a close question of fact presented to the jury in regard to the negligence of the defendants, we think the case was fairly and properly submitted to the jury, and there 'being evidence of a .substantial nature to support the verdict, the judgment must be affirmed. | [
-80,
121,
-19,
-17,
-52,
100,
56,
74,
66,
-93,
39,
-41,
-1,
-34,
1,
63,
50,
111,
81,
59,
70,
-77,
31,
34,
-46,
-109,
115,
-121,
-76,
74,
-12,
86,
76,
48,
-53,
-47,
103,
-62,
-55,
28,
-122,
12,
-24,
-24,
89,
82,
48,
115,
20,
27,
113,
-114,
-13,
42,
52,
-57,
110,
46,
78,
-18,
-47,
113,
-122,
5,
105,
0,
-95,
38,
31,
-89,
-64,
31,
-120,
49,
8,
-19,
50,
-108,
-126,
-12,
73,
-103,
12,
98,
98,
33,
5,
-89,
24,
-126,
38,
63,
-103,
-89,
-16,
64,
75,
33,
-66,
-107,
69,
84,
47,
126,
-19,
-59,
29,
104,
-125,
-113,
-106,
-77,
23,
118,
-97,
19,
-6,
-115,
52,
117,
-55,
-32,
92,
5,
122,
-37,
-50,
-74
] |
Smith, J.,
(after stating the facts). This action was instituted under section 7976 of Kirby’s Digest, and so much of that section as is relevant here, reads as follows : “If any person shall cut down, injure, destroy, or carry away, any tree placed or growing for use or shade, or any timber, rails or wood, standing, being or growing on the land of another person, * * * in which he has no interest or right, standing or being on any land not his own, or shall wilfully break the glass, or iany part of it, in any building not ibis own, every person so trespassing shall pay the party injured treble the value of ■the thing so damaged, broken, destroyed, or carried away, with costs.”'
It is evident that the action there provided for is not the common law action of trespass upon reial estate. On the Contrary, a statutory action is provided whereby the owner of the shade trees and certain other property may recover as damages treble the value of such property, against one who wilfully destroys it. ,
The question for decision therefore is, What is the measure of damages against one who willfully destroys shade trees growing and being on the lands of another?
In the ease'of Fogel v. Butler, 96 Ark. 87, it was said that the word, value, as here employed, meant market value. The term “market value” is one which has been defined, in its various applications, in many decisions. A number of these definitions are given in Words and Phrases, under that title, and among others so given are the following:
“In estimating the market value of property, all capabilities of the property ¡and all uses to which it may be applied are to be considered. Seaboard Air Line Ry. v. Chamblin, 60 S. E. 727, 108 Va. 42.”
“The ‘market value of property’ is its value for any use to Which it may be adapted, and in estimating its value '-all 'the uses of which 'the property is susceptible should be considered, and not merely the condition in which it may be at the time and the use to which it may have been put by the owner. In re Westlake Ave., 82 Pac. 279, 281, 40 Wash. 144 (quoting and adopting the definition in Seattle & M. R. Co. v. Murphine, 30 Pac. 720, 4 Wash. 448).”
The .statute refers to “'any tree placed or growing for use or shade,” and this language indicates the intention of the Legislature to permit the jury to consider the use 'to which any tree was adapted in /assessing the damages for its destruction.
It is a matter of common knowledge that there are many trees which have but little value, except for shade; yet such trees would add greatly to the value of any property where -shade was desired.
It is, therefore, proper to consider the use which may be, and is, made of the tree, and if the tree adds 'to the value of 'the land, while its destruction detracts from its value, then this difference in value is the measure of the recovery, even against one who, without malice, destroys it. But if the tree was maliciously destroyed, the damages recoverable are treble this value.
The instruction of the court was, therefore, correct and 'the judgment is •affirmed.
McCulloch, C. J., and Hart, J., dissent. | [
-45,
126,
-36,
-84,
27,
96,
42,
-8,
65,
-61,
-9,
91,
-33,
-61,
1,
43,
-89,
105,
117,
34,
-43,
-29,
23,
-125,
-42,
-109,
-13,
85,
57,
-52,
127,
69,
13,
32,
-62,
-11,
35,
-128,
-59,
80,
6,
-89,
43,
65,
-11,
64,
52,
27,
64,
75,
113,
-97,
-69,
12,
24,
-55,
8,
40,
79,
33,
-15,
120,
-88,
13,
91,
23,
-95,
102,
-68,
71,
-56,
72,
-112,
61,
0,
-24,
115,
-78,
22,
116,
13,
-117,
12,
98,
98,
48,
13,
-9,
-40,
-120,
47,
-16,
-115,
-90,
84,
24,
67,
41,
-81,
-98,
108,
0,
28,
126,
-29,
28,
29,
109,
23,
-121,
-42,
-77,
-115,
40,
-104,
11,
-50,
-121,
49,
101,
-50,
-86,
92,
101,
118,
-37,
-116,
-35
] |
Hart, J.,
(after stating the facts). The law in this ease is well stated in English v. North, 112 Ark. 489, 166 S. W. 577. In that case the court held:
1. “Misrepresentations which will justify the rescission of a contract for the sale of land must be of a decided and reliable character relating to some matter of inducement to the making of the contract calculated to mislead the purchaser and induce him to tony on the faith and confidence thereof, and in the .absence of means of information to he derived from his own observation and inspection, and must injure the party seeking to rescind. ’ ’
4. “Where one who exchanged 125 acres of land for city property, not only misrepresented its value, but also represented that all except possibly ten acres was susceptible of cultivation in some form, when in fact not more than forty-five acres was tillable, though he had special information regarding the character of the land acquired by personal observation, and was told by the other party that he would take the land in reliance on such representations, and it appeared that the other party was injured by the exchange, a rescission would be decreed.”
So it may be taken as well settled in this State that in order to vitiate a trade on the ground of fraudulent misrepresentation, the misrepresentation 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 Ms injury.
It is also the law that if the means of information as to the matters represented is equally accessible to both parties they will be presumed to have informed themselves, and if they have not done so they must suffer the consequences of their own neglect.
The chancellor was of the opinion that a clear preponderance of the evidence showed that the defendant urged the plaintiff to visit the Texas land before the deeds had been exchanged and offered to pay half of the expenses of the trip. It was also the opinion of the chancellor that the plaintiff 'refused to go, but made an independent investigation of his own as to the value of the lands and as to their character.
We do not agree with the chancellor in this finding. It is true the defendant offered to pay half of the expenses of the plaintiff in order that he might go and look at the land himself before the trade was made. It is also true that the plaintiff did make inquiry of another person who resided in' Texas concerning the land, but this person did not live in the immediate vicinity of the land and only told the plaintiff that as a general proposition western lands were rising in value. The plaintiff stated that he did not accept the proposition of the defendant to go and examine the lands before he made the exchange for them 'because he relied upon the representations made to him by the .defendant, and we are of the opinion that he had a right to rely upon these representations.
The defendant told him that he had never been on the lands and that the representations he made in regard to them were derived from Nelms, but Nelms was his agent when he exchanged his Texas land for them.
The preponderance of the evidence shows that the defendant represented to the plaintiff that the lands were of black sandy loam, and that part of them had been cultivated in onions; that the land was adapted to the cultivation of certain kinds of grain and fruits; also that there was a flowing well of water on the tract of land adjoining and that this well was situated near the partition line between this land and the adjoining section; that the lands were situated near Metz; that Metz was a thriving village of eight hundred people; and that there were stock pens and facilities for handling stock on the land.
The preponderance of the ■ evidence shows that these representations were not true; that the town of Metz was situated at least eight miles away and that only nineteen people lived there, most of them Mexicans; that there were no stock pens or switches on the railroad nearer than the town of Metz; that there was no flowing well of water on the land, the nearest water being a small well on the section adjoining, several miles away •from the partition fence; that one-half of the land was gyp, which was wholly unsuitable for raising any kind of crops, and that the other half was sand and crops of no kind could be raised on it.
The representations that the land could be rented for three dollars an acre was not true; it could only be rented as pasture land and the rental value was only-ten cents per acre.
Nelms, the preacher who represented the defendant when the exchange was made for the Texas land, testified that he told them there was a small well ion the land 'adjoining hut as we-have already seen this well instead of being near the partition fence was several miles away and instead of being a flowing well, was only a small well with a wind ¡mill attached to it. Nelms also said that the land was a black sandy loam and was capable of raising good crops of different kinds of grain and fruit but the testimony of several other parties who resided in Craine County showed that there were only about two hundred people in the county; that -the soil was entirely worthless for agricultural purposes 'and that no water could be procured on it by digging wells.
Cannington, who tried to purchase the lands for Harris after the exchange in question was' made, testified that Davis told him that the lands wére situated right on 'the railroad; that Metz was a flourishing town of a thousand inhabitants; and that stock pens were situated on the railroad right next to the land. Though these statements of Cannington were made after the exchange had been made, the testimony was competent as tending to discredit the testimony given by Davis on the trial of the case.
It will be remembered that Davis stated that he merely told Loveless what had been represented to him by his agent Nelms. Nelms testified as to what he had told Davis and under this testimony the plaintiff might well have believed that the land was susceptible to cultivation and was well worth the land which he exchanged for it.
These representations the plaintiff relied upon, and had a right to rely upon, and the preponderance of the evidence shows that the representations were not true. All of the witnesses who lived near the land testified that it was a dry, arid place, unfit for cultivation, with no water on it and none near it.
Under these 'circumstances we do not think it is a case for the 'application of the rule that where the means of information are alike accessible to both parties they must be presumed to have acted upon their own information and not to have relied upon the information given them by the other.
It follows that 'the judgment must be reversed and the cause remanded with directions to enter a decree in favor of the plaintiff in accordance with the prayer of his complaint. | [
-78,
-18,
-40,
45,
10,
96,
42,
-70,
90,
42,
39,
95,
77,
-54,
8,
55,
-26,
109,
116,
104,
84,
-77,
7,
-125,
-10,
-109,
-45,
-35,
-67,
79,
-17,
77,
76,
48,
-62,
-43,
-26,
-54,
-127,
-36,
-82,
4,
-118,
109,
-1,
64,
52,
41,
0,
73,
65,
-82,
-13,
46,
57,
67,
105,
42,
-17,
57,
-63,
-40,
-66,
13,
123,
2,
-128,
103,
-76,
35,
72,
110,
-104,
121,
9,
-56,
119,
-74,
6,
116,
15,
43,
8,
98,
103,
16,
85,
-93,
54,
-68,
47,
-8,
13,
-90,
-48,
88,
11,
104,
-66,
-97,
93,
4,
7,
124,
-26,
28,
29,
104,
27,
-49,
-106,
-93,
-99,
54,
-104,
3,
-10,
-91,
-111,
113,
-51,
-94,
92,
117,
18,
-101,
12,
-17
] |
Hart, J.,
(after stating the facts). It appears from the record that the Farmers’ & Merchants’ Bank had a valid mortgage on the undivided interest of O. A. Rushing in certain cotton raised by him, and that the First National Bank had a mortgage on the interest of J. S. Roy, a share-cropper of Rushing, in the same cotton.
One of the grounds relied upon by appellant for a reversal of the decree is that appellee had given Rushing permission to sell the cotton,, and had thereby lost its mortgage lien. Both Rushing and DuBard, the cashier of the Farmers’ & Merchants’ Bank, denied that that bank gave Rushing permission to sell the mortgaged cotton. They both testified that the Farmers’ & Merchants’ Bank gave the First National Bank permission to sell the cotton, because they both had separate mortgages on separate undivided interests in the cotton. It was understood that, when the cotton was sold, Rushing’s interest in the proceeds should be turned over to the Farmers ’ & Merchants’ Bank and applied towards the payment of his mortgage indebtedness to that bank.
It is true that the cashier of the First National Bank contradicted this testimony, but the chancellor found in favor of the Farmers’ & Merchants’ Bank on this point, and it cannot be said that his finding is against the preponderance of the evidence. Hence it became the duty of the First National Bank to turn over to the Farmers’ & Merchants’ Bank the sum of $123.13, which was the amount received by it from the sale of Rushing’s interest in the mortgaged cotton. The Farmers’ & Merchants’ Bank and the First National Bank each had a mortgage on an undivided interest in the same cotton. The parties had a- right to agree to a private sale of the mortgaged cotton and to apply the proceeds of the sale to the mortgage indebtedness, respectively, of Rushing and Roy. This, by agreement of the parties, amounted to a foreclosure of the mortgage at private sale, and the refusal of the First National Bank to pay the proceeds-arising from the sale of Rushing’s interest in the cotton to the Farmers’ and Merchants’ ¡Bank amounted to a conversion of the same by it, and made it liable therefor to the Farmers’ & Merchants’ ¡Bank. In short, the refusal of the First National Bank to pay over to the Farmers’ & Merchants’ Bank the amount received by it frorri the sale of Rushing’s interest in the cotton amounted to a conversion of the proceeds, and rendered it liable to the Farmers’ & Merchants’ Bank therefor.
It is next insisted by counsel for appellant that ap-pellee, having been allowed to intervene in the suit in the circuit court filed by the Retail Lumber Company against 0. A. Rushing as defendant and the First National Bank as garnishee, could not subsequently withdraw from that suit, and that the judgment of the circuit court in favor of the Retail Lumber Company against First National-Bank, garnishee, settles the issues and precludes the Farmers’ & Merchants’ Bank from recovering against the First National Bank in the chancery case. That would be true if that suit had proceeded to judgment before the Farmers’ & Merchants’ ¡Bank had been allowed by the court to withdraw from it. The record shows that its intervention in that suit was dismissed without prejudice, and that the present suit was instituted by it against the First National Bank on the same cause of action before judgment was rendered in the circuit court in favor of the Retail Lumber Company against the First National Bank as garnishee.
It is insisted by counsel for appellant that, if appel-lee is allowed to recover against it in this suit, it will have to pay twice. -That is true, but the fault is with appellant. As we have just seen, the intervention of ap-pellee in the circuit court was withdrawn without prejudice, and the present suit was begun in the chancery court before the case in the circuit court came on for hearing. Notwithstanding the pendency of the suit in the chancery court, the appellant allowed the Retail Lumber Company to take judgment against it by default ■in the circuit court. No doubt this was done with the desire to favor the Retail-Lumber Company, because the officers in that company and in the First National Bank were practically the same. The First National Bank had a right to favor that company in any way it could legitimately do so, but it had no right to favor it to the legal prejudice of the Farmers ’ & Merchants ’ Bank. The latter had the right, by permission of the court, to withdraw from the suit in the circuit court without prejudice, and to institute a new suit on its own account on the same cause of action against the First National Bank. If the latter bank wished to avoid payment twice, it should have defended the garnishment suit in the circuit court and not have allowed judgment to be rendered against it by default. Not having done so, it took the chance of the Farmers’ & Merchants’ Bank’s recovering the proceeds arising from the sale of Rushing’s interest in the cotton in the chancery court.
Appellant made no objection to the appellee dismissing its intervention in the suit in the circuit court, and is not now in -an attitude to complain of the court’s action in allowing the dismissal without prejudice.
In this connection it may be said that no objection was made by appellant to appellee’s bringing suit against it for the conversion of the mortgaged cotton in the chancery court.
The decree of the chancery court will therefore h¿ affirmed. | [
-80,
-8,
-36,
-115,
90,
32,
42,
-102,
80,
-96,
-89,
-13,
-23,
-50,
17,
45,
-26,
121,
116,
57,
-44,
-73,
23,
105,
-62,
-13,
-47,
-59,
-72,
105,
-26,
-33,
12,
40,
66,
-43,
-26,
-64,
-63,
-36,
-114,
-115,
-85,
109,
-35,
64,
48,
42,
84,
73,
17,
-114,
-13,
46,
29,
82,
40,
46,
105,
57,
80,
-7,
-102,
-114,
127,
5,
49,
36,
-100,
-73,
-56,
46,
-104,
53,
1,
-24,
127,
-92,
-122,
84,
15,
11,
9,
98,
102,
3,
97,
-19,
90,
-120,
38,
-34,
-99,
-122,
-112,
88,
3,
40,
-65,
-97,
74,
1,
6,
-4,
-2,
-99,
29,
108,
25,
-113,
-74,
-77,
-83,
124,
-102,
-125,
-2,
-89,
-72,
113,
-49,
-86,
93,
71,
50,
-101,
-106,
-3
] |
Smith, J.
On February 1, 1920, James A. Hays, the appellee, brought suit against appellant, E. B. Ash-more, for the alleged unlawful detention of a hotel in the city of Paragould, alleging the nonpayment of the rent covenanted to be paid under a written contract existing between the parties. The lease contained a provision whereby the lessor might declare the lease forfeited if the rent was not paid.
Appellant denied a failure to pay rent, and alleged a default upon the part of appellee in making certain necessary repairs which appellee had expressly covenanted to make. On appellant’s motion the-cause was transferred to equity, where it was tried.
After the transfer of the cause appellee applied for the appointment of a receiver to collect the rents, and that appointment was made. Upon appellant’s objection, this receiver was removed and another appointed, who was also removed, at appellant’s insistence. Thereafter two receivers were appointed to act together, one at the instance of each party.
The case remained on the docket until April 7, 1922, at which time a decree was entered which, appellee insists, was a final decree if, in fact, a final decree has been entered. Prior to the rendition of this decree the court had made orders in which the receivers were directed to make repairs, and the receivers made report of the repairs which they had made.
On April 7, 1922, the court made an order, in which it was recited that appellant liad not paid the rent since December 1,1921, and directed him to pay the same within twenty days. The receivers were ordered to make certain additional repairs. Appellant failed to pay the rent, whereupon appellee filed a motion asking the court to issue a writ of possession. To this motion appellant filed a lengthy response. At the hearing on May 10, 1922, the court found appellant was in arrears for rent to the extent of $1,950, and ordered that a writ of possession issue unless he should pay $500 before noon of May 16 and $700 before noon of June 5, and the monthly rental thereafter before the fifth day of each month. The payments so to be made were to be held by the receivers subject to the order of the court. Appellant excepted to said order, and thereafter filed a motion to modify the decree of May 10, alleging that appellee had failed to make repairs. He took testimony on his motion, which the court heard on June 10, and on that date the court found that appellant had not complied with the order of May 10, and refused to modify that order. Appellant prayed an appeal from the refusal of the court ■to modify its order of May 10.
It appears, from the recitals of the orders and decrees to which we have referred, that neither the plaintiff nor the defendant had fully developed his testimony on the question of damages for failure to make repairs, but appellant insists that the testimony taken shows that his-damage was largely in excess of the sum claimed as rent.
After praying and perfecting an appeal, appellant gave a supersedeas bond and has remainded in possession, and on August 12, 1922, he filed a petition asking that the receivers be directed to make certain repairs. At the hearing .of this motion the receivers were directed to make repairs of an extensive and expensive character.
It is first insisted that there was no final decree from which an appeal would lie. We think there was a final decree from which an appeal was properly taken, and this decree was that of May 10, as the decree of Jnne 10 was a mere refusal to vacate or modify the decree of May 10. Oxford Telephone Mfg. Co. v. Arkansas Nat. Bank, 134 Ark. 386; Pearce v. People’s Savings Bank & Trust Co., 152 Ark. 581.
The appeal from the decree of May 10 was perfected on November 10, which was exactly in time.
The decree of- April 7 was interlocutory, and did not become final until May 10, but the decree of the last date was final because it granted the relief sought by plaintiff, to-wit: the recovery of the possession of the premises. Branstetter v. Branstetter, 130 Ark. 301.
Here the plaintiff insisted the defendant was in default in payment of rent. The defendant insisted that he was not in arrears, that his rents had been more than paid by the damages resulting to him from the plaintiff’s failure to repair. This was a valid defense, if true, as defendant could not be required, to pay if his damages exceeded his rents, it being his insistence that the repairs were so extensive and_ expensive in comparison with the rent reserved as that he would not be required to make them on the -lessor’s default and take credit therefor on his rent account. Brunson v. Teague, 123 Ark. 594; Johnson v. Inman, 134 Ark. 345; Young v. Berman, 96 Ark. 78; Berman v. Shelby, 93 Ark. 472; Tedstrom v. Puddephatt, 99 Ark. 193.
The order of the court awarding the writ of possession is defended upon the ground that it was merely a method employed by the court to enforce obedience to its decree ordering the appellant to pay rent; but the court should not have made the order awarding the writ of possession. Upon the contrary, the case should have been tried upon its merits, and the fact ascertain e/1 whether appellant was in default in the payment of his rents, or had paid them by sustaining damages as the result of appellee’s failure to repair.
The lease contained the provision that the lessor might declare the lease forfeited for nonpayment of rent, but the question is whether there has been a failure to pay rent. Williams v. Shaver, 100 Ark. 565.
It is appellant’s insistence that he is not in default, and, if this is true, the possession should not have been awarded to appellee, the lessor.
In other 'words, the court granted appellee the relief originally prayed by him, and has reserved for decision the very question which must determine whether appellee is entitled to have that relief, which is, did appellant default in paying his rent?
For the error indicated, the decree of the court below is reversed, and the cause remanded, with directions to set aside the decree awarding appellee the possession of the property before the final hearing of the cause, and to restore the possession of the property to the reviver. if the court is of opinion that the receivership should be continued. | [
-46,
122,
-120,
-17,
74,
64,
40,
-104,
-14,
-15,
54,
87,
-17,
84,
16,
105,
-9,
109,
113,
121,
103,
-77,
86,
98,
-38,
-13,
115,
-59,
-68,
77,
-12,
-44,
72,
37,
-62,
-101,
-62,
-64,
-63,
-36,
78,
9,
-87,
-28,
-39,
64,
48,
-85,
0,
75,
97,
-98,
-5,
46,
17,
87,
76,
105,
95,
-87,
-16,
-7,
-6,
4,
107,
86,
-112,
6,
-100,
-125,
72,
76,
-104,
53,
36,
-24,
115,
-74,
-122,
116,
37,
-101,
9,
38,
98,
34,
69,
-25,
-32,
-67,
62,
-102,
-115,
-90,
-15,
88,
67,
73,
-66,
-99,
124,
4,
4,
126,
-31,
-107,
29,
40,
-118,
-50,
-74,
-13,
-113,
-72,
-124,
27,
-5,
3,
32,
116,
-115,
-124,
92,
-57,
115,
-101,
-57,
-103
] |
Smith, J.
Appellant, Karnes, was convicted as accessory before the fact to the crime of robbery committed by one Horace Dill on one W. W. Black on October 15, 1921. Dill had entered a plea of guilty to the crime of robbery, and was serving a sentence in the penitentiary when he was called as a witness against Karnes.
Dill testified that he and Karnes lived in Missouri, and that one Dozier Skelton, a brother-in-law of Karnes, lived on Black’s farm. Skelton told Karnes that Black habitually carried on his person from three to four thousand dollars, and these three discussed in the spring of ■ 1920 a plan to rob Black. The discussion was renewed in the fall of that year, and the three met in "Wynne to perfect the details of the robbery. They agreed the best time to commit the crime was when Black was hauling cotton. Their first plan miscarried because Black did not haul the cotton to the place where they anticipated he would haul it. They again met, and it was agreed that Skelton should write Karnes when Black had another load to haul. Karnes received a letter from Skelton that Black would haul another load on Wednesday or Thursday, and the parties prepared to commit the crime on one of those days. Black did not haul cotton on either day, so Dill and Karnes went to the street fair at Wynne on Thursday night, where théy met two young women and an older woman. Dill and Karnes had become impatient over the lack of opportunity to rob Black, and determined to go home on Friday, but, before doing so, Karnes went to the gin on Friday and came back and reported that Black and Skelton had arrived in Wynne. Dill and Karnes put on their overalls and met Skelton for a final conference, at which the plan to rob Black that day was perfected. Karnes insisted that witness Dill and not himself should go out on tlie wagon with. Black, because Black would know Karnes, as Karnes had been at Black’s home a few days before. Karnes was to remain at Wynne, while Dill and Skelton went in the wagon with Black and they were to rob Black on the way to 'Black’s home; and it was agreed that Karnes would meet Dill at a place on the railroad between Fair Oaks and Til-ton, these being stations on the Cotton Belt railroad, and that Dill would indicate the point on the railroad near which he would be in hiding by a small pile of tom paper placed in the center of the railroad track.
After Dill had put on his overalls, Karnes took charge of Dill’s street clothes, and the men separated, to meet again after the robbery at the point indicated by the pile of paper. Skelton knew the road Black would travel from Wynne to his home, and was to indicate to Dill when a favorable time- had arrived and place had been reached for the robbery, but as they drove along Skelton shook his head in protest from time to time, indicating that the time was not propitious on account of the number of people they were meeting and passing on the road, and they arrived at Black’s home without an opportunity having been afforded for Dill to rob Black, but, before getting out of the wagon, Skelton whispered and told Dill to come back the next morning and bring Karnes with him. Dill went to the place appointed for his meeting with Karnes, but failed to find Karnes, so he returned to Fair Oaks and spent the night there, and returned to Black’s farm the next day, and robbed him in the following manner. He told Black he thought of buying his farm, 'and Black proceeded to show it to him. More than one opportunity was afforded, but Dill’s nerve failed him, but finally, on a third trip from -the house into some woods, they came to a ditch, and here the crime was committed. Dill was walking behind Black, when he struck him over the head with his pistol, rendering -Black unconscious. This occurred about eleven o’clock Satur- clay morning. Tlie pistol with which he assaulted Black had been furnished him by Karnes. Dill searched Black’s prostrate body and found $1,181 on his person. He hurriedly made his way to the railroad, and, after counting off $51 of the money, he divided- the remainder into two rolls and hid each roll in a pile of cross-ties. He hid the pistol with one of -the rolls of money, and went to Paragould on the train, where he spent the night. The following day he went to Missouri and to Karnes’ home. Karnes asked him if he 'had gotten the money, but he refused to discuss the-matter with Karnes at that time because Karnes was drunk. He returned to Karnes’ home that evening and found Karnes somewhat sobered, but sick, and told him that he had robbed Black. A short time afterwards Karnes sent another brother-in-law of his back to Cross County with Dill to look for the money, but they found only one of the rolls of bills. Dill testified that the roll which was found was divided equally between himself and Karnes and Skelton, except that he was allowed to keep $51, in consideration of the fact that he had personally committed the robbery; but that Skelton was arrested for this crime, and upon that fact being reported to him by Karnes, he agreed that Skel-ton might have the $51 to aid him in his trial, and gave the'$51 to Karnes to be used for that purpose.
Dill admitted that he never saw Karnes, after leaving him in Wynne, until he saw him in Missouri, after the robbery, and he admitted that he failed to see Karnes at the place appointed for the meeting after Black was to have been robbed on the way to Black’s home in the wagon. Dill testified that Karnes told him in Missouri that his nerve failed him after he reached Fair Oaks, and, instead of waiting between that place and Tilton, as he'had agreed to do, for Dill to appear, he went home.
After leaving Karnes at Wynne, Dill did not see him again until he saw him in Missouri; and after separating from Skelton at the wagon at Black’s home he'did not again see Skelton until the robbery had been committed. •
Karnes denied Dill’s story in its entirety, and testified tliat lie liad never been in Cross County until lie was arrested for the robbery of Black and carried there to be tried on that charge, and offered' testimony which, if believed, established very clearly his defense that he was in Missouri during the time the State’s witnesses located him in Cross County.
The two girls with whom Dill and Karnes went to the fair identified Karnes, as did also the older woman, and three other witnesses, including Black’s wife, also identified him as the man they had seen with Skelton a few days before the robbery, and the identification by three of these witnesses was positive and unequivocal. The other three testified they thought Karnes was the man, but they were not certain.
The court gave, at defendant’s request, correct instructions on the character and quantity of testimony necessary to corroborate the testimony of an accomplice to support a conviction; but the court refused to give, at defendant’s request, instructions numbered 5, 6 and 7. These instructions deal with the same phase of the case, and we set out instruction numbered 7, which is typical of the other two. It reads as follows:
“Even though you may believe and so find, beyond • a reasonable doubt, that the defendant was in Cross County, Arkansas, prior to the commission of the crime with the witness Dill, and that he encouraged and advised the said Dill to commit the same, yet if you find that the crime was to be committed on Friday, October 14, 1921, by witness Dill, and that, after the commission of the crime, the defendant was to meet Dill at a place on the railroad between Fair Oaks and Tilton, and that, after such agreement was so made, the said Dill, for any cause, abandoned the commission óf said crime on said date, and that the defendant Karnes had likewise abandoned the commission thereof in good faith, and that he had left the State of Arkansas and gone to the State of Missouri, and was in said State on the date of the com mission of tbe crime, and that said Dill bad notice thal tbe said Karnes bad' abandoned tbe intent to commit tbe crime, and with such notice tbe said Dill thereafter, on Saturday, the 15th day of October, committed said crime, then the court instructs you that the defendant is not guilty, and you will return a verdict for him.”
It is earnestly insisted that error was committed in refusing this instruction, it being insisted that, when Karnes failed to meet Dill at the meeting place on the railroad, and then went to Fair Oaks, where he also failed to meet Dill, this was notice to Dill that Karnes bad not and would not carry out his- part of the agreement, and that, having such notice, Dill could not assume that Karnes was concurring in his conduct on Saturday, when the robbery was carried out in a manner that had never been agreed upon.
Now, the defendant did not testify that he had ever abandoned the conspiracy. On the contrary, his defense is that he never entered it, and all the testimony offered by him was directed to an attempt to sustain that defense.
It is true that, if testimony of a substantial nature presents a defense, the defendant is entitled to have an instruction given on that subject, although it contradicts his own testimony. Gibson v. State, 135 Ark. 520; Flake v. State, 156 Ark. 34.
One cannot aid and advise another to commit a crime and, after inducing him to do so by giving advice and encouragement and assurance of support, escape responsibility by saying that the crime was not committed at the time and place or in the exact manner he had advised. He must withdraw the aid and assistance which prompted and induced the commission of the crime, and this withdrawal must not be a mere mental process, of which the actual perpetrator of the crime is unaware, but he must communicate the fact of his withdrawal to the person whom he has inspired to commit the crime, and must do so before its commission.
At section 12 of the article on Accessories in 1 R. C. L., page 139, it is said: “A person who encourages the commission of an unlawful act cannot escape responsibility by quietly withdrawing from'the scene. The influence and effect of his encouragement continue until lie renounces the common purpose and makes it plain to the others that he has done so, and that he does not intend to participate further. He cannot, by the coward’s expedient of running away after he has incited his associates to crime, escape punishment.”
At section 27 of the same article, page 147, it is said: “If the accessory withdraws his aid and advice before the crime is committed, and does what he can to prevent its perpetration, he will not be liable if the crime is committed as the result of some new and intervening cause, but mere change of mind will not of itself exonerate him. ’ ’
In the chapter on Criminal Haw in 16 C. J.. under the sub-liead of Accessories before the-Pact, it is said, at section 124, pp. 133, 134: “Where the perpetration of a felony has been entered upon, one who had aided and encouraged its commission may nevertheless, before its completion, withdraw all his aid and encouragement and escape criminal liability for the completed felony; but his withdrawal must be evidenced by acts or words showing to his confederates that he disapproves or opposes the contemplated crime. Thus, his mere flight from the place of the crime before its completion, although his co-conspirators have knowledge thereof, will not relieve him from liability for the consummated crime.”
At section 132, page 137, of the same text, it is said: “If one who has counseled or commanded the commission of a crime, or has agreed to take part in it, repents and withdraws, to the knowledge of the other party, before the crime is committed, he will not be liable as an accessory; but if he does not withdraw until it is too late, or fails to let the other party know of his withdrawal, he will be liable.”
At section 128, page 135 of the same text, it is said: “But for crimes which are the outcome of a total or substantial departure from his counsel, ■agreement, directions, or instructions, he is not liable. Where a particular intent is requisite to constitute a crime, an accessory before the fact must have participated in that particular intent.”
To the text last quoted there is a note 37-(b) reading as follows: “ ‘I believe the following criteria will let the most inquisitive reader into the grounds upon which the several cases falling under this head will be found to turn. Did the principal commit the felony he standeth charged with under the influence of the flagitious advice, and was the event, in the ordinary course of things, a probable consequence of that felony? Or did he, following the suggestions of his own wicked heart, wilfully and knowingly commit a felony of another kind or upon a different subject?’ Foster, Crown L., p. 372.”
Under these tests the instruction was not a correct declaration of the law.
The instruction is abstract. The conspiracy was not to rob Black on the 14th, and on no other day; and while he was hauling cotton, and in no other way. The conspiracy was to rob Black, and the time and place of doing- so was a mere detail. Indeed, there had been two plans to rob Black, and both had failed, but the failure in neither case was due, in whole or in part, to the withdrawal of any conspirator from the conspiracy. The failure in the first instance was due to the fact that Black did not haul his cotton to the gin where the conspirators expected him to haul it. The second plan miscarried because there were too many people on the road.
Karnes was not to actually participate in the robbery, according to the second plan. He was not to be present. He was only to wait at an appointed place, and his mere failure to keep the appointment would not support a finding that Karnes had abandoned the crime, and that Dill had notice thereof, and there was no other •testimony in the record upon which to submit that question. The crime was committed with a pistol Karnes had provided for the purpose, and on the morning following the time when its commission had been agreed upon.
Dill testified that Karnes’ explanation of his early departure for home was that his “nerve” had failed him, which was, of course, no legal excuse for his prior participation.
We recognize and concede the right of the jury to accept such parts of Dill’s testimony as they believed to be true, and to reject the parts believed to be false; but we think there is no reasonable interpretation of the testimony from which the jury could have found that Karnes withdrew from the conspiracy and notified Dill of that fact. He was either guilty from the beginning of the conspiracy until the spoils were divided, or he was never a party to the conspiracy at all; and we think no error was committed in refusing to give the instruction set out above.
We think the testimony was legally sufficient to support that of the accomplice Dill; and it was, of course, a question of fact for the jury to pass upon its truthfulness, as well as the testimony tending to establish an alibi; and, as we find no error in the record, the judgment is affirmed. | [
48,
-51,
-88,
-97,
58,
-28,
42,
-72,
-14,
-32,
-12,
82,
-55,
94,
1,
53,
-91,
93,
85,
121,
-60,
-109,
23,
97,
-14,
115,
-37,
-59,
-79,
75,
62,
-43,
0,
36,
-54,
25,
102,
72,
97,
94,
-114,
-127,
-95,
-62,
89,
0,
48,
111,
116,
74,
-31,
62,
-21,
42,
60,
94,
41,
44,
79,
43,
72,
112,
-112,
15,
-17,
22,
-93,
6,
-98,
7,
88,
28,
-100,
21,
1,
104,
115,
-76,
-122,
-44,
77,
-103,
12,
98,
98,
32,
-100,
-87,
-84,
-120,
-2,
118,
-107,
-89,
8,
72,
66,
-52,
-74,
-97,
106,
85,
62,
-16,
-9,
93,
53,
104,
3,
-49,
-76,
-111,
13,
52,
-58,
-69,
-53,
37,
36,
117,
-51,
34,
92,
85,
113,
-109,
-121,
-47
] |
Humphreys, J.
Appellant instituted suit against George Holderby in the chancery court of Jackson County to enforce a mechanic’s lien for repairing a certain automobile. George Holderby had left the State, and service was obtained upon him by warning order.
■ Appellee, J. G. Edwards, filed an intervention claiming a paramount lien to that of appellant on said automobile, under an attachment proceeding.
A statement of facts relative to the institution of the suits and filing the lien was agreed upon, and is as follows:
“It is agreed that J. G. Edwards, the intervener, filed his suit against the defendant, George Holderby, in the Jackson Circuit Court, on May 14, 1921, for debt by contract, and, ancillary to said action, he filed on the same date his affidavit for general attachment, and the same was issued-out of said court on said May 14, 1921, and the writ of attachment was levied on the Chandler car (the property in controversy between these parties), together with other property in Jackson County, Arkansas, on the same date. That the plaintiff, L. O. Umsted Auto Co,. on May 18, 1921, filed its itemized statement of account with the circuit clerk of Jackson County, claiming his mechanic’s lien on the car referred to, and on June 24,1921, brought this suit to enforce said lien, that, upon filing of this suit to enforce such lien ag-ainst said defendant, Georg-e Holderby, the plaintiff filed its affidavit for a warning order against said defendant on June 24, 1921, which was issued on said date, and duly published as required by law for constructive scrviee. . That, in point of time, the suit of the intervener in the circuit court of Jackson County and his attachment therein ancillary thereto was four days before the filing of the account of the plaintiff with the circuit clerk of Jackson County, and about forty days before the filing of this suit. That the plaintiff, L. O. Umsted Auto Co., after having performed the labor and furnished the materials for the repair of said automobile, had voluntarily parted with, the possession of the chattel, delivering it to the owner (then owner, G-eorge Holderby, the defendant herein).”
The canse was submitted upon the agreed statement of facts set out above and testimony adduced tending to show where G-eorge Holderby resided, which resulted in a finding by the court that Holderby was not a resident of Newport, Jackson County, within ‘the meaning of 6871 of Crawford & Moses’ Digest, at the time of filing the account for repairs with the circuit clerk of said county, and a decree dismissing the bill of appellant for want of equity, from which is this appeal.
Section 6871 of Crawford & Moses’ Digest is as follows: “If tlie lien-holder has voluntarily parted with possession of any such property upon which he has a lien under the provisions of this act, he may still avail himself of such lien, within ninety days after such work or labor is done or performed, or materials furnished, by filing with the clerk of the circuit court of the county in which the debtor resides a just and true itemized account for the demand due, after allowing all credits, and containing a description of the property to be charged with said lien, verified by the affidavit of the lien-holder; provided, that the time set out herein for filing liens shall apply only to motor-propelled vehicles, and shall not affect the time for filing such liens in other cases as now provided by law.” The record reflects, according to the weight of the evidence, that G-eorge Holderby owned a home at Newark where lie and his family resided'; that he made Newport his headquarters for business purposes, and spent most of his time there, renting a room by the month for occupancy in one or the other of- two hotels in Newport; that he called Newark his home, and, when going to see his family, always spoke of going home; that he paid his poll-tax in Independence County, and voted at Newark; that he did not abandon or separate himself from his family, but, on the contrary, contributed toward their support.
The best test of one’s residence is the place of abode of his family, especially where he spends any part of his time with them. It would be an anomaly in the law to say one resided elsewhere than in the home of his fam-. ily, simply because his business detained him most of the time in another locality. The place where the debtor resides, as used in section 6871, supra, means his home, not some place where he happens to be sojourning. Under this construction of the statute, appellant preserved no lien for repairs made upon said automobile by filing its account in the office of the circuit clerk of Jackson County. Prior to leaving Arkansas, George Holderby, its debtor, was not a resident of, but merely a sojourner in, Jackson County. In cases like this, where the lien-holder parts with the possession of the chattel repaired, the only way to preserve the lien is to file an itemized account in the county where the debtor resides. The lien cannot be preserved without a strict compliance with the statute creating the lien. Cyc. vol. 27, p. 132; Doke v. Benton County Lumber Co., 114 Ark. 1; Daily v. Arkadelphia Milling Co., 126 Ark. 405. Had appellant retained possession of the automobile, or, after parting with the possession thereof, had it filed its account within the time and at the place fixed by the statute, the lien thus preserved would have taken precedence over an attachment lien and judgment acquired before the account was filed. Having failed to retain possession of the automobile, or to preserve its lien by filing its account for repairs thereon at the proper place, it had no lien, and was in no position to contest priority of liens with ap-pellee. It was conceded that George Holderby was a non-resident of the State at the time .the attachment proceedings were instituted, and that he was the owner-of an automobile in Jackson Couidy. An attachment proceeding may be prosecuted in any county where the property of the non-resident may be found. Section 502, Crawford & Moses’ Digest. Tlie attachment proceeding was in accordance with the statute, and the judgment obtained therein was impervious to collateral attack.
No error appearing, the judgment is affirmed.' | [
-78,
77,
-8,
-3,
-54,
-96,
58,
58,
-47,
2,
101,
-41,
-3,
-59,
20,
37,
-29,
45,
117,
106,
-27,
-77,
2,
122,
-14,
99,
-23,
93,
-77,
93,
100,
86,
76,
56,
-62,
-111,
-62,
-128,
-123,
30,
-50,
0,
41,
-20,
89,
80,
32,
-7,
80,
13,
85,
-89,
-61,
46,
117,
107,
109,
40,
-23,
1,
-64,
112,
-118,
69,
125,
87,
49,
100,
-102,
49,
74,
28,
-112,
-110,
-116,
-7,
51,
-74,
66,
116,
97,
-103,
8,
102,
102,
2,
33,
-49,
-88,
-72,
14,
-10,
31,
-90,
-14,
96,
-117,
11,
-65,
-99,
122,
16,
-122,
-10,
-4,
69,
20,
40,
3,
-117,
-106,
-93,
5,
80,
-100,
11,
-17,
-113,
52,
113,
-17,
-96,
93,
71,
115,
-101,
-121,
-78
] |
Wood, J.
On the 14th of October, 1916, W. H. Casteel, a merchant at Buffalo, Arkansas, entered into a verbal contract with the White River Grocer Company (hereafter called company) by which he turned over to the company his stock of goods and accounts due him for merchandise. Casteel at that time owed about $2,750, which he was unable to pay. He owed to the company about $400. His stock of goods invoiced $1,525. It was the understanding between- Casteel and the company that the latter should account to the creditors of Casteel for the amount of the invoice, less ten per cent.
This action was instituted by Casteel against the company. He set up in his original complaint the contract, as above stated, and alleged that the company was to collect the accounts promptly, without cost to Casteel, and, after paying the debt to itself and the other debts, was to turn all uncollected accounts back to Casteel; that the company had settled all the debts owing by Casteel for about fifty cents on the dollar, and had collected a large sum of money on the accounts for merchandise due him, for which it had refused to account; that it had suffered such of the notes and accounts as were due but not collected to become outlawed — barred by the statute of limitation. He prayed for an accounting, and judgment for the amount of the notes and accounts which the company had negligently permitted to become barred by limitation. By an amendment to his complaint, Casteel alleged that the contract was that both Casteel and the company were to collect the notes ,and accounts due Casteel without cost to Casteel; that he, in good faith, was proceeding to collect the accounts, when the company, without right, notified his debtors not to pay him, and that’ therefore he was unable to make collections; that the company negligently failed to make collections, and this conduct of th,e company amounted to a conversion by the company of Casteel’s notes and accounts, and that it was liable to him, on an accounting, for the whole amount of the uncollected accounts.
The company answered the complaint, and admitted that the stock of goods, notes and accounts of Casteel were turned over to it, as alleged, but it denied that the notes and accounts were to be collected without cost to Casteel. On the contrary, it alleged that the notes and accounts were to be collected by the company as far as possible. It alleged that it took charge of the goods, the notes and accounts, under the contract, and sold the goods for the best price obtainable, eighty cents on the dollar, and turned the notes and accounts over to one S. E. Denton for collection, who collected wliat was possible, and the company applied the entire proceeds on the debts of Casteel, including its own deíbt, pro rata. But the sum realized was not sufficient to pay the creditors of Casteel, and that he was still due the company the sum of $227.50. It alleged that Casteel, after he had turned over his notes and accounts to the company to be applied on this indebtedness to his creditors, continued to collect same himself and to apply the proceeds so collected to his own use, in violation of his contract with the company. It alleged, among other things, that many of the notes and accounts were denied by the parties who Casteel claimed were thus indebted to him; that many produced proof that they had paid'same to Casteel. It alleged that the notes and accounts were largely worthless, and that the company realized only a small per cent, in the collection of the same, and that such amount, after paying a reasonable fee for collection, together with the proceeds from the sale of the stock of goods, was applied to the payment of Casteel’s debts, and the entire sum was sufficient to pay only slightly over fifty cents on the dollar of those debts. The company, by way of cross-complaint, set up that Casteel was indebted to it in the sum of $227.50, as above stated, for which it prayed judgment.
The prayer of the complaint for an accounting to be had before a master was granted. While the record is silent as to whether the master to be named was agreed upon by the parties, the master’s report shows that Z. M. Horton was named as special master, and that the cause was referred to him to state an account. His report shows that he took the depositions of Casteel and two of his brothers and of Harrison Gaines and James Carter, for Casteel, and the depositions of Seth Matthews and S. E. Denton for the company, and, after considering these depositions, with all the exhibits and pleading's in the cause, he made certain findings of fact to the effect that the stock of goods and books and accounts, etc., which Casteel had on hand at 'his store in Buffalo, Arkansas, were turned over to the company, which undertook to collect in the matter of winding up the business of Casteel, according to the contract between them. The master found that the company had used due diligence in its effort to collect these accounts, and that, after calling to its assistance S. E. Denton of Cotter, one of the best of collectors, it realized the sum of $178.92, which, added to the sum of $1,372.68 realized from the stock of goods, it applied to Casteel’s debts; that the amount paid only about fifty-five per cent, of the principal of those debts. The master found that the company had acted in good faith in carrying out the contract; that many of the accounts turned over to the company had not been collected; that many of these accounts were against near relatives of Casteel, and that some of them were denied by the alleged debtors-; that the company, having accounted to the creditors for all sums that had come into its hands, was not liable to Casteel in any sum.
The report of the master recites that the attorneys for the respective parties argued the case before him by brief. His report was made at the April term of the court, 1921. After the report of the master was filed, the depositions of the two brothers of Casteel were re taken, and also Casteel took tlie deposition of one Bonner. In their original depositions the brothers of Cas-teel testified that they were present during the conversation between Will Casteel and Seth Matthews, the representative of the company, in which conversation they entered into the verbal contract out of which this action arose. They were called as witnesses to the agreement, and testified as to what was said. The testimony was elicited by question and answer. They stated, in substance, that the contract was that the company was to take the stock at ten per cent, discount and take tlhe accounts, and each one was to collect on the accounts to cover the indebtedness, and the balance of the accounts were to he turned hack to their brother, Will Casteel.
In the depositions of James and Elbert Caste'el that were retaken after the filing of the master’s report, both stated that Will Casteel and the company were to collect on the accounts, and there was to he no expense to the collections: that neither he nor any one else was to have any pay for making the collections.
The testimony of Bonner was to the effect that the accounts due Casteel were turned over to the company for joint collection. The company was to hold the hooks,' and the amount collected, without any discount of fees for collection, was to he credited on Casteel’s debt. Casteel stated at. the time that the accounts were all g'ood, and that he could collect them all.
The testimony of Matthews, who conducted the negotiations for the company, was to the effect that the company was to take over the notes and accounts, collect what it could, and apply the same on the indebtedness of Casteel. The creditors found out that the company-was to settle up the accounts, and he took it up with the creditors and got their permission to act as trustee and collect the accounts. ' Nothing was mentioned about Casteel’s collecting or about the company’s collecting. The company was to take them and try to collect what they could to apply on his indebtedness, after tlxe books and the accounts were taken over, Casteel never made any effort to assist the company in collecting the accounts, and never inquired about what success it had. The collector, Denton, reported that the parties from, time to time would say that they had paid Casteel, or that they didn’t owe the debt, or something- to that effect. Witness wrote all the debtors on the list furnished by Casteel, and half of them denied the debts, and others would not pay. He used all the means he knew, consistent with good business policy, to collect them. It was shown on behalf of the company, and Casteel himself testified, that, after he had turned over the books and accounts to the company, lie collected some money from his creditors, and, instead of turning fhe money over to Matthews, he applied the same to a personal debt on which he was surety. Casteel testified, as to this transaction, that, while he was in business in Buffalo, he had signed a note with some person as surety, and before the note came due the principal brought the money to him to pay the note. He put the money in the drawer, and when he made the deal with the company he forgot about the money to pay the note being in the. drawer, and he took the first money he'collected from the accounts that had been turned over to the company and paid off the note. The company, after that transaction, notified the list of debtors not to pay him the amounts of the accounts.
Denton testified that he was a justice of the peace, and also a licensed lawyer, and made a business of collecting-claims; that he had had a good deal of experience along this line. He charged for collecting accounts of the kind turned over to him the sum of 25 per cent, commission on the amount collected. The Casteel accounts were turned over to him by Matthews for collection. He- stated that he did all that he could do to collect-the same, and out of the entire list he collected only $528.40. Two-thirds of them denied that they owed anything. . After the accounts were placed in his hands, Casteel never made any request to turn any of - them over to him to collect.. He testified as to tlie efforts that he made to collect the accounts. He stated that, in going over the' accounts with Casteel, when he came to his mother’s account, Casteel said to let that alone, and witness wrote Elbert Casteel ten or fifteen letters concerning his account, and never heard from him. After doing all he could to collect the accounts at 25 per cent, commission, and finding that he could not make expenses, he told the company he would keep them a while longer and do the best he could at 50 per cent, commission. After deducting his commission, he turned over to the company the sum of $178.92.
The above are substantially the facts upon which the court rendered a decree in favor of the appellee, from which is this appeal.
It is well settled that, if a trustee violates the rights of a beneficiary by neglect or misconduct, the beneficiary may hold the trustee liable for the damage caused. Clark v. Spanley, 122 Ark. 366.
The issues presented by this record are purely issues of fact. Appellant contends that, under the contract, he and the company were each to have the right to collect the accounts due him, and, after the debts were paid, the amounts uncollected were to be turned back to appellant. He further contends that, after the accounts had been turned over to the company, he proceeded, in good faith, to make all the collections he could, until the company made it impossible for him to proceed further by notifying his debtors not to pay him, but to pay the company, and that thereafter the company negligently failed to collect the accounts, ninety per cent, of which lie could have collected.
The appellant contends that the preponderance on these issues is decidedly in his favor. If numbers alone were the criterion in determining whether the preponderance is in appellant’s favor, we could agree with learned counsel. But, wdiile it is proper to consider numbers, yet that is not the test. The court must- take into consideration' the interest of the parties, the relationship' of witnesses to them, the reasonableness or unreasonableness of the testimony, and all the circumstances detailed in evidence. When this is done, we are convinced that the findings of the chancellor, to say the least, are not clearly against the preponderance of the evidence. The undisputed testimony shows that the company had the consent of the other creditors of appellant to act as trustee in winding up the affairs of the appellant, that is, collecting the accounts due him and using all assets available in the 'liquidation of his debts. It is unreasonable to conclude that the company would have entered upon a trust of this kind for the creditors, as tvell as the appellant, if the understanding was that appellant, the bankrupt, was to have the same control over the books and accounts that the company had. Doubtless the other creditors of appellant would not have consented to any such arrangement.
We do not discover any testimony to warrant the conclusion that the company did not exercise all the diligence required of it to collect the accounts in its hands. A decided preponderance of the evidence shows that it exercised all the diligence that any reasonable person under the circumstances would exercise to make the collections. We do not find any neglect or misconduct whatever on the part of the company that will render it liable to the appellant.
The trial court was correct in so holding. Its decree is therefore affirmed. | [
50,
-17,
-104,
-115,
-118,
104,
42,
-102,
91,
11,
37,
-45,
-51,
-63,
20,
121,
-25,
125,
85,
122,
-28,
-109,
5,
43,
-46,
-45,
-79,
-43,
-80,
-49,
-28,
-35,
-52,
48,
-54,
-107,
-29,
-64,
-55,
-36,
30,
0,
59,
-20,
-3,
0,
48,
-103,
20,
75,
85,
38,
-5,
42,
54,
-53,
107,
44,
109,
41,
-15,
-16,
-94,
-115,
-17,
23,
-111,
38,
-102,
7,
-56,
12,
-128,
119,
9,
-23,
123,
-76,
70,
84,
5,
-99,
8,
98,
102,
66,
1,
-21,
-104,
-84,
47,
-37,
-99,
-89,
-48,
104,
3,
8,
-66,
-100,
94,
18,
-89,
-2,
-26,
-99,
17,
104,
3,
-113,
-42,
-94,
-97,
-84,
30,
7,
-21,
-90,
48,
81,
-49,
-78,
93,
15,
123,
3,
-114,
-43
] |
Humphreys, J.
This suit was instituted by appellant against appellee in the circuit court of Poinsett County, to recover the value of appellant’s sawmill, which was destroyed by fire alleged to have originated from sparks blown from a large burning sawdust pile on the sawmill property belonging to appellee. It was alleged, in substance, that appellee allowed a large pile of sawdust to accumulate on its premises, which caught on fire, and which appellee suffered to smolder and burn for many months, and until escaping sparks therefrom were carried by the wind to appellant’s sawmill in such quantities that they, set fire to arid destroyed said mill, to the damage of appellant in the sum of $50,000.
Appellee filed an answer, denying the material allegations of the complaint.
The cause was submitted upon the pleadings and testimony, which resulted in an instructed verdict for appellee and a consequent judgment dismissing appellant’s complaint, from which an appeal has been duly prosecuted to this court.
The facts revealed by the record are, in substance, as follows: Prior to the destruction of appellant’s mill by fire appellee purchased a sawmill, located at Lepanto, and immediately leased same to Walter Rogers for one year, with the privilege of renewal for four years, at a* rental of $100 per month, payable monthly in advance. Rogers was operating the mill under the lease at the time appellant’s was destroyed. In operating the3 mill he employed his own labor, bought his own material, and used his own methods in producing the output. He was required to pay all taxes and to preserve and maintain the leased plant and equipment in good .condition and repair, and to replace all broken parts. It is unnecessary to set out the lease in full, as only four other provisions therein are made pertinent to the issues involved on this appeal by the contentions of appellant. The four provisions referred to are as follows: first, either party-may, at any time, terminate the contract upon thirty days’ written notice to the other; second, Rogers is bound to “manufacture, on said leased premises and properties, ash squares, ash dowels, and ash handles, in quantity and quality and according to the specifications and prices submitted and to be submitted from time to time by said National Handle Companythird, “it is further agreed that, in default of either one or more of said payments of rent, or in the performance of any of the agreements herein made by the said Rogers, the said National Handle Company may, at its option and without notice to said Rogers, re-enter and take possession’of said leased premises and properties, without being required to demand the same, * * fourth, “it is further agreed that the said Rogers shall allow nothing obnoxious to exist on said premises, and will, when requested by the lessor, abate all such offensiveness at his' own expense, and will suffer nothing on said premises' that will invalidate any policy of insurance the said lessor may have thereon, unless consent in writing of said lessor be first obtained.”
4t the time the lease was executed there was no sawdust pile on the premises. It was accumulated during the time Rogers operated the mill. It was about forty feet high, and covered a space two or three times as large as the courthouse in said county. After the pile’ of sawdust had accumulated, some time during the year * of 1919, R. 8. Mitchell, who was at the time operating appellant’s mill, went to C. H. Windt, the manager of the southern division of the National Handle Company, and called his attention to the sawdust pile, and told Mm it would endanger both mill properties unless moved. He testified that Windt told him he was going to build some kind of a burner to burn it up. Subsequent to the conversation the sawdust pile caught on fire, and, while Rogers and his employees tried to put it out, they never succeeded in entirely doing so. It smoldered for a num ber of months, and finally sparks therefrom were blown into appellant’s mill in snch numbers that it was set on fire and destroyed. The testimony warrants the inference that Windt, the manager of the handle company, knew that the sawdust pile was and had been on fire for .a number of months. Windt admitted that when he leased the mill to Rogers they both knew that the sawdust pile would be created in the operation of the mill.
Appellant’s first contention for reversal is that the trial court erred in holding that Rogers was an independent contractor, and for that reason appellee was exempt from liability on account of Rogers’ negligence in the operation of the mill. The argument is made that, because appellee reserved the right in the lease to control the kind, quality and quantity of the output according to specifications and prices submitted and to be submitted by it from time to time, the right to cancel the lease and take possession of the property in case Rogers should create obnoxious and offensive conditions, and because it advanced money to meet payrolls made out on National Handle Company payroll forms, the relationship of master and servant was established between 0 appellee and Rogers, and that appellee became responsible for the negligent acts of Rogers. In the case of Harger v. Harger, 140 Ark. 375, this court construed a coal mine lease, almost similar to this in essentials, as constituting Wallace Harger an independent contractor. Facts' were proved outside the contract in that ease, in an attempt to establish the relationship of master and servant between the coal company and Harger, equally as potent as the facts proved in the instant case in an attempt to establish such relationship between the handle company and Rogers. In that case Harger testified that he was an employee of the coal company, and his name appeared on the payroll as . an employee. The ■ payrolls were made ou-t on the stationery of the coal company. The circumstances just related were held to be entirely consistent with the relationship of lessor and ■ lessee. None of the reservations by the lessor in the lease, in the instant ease, and none of the circumstances proved outside of the contract, are inconsistent with the relationship of lessor and lessee, when measured by the test adopted and announced in the case of J. W. Wheeler & Co. v. Fitzpatrick, 135 Ark. 117, which is as follows: “An independent contractor may be defined as one who, in the course of an independent occupation, prosecutes or directs the work himself, using his own methods to accomplish it, and represents the will of the company only as to the result of the work.” 2 Elliott on Railroads, p. 863, § 1063; 2 Words and Phrases, p. 1034. Walter Rogers employed his own labor, bought his own material, and conducted the business according to his own methods. The National Handle Company had no interest save in the output which it purchased.
Appellant’s next insistence for reversal is that ap-pellee is liable even though the relation of lessor and lessee existed between it and Rogers under the contract. The argument is made that, because appellee reserved the right to cancel the contract and take possession of the property, if Rogers made default in the performance of any of the agreements in the contract, and failed to exercise that option when Rogers created the sawdust pile which caught on fire, rendered appellee liable. The fight to annul the contract and take possession of the property if Rogers permitted anything ¡obnoxious to exist on the premises, or suffered anything thereon which would invalidate the insurance, was purely personal and not reserved for the benefit of third parties. In order to render an employer liable to a third party for an injury 'resulting from the negligence of an independent contractor, it must appear that the employer retained control over the work. Reserving, the right to enforce forfeitures will not of itself render an employer liable for the negligent'acts of an independent contractor. St. L. I. M. & S. R. Co. v. Gillihan, 77 Ark. 551. The same rule, of course, governs as between third parties and lessors to independent lessees.
Appellant’s next and last insistence for reversal is that appellee is liable for the negligence of its independent lessee because the creation of the pile of sawdust was a natural-and necessary result of the operation of the mill. Even so, the piling of sawdust is not a nuisance per se, and unlawful. The doing of a lawful thing which is the natural result of the operation of a business cannot fix liability upon the lessor as an original wrongdoer. It may be that the ignition of the sawdust converted the sawdust pile into a nuisance, but, if so, it does not appear from the evidence that the ignition thereof was a natural and necessary result of the operation of the business. The thing itself must be unlawful and the necessary result of the performance of a lease before a lessor can be held liable to third parties for the negligence of an independent lessee. Martin v. Railway Co., 55 Ark. 521.
No error appearing, the judgment is affirmed. | [
80,
120,
-72,
-116,
-104,
-96,
106,
-104,
90,
33,
-75,
83,
-1,
-94,
9,
107,
-25,
125,
85,
58,
71,
-77,
19,
99,
-110,
-77,
81,
-41,
-72,
74,
-11,
86,
72,
53,
74,
21,
-62,
-112,
-51,
84,
78,
-123,
43,
-24,
-39,
64,
48,
-65,
112,
75,
113,
30,
-5,
44,
20,
73,
13,
47,
111,
43,
80,
56,
-70,
28,
31,
22,
1,
7,
-100,
17,
72,
44,
-112,
49,
0,
-24,
115,
-92,
-58,
116,
3,
-119,
8,
102,
102,
2,
13,
-25,
-52,
-104,
-90,
-2,
61,
-89,
-95,
40,
27,
72,
-65,
29,
112,
80,
23,
106,
-19,
-36,
28,
108,
-127,
-58,
-108,
-73,
-113,
44,
-100,
51,
-21,
3,
48,
117,
-33,
-86,
92,
7,
49,
-101,
-33,
-37
] |
Humphreys, J.
Appellee instituted suit against appellant in the circuit court, of Hempstead County to recover $180 for goods sold and delivered to the Hope Oil Trust, a concern doing business under a written declaration commonly known as the “Massachusetts trust.” The suit is based upon an allegation that the Hope Oil Trust is a partnership, and that appellants are members thereof, and as such are individually liable for the indebtedness of the .concern. The six appellants first named were denominated trustees in the declaration. They filed a separate answer, admitting the amount of the account and that the goods were sold to the Hope Oil Trust, but denying individual liability, upon the ground that they are exempted from liability under paragraph 21 of the declaration, which in part is as follows:
“Every act done, power exercised, or obligation assumed by the trustees, pursuant to the provisions of this agreement, or in carrying out the trusts herein contained, shall be held to be done, exercised, or assumed, as the case may be, by them as trustees, and not as individuals, and every person or corporation contracting with the trustees, as well as every beneficiary hereunder, shall look only to the fund and property of the trust for payment under such contract, or for the payment of any debt, mortgage, judgment, or decree, or the payment of any money that may otherwise become due or payable on account of the trusts herein provided for, and any other obligation arising under this agreement, in whole or in part; and neither the trustees nor the shareholders, present or future, shall be personally liable therefor.”
The two last named appellants are shareholders, and 'filed a separate answer denying liability, upon the ground that, under the terms of the declaration, they are cestuis que trust. They claim exemption under paragraph 21, quoted above, and paragraphs 9 and 20, which are as follows: “9. The trustees under this agreement shall have the sole legal title to all property, in any part of the United States of America, or in any foreign country, at any time held, acquired or received by them, as trustees under the terms of this agreement, or in which the shareholders under this agreement shall have any beneficial interest as such shareholders, and they shall have and exercise the exclusive management and control of the same, in any manner that they shall deem for the best interest of the shareholders, with all the rights and powers of absolute owners thereof.”
“20. Shareholders hereunder shall not be liable for any assessment, and the trustees shall have no power to bind the shareholders personally.”
Demurrers were filed to the separate answers, and sustained by the court. Appellants stood upon their answers and refused to plead further, whereupon the court rendered judgment against them, from which is this appeal.
The appeal involves the sole question of the personal liability of the trustees and certificate owners in the business operated under the trust declaration. The instrument is long, and it would unduly extend this opinion to set it out in extenso, a statement of the substance thereof being sufficient for the purposes of this cause. In short, the instrument reflects that trustees associated themselves together for the purpose of selling certificates of stock in the name of Hope Oil Trust, and of using the proceeds for investment in securities and enterprises for the equal benefit of the shareholders. The trustees reserved the entire management and control of the business in themselves, the right to hold the title to all the property and dispose of same, and to elect their own successors in case of the resignation or death of either one of them. The indenture, in effect, provided that the trustees should be masters of the trust property, as well as the business, without suggestion, supervision, or interference on the part of the stockholders. No authority or power whatever was conferred upon the stockholders. In fact, all authority and control of the property and business was withheld from them. No provision was even made for a meeting of the stockholders at any time for any purpose. Under the terms of the declaration they were non-participants., save to share in dividends and profits that might be declared and distributed among them by the trustees. The paragraphs of the declaration exempting the shareholders from personal liability have been set out in full.
The statutes of this State provide for and regulate two kinds of business concerns, limited partnerships and corporations. The other business organizations operate in this State under the general law of the land, not under statutory protection and restrictions. General partnerships, joint ¡stock companies, business trusts, and other associations are not prohibited from doing business in this State. With these preliminary remarks we proceed at once to determine whether the trustees and shareholders in the Hope Oil Trust are individually liable for the account sued upon. We will first determine the liability of the trustees.
A general rule in the law of trusts is that a trustee is a principal, and not an agent for the cestui que trust. It follows from this rule that the trustee and not the cestui que trust is personally responsible for an indebtedness growing out of transactions in relation to the trnst estate. The creditor’s guarantee is the personal liability of the trustee. We see no reason why the trustees here should be exempt from this general rule. Their declaration exempting them from personal liability cannot prevent individual liability from attaching, as the law fixes the liability of trustees. According to the declaration, they are self-appointed trustees, with absolute authority over the trust business and property. The rule announced above is supported by the decided weight of authority, as will be seen by reference to the list of cases cited on page 46 of Sears on Trust Estates. It was said by the Supreme Court of the United States in the case of Taylor v. Davis, 110 U. S. 330, that: “When a trustee contracts as such, unless he is bound, no one is bound, as he has no principal. The trust estate cannot promise, the contract is therefore the personal undertaking of the trustee. * * * If a trustee contracting for the benefit of a trust wants to protect himself from individual liability on the contract, he must stipulate that he is not to be responsible, but' the other party is to look solely to the trust estate.” The trustees, under the terms of the indenture, interposed themselves as a shield between the stockholders and creditors, and for that reason are individually liable.
■ We next proceed to a determination of the liability of the shareholders. The declaration not only exempts the shareholders from individual liability in specific terms, but shears them of all control and management of the business. Paragraph 9 of the indenture makes the trustees absolute master of the property and business. The only right accorded to the holders of certificates of stock is to share in profits or dividends. They are in the attitude of one lending money to a partnership for a-share of the profits in lieu of interest.’ A reading of the trust instrument in its entirety has convinced us that the shareholders are not associated with each other and the trustees for the purpose of conducting a business in person or through agents for a profit. There is nothing in the instrument showing an intention on the part of the shareholders to enter into a copartnership, or an intention on the part of the trustees to cooperate with the shareholders in the conduct of the business. The test, after all, in determining whether a business is a partnership, is to ascertain whether the parties intended one. Buford v. Lewis, 78 Ark. 417; Wilson v. Todhunter, 137 Ark. 80; Mehaffy v. Wilson, 138 Ark. 281. Under the terms of the instrument the shareholders are cestuis que trust, and the instrument, in so far as they are concerned, creates a pure trust. Common-law trusts are generally recognized, and have been upheld by the weight of authority. Williams v. Milton, 102 N. E. 355; Simson v. Klipstein, 88 N. J. Eq. 229; Rhode Island Hospital Trust Co. v. Copeland, 39 R. I. 193; Home Lumber Co. v. Hopkins, 107 Kan. 190; Wills Stone Mercantile Co. v. Grover (N. D.), 41 L. R. A. 252; Mayo v. Montz, 151 Mass. 481; Foster v. Barton, 215 Mass. 31. Appellee insists that this court is committed to the doctrine that immunity from individual liability to shareholders in a business organization can be accomplished in Arkansas through the medium only of limited partnerships and corporations. In support of this contention two Arkansas cases are cited, in which the court held the members of the organizations liable as partners. Doyle-Kidd Dry Goods Co. v. Kennedy, 154 Ark. 573; Baker-McGrew Co. v. Union Seed & Fertilizer Co., 125 Ark. 146 The declaration of trust in each of these cases was quite different from the declaration in the instant case. The question as to whether a partnership or strict trust is created by an indenture must depend on the language and provisions of the instrument involved in each case. In the Doyle-Kidd case this court ruled that the instrument created a joint stock company. There is a marked difference between a joint stock company and a pure business trust. In a joint stock company the managers are agents for'the-shareholders. Not so in a business trust. The managers are principals, and the shareholders are ces-tuis que trust. In the Baker-McGrew case the indenture provided for shareholders to meet and elect trustees. In this way they were in a position to control and manage the 'business and property. We have hot overlooked the case of Greene County v. Smith, 148 Ark. 33. In that case the question of the liability of shareholders to creditors or thirds persons was not involved, the only question involved being one of taxation.
The instrument in the instant case created a pure trust, in so far as appellants P. M. Simms and T. M. Kinser are concerned, and they are immune from individual liability.
The judgment is affirmed as to the trustees, and reversed and the cause remanded as to Kinser and Simms, with directions to overrule the demurrer to their answer and to proceed in accordance with this opinion. | [
50,
108,
-8,
44,
58,
-16,
58,
-102,
-63,
-81,
39,
83,
-3,
-31,
17,
61,
-27,
125,
101,
122,
-57,
-77,
3,
80,
-63,
-69,
-103,
-51,
-80,
79,
-26,
-34,
72,
56,
-54,
21,
-54,
-126,
-29,
92,
-114,
9,
-86,
100,
121,
74,
48,
99,
18,
67,
97,
-100,
51,
33,
24,
107,
-55,
44,
107,
53,
65,
120,
-88,
-59,
25,
7,
0,
101,
-104,
115,
-22,
46,
-112,
112,
41,
-88,
123,
-74,
-62,
-12,
11,
25,
9,
38,
98,
-127,
33,
-11,
-68,
-68,
46,
-66,
-115,
-57,
-14,
104,
50,
75,
-73,
-100,
88,
4,
-124,
114,
-18,
-108,
30,
108,
5,
-49,
-106,
-95,
13,
-4,
-104,
3,
-17,
-77,
48,
69,
-35,
-78,
92,
71,
60,
23,
14,
-14
] |
Humphreys, J.
Appellees instituted suit against appellant in the circuit court of Cross County to recover $600 and interest, the face value of a fire insurance policy, and statutory penalty of $72, -and a reasonable attorney’s fee. The policy was issued by appellant to ap-pellee, Charlie Hays, and contained a loss payable clause in favor of appellee, Wilkinson & Carroll Cotton Company, as its interest may appear. Wilkinson & Carroll Cotton Company held a mortgage from Charlie Hays on the property. It was alleged that on or about April 1, 1921, during the life of the policy, the building was totally destroyed 'by fire; that appellee,- Charlie Hays, was indebted to the Wilkinson & Carroll Cotton Company in the sum of $880 and interest secured by mortgage upon said property; that, in addition to the right of recovery on the policy, appellees-were entitled to recover twelve per cent, penalty and a reasonable attorney’s fee. Appellant filed an answer denying any liability under the policy upon the ground, first, that ap-pellees failed to furnish proof of loss; second, that the building was insured as a dwelling, when it was a hall; third, because the building was unoccupied and vacant prior to and at the time it burned, contrary to certain provisions in the policy.
The cause was submitted upon the pleadings, testimony introduced by the parties, and instructions of the court, which resulted in a judgment against appellant for $600 and interest, and penalty of $72 and an attorney’s fee of $150, from which is this appeal.
Appellant’s first insistence for reversal is that there was no waiver of failure to furnish proof of loss as required by the policy. The policy contained a provision requiring written proof of loss by the insured if the building should be injured or destroyed by fire. The loss clause specified what the written notice of loss should contain. The written notice complying with the loss clause was not given by either the insured or the mortgagee. Immediately after the fire the insured orally notified R. C. Dalton, the agent' of appellant at Parkin, of the loss. The mortgagee, Wilkinson & Carroll Cotton Company, heard of the fire, and on April 1 and 4, 1921, notified- the East Arkansas Land & Abstract Company, of-Wynne, Arkansas, of the loss, and called its attention to the fact that the amount due on the policy was payable to it by special provision in the policy. The East Arkansas Land & Abstract Company was the agent of appellant with power to issue policies and collect premiums thereon. It issued the original and renewal policies to Hays on the property in question and delivered same to him through R. C. Dalton, who collected the premiums on both policies. When the land company received the letter of the cotton company notifying it of the fire, it replied claiming Hays liad not paid the premiums on the policies, although pressed by them- to do so. The letter contained the following paragraph:
“It will be necessary for some one to have a competent contractor to make an estimate of the cost of what it will take to rebuild the building, basing his figures on light material that was in the original building.”
The cotton company immediately notified the land company that it had a receipt for the .premium on the renewal policy, signed by R. C. Dalton. On the 16th day of April, 1921, the land company informed the cotton company that its representative, N. B. Martin, had made, two rinsuccessful trips to Parkin to see Hays, for the purpose of obtaining necessary information’to report the loss of appellant. Martin visited the premises, saw the ash-pile, and made the following request of the cotton company: “If you have some estimate made showing the labor, material, etc., necessary to replace the building, also the date the fire occurred, so that nroper report can be made to the company, I will endeavor to place this in line for adjustment.” The cotton company mailed the land company an estimate by a good firm of building contractors, showing the cost of labor, material, etc., necessary to replace the building, receipt of which estimate was dnly acknowledged by the land company. The letter containing the acknowledgment also contained the following paragraph: ‘£I have furnished the information to the adjuster, who has charge of this settlement. He was in Parkin last week, but at that time could find no one that lived in the house at the time of the fire, or any one that could give any information.” Immediately after being notified of the fire, the land company sent appellant a regular form of notice of loss and mailed a copy thereof to its State agent, R. M. Smith, who resided at Fayetteville. R. M. Smith employed T. R. Smallwood, an independent adjuster residing at Little Rock, to visit Parkin and investigate the loss. He called at the office of the land company and examined all the correspondence between the cotton company and the land company, and took possession of the estimate of labor, material, etc., necessary to replace the building, which had been furnished the land company by the cotton com-. pany. The adjuster spent a day at Parkin, and visited the premises. He was unable to find. Hays, and made no effort to see the cotton company, and made no request of either for further information concerning the loss.
We think the correspondence led the mortgagee to believe that appellant would adjust the loss and make a settlement without the necessity of making formal proof of loss under the loss clause in the policy. Appellant, through its agent, requested an estimate of the cost of replacing the building, from the mortgagee, accepted and placed same in the hands of its employed adjuster. The agent had the authority to make the request for and receive the estimate, for it had power to issue.policies and collect premiums. By vesting this authority in its agent, appellant conferred apparent authority upon said agent to adjust losses and waive proof of loss. Citi zens’ Fire Ins. Co. v. Lord, 100 Ark. 212; Concordia Fire Ins. Co. v. Mitchell, 122 Ark. 357; National Union Ins. Co. v. Crabtree, 151 Ark. 561. The facts in the instant case responsive to the issue of waiver bring it within the rule announced in Liverpool & London & Globe Ins. Co. v. Payton, 128 Ark. 528. In support of the rule and its application reference is also made to National Union Fire Insurance Company v. Whitted, 157 Ark. 515. Appellant insists, however, that under the terms of the policy the mortgagee of the property was simply an appointee to receive the loss, and that its rights were dependent upon whether the insured himself made proof of the loss, or was exempted therefrom by the conduct of appellant. It is unnecessary to determine the status of said mortgagee under the loss-payable clause in the policy, for, in the negotiations looking to settlement of the loss, appellant, through its duly qualified agent, treated the mortgagee of the property as a party in interest. After attempting to adjust the loss with the mortgagee, appellant cannot he heard to say said mort•gagee was not a party to the contract, and that therefore the negotiations with it were of no effect.
Appellant’s next insistence for reversal is that the policy covered loss by fire to a dwelling house only, and that the failure to occupy same for residential purposes avoided the policy by the express terms thereof, and that R. C. Dalton had no authority to waive warranty clauses relative to the occupation of the property as defined therein. The undisputed testimony showed that the building was constructed for a hall; that the upper part was leased to a lodge, and the lower part was used for public gatherings. Hays testified that he informed Dalton, when the first policy was written, that it was rented to and occupied by a lodge. R. C. Dalton was appellant’s licensed agent, residing in Parkin at the time the policies were written. He received the application for the policies, forwarded them, and, when returned, delivered them and collected the premiums for them. The undisputed testimony shows that he was endowed with authority to do this. Appellant was bound 'by such information as Dalton received during his employment concerning the character and occupation of the building. Capital Ins. Co. v. Montgomery, 81 Ark. 508. This court is committed to the doctrine that agents, possessing the authority Dalton had, waive warranties in policies relating to the title, character and occupation of the property insured by accepting applications for insurance, delivering the policies and collecting the premiums thereon. State Mutual Ins. Co. v. Latourette, 71 Ark. 242; Phoenix Ins. Co. v. Amusement Co., 63 Ark. 187; Phoenix Ins. Co. v. Fleming, 56 Ark. 64; Commercial Fire Ins. Co. v. Belk, 88 Ark. 507; Peopled Fire Ins. Assn. v. Goyne, 79 Ark. 315. The issue of fact as to whether R. C. Dalton, the licensed agent of appellant, knew that the building was a hall at the time the policy sued upon was issued was submitted to the jury for determination by instructing them as follows: “If you find from the testimony that R. C. Dalton, at the time this policy was issued and delivered, knew that the property insured was not a dwelling, and that he received this information from the plaintiff at the time the policy was requested, this knowledge is the knowledge of the company, and the provision' in the policy that the building should be occupied as a dwelling is waived.”
Appellant is therefore concluded by the adverse verdict of the jury upon that issue. That being so, the warranty clauses in the policy governing vacancies and the character of occupation are eliminated under the doctrine of waiver. In this view of the case it becomes unnecessary to discuss the alleged infirmities of the instructions given or the refusal of the court to give instructions bearing upon these questions. The instructions submitting the issue of whether appellant waived written proof of loss were more favorable than appellant was entitled to. The court should have held, as a matter of law, that written proof of loss was waived under the undisputed facts. In all other respects the issues were ■ submitted to the jury under proper instructions.
No error appearing, the judgment is affirmed. | [
52,
108,
-4,
13,
-120,
32,
40,
58,
-37,
33,
36,
83,
-5,
-27,
85,
37,
-25,
9,
101,
105,
-105,
-77,
19,
106,
-46,
-77,
81,
-59,
-104,
-37,
116,
-106,
76,
41,
-54,
21,
-62,
-64,
-59,
-100,
78,
8,
63,
-28,
93,
120,
48,
-49,
48,
67,
81,
-105,
-13,
-95,
21,
67,
77,
45,
75,
-87,
80,
121,
-118,
13,
127,
23,
17,
101,
-102,
3,
104,
-120,
-100,
49,
1,
-88,
115,
-90,
-58,
100,
37,
-119,
9,
100,
103,
24,
5,
-89,
-24,
-116,
38,
-74,
-67,
-82,
-78,
32,
27,
11,
-65,
-99,
124,
0,
-105,
120,
-68,
-108,
92,
108,
7,
-50,
-108,
-26,
-117,
104,
-100,
-117,
-1,
7,
-92,
117,
-49,
-96,
93,
71,
63,
-101,
-106,
-54
] |
McCulloch, C. J.
The road improvement district involved in this controversy was organized in Saline County by order of the county court, pursuant to general statutes (Crawford & Moses’ Digest, § 5399 et seq.), for the purpose of constructing a highway beginning at the end of Arch Street, at the Pulaski County line, and running thence 6.4 miles south, through Saline County, to the Grant County line.
Appellant Kerby entered into a contract with the district to build the road in accordance with the, plans and specifications prepared by the engineer, and he gave bond to the district in the sum of $15,000, in accordance xvith the statute (Crawford & Moses’ Digest, § 5446), for the faithful performance of his contract, and containing an obligation to pay for all labor and materials supplied by any and all persons.
The contract between appellant Kei’by and the district was in writing, and he entered into an oral subcontract xvith T. H. Read for the latter to do the grading work on a mile of-the road. After the completion of the work, Read claimed a balance due him on his contract in the sum of .$617.50, and this action was instituted in the name of the district, for the benefit of Read, against appellant Kei’by and the sureties on his bond, O. B. Field and W. A. Baxley.
Appellant Kerby admitted liability to Read in the sum of $312.75, but denied liability for the remainder of the amount claimed. The -sureties pleaded that they were discharged from liability on the bond by reason of material changes in the contract between Kerby and- the. i district. Kerby also claimed, in his defense, that under the contract with Read' there was to be a retained percentage of the contract price until completion of the road, and that the road had not been completed.
There was a trial of the issues before a jury, and the verdict was in favor of appellee for the full amount of Read’s claim.
There is really no dispute in the evidence as to the correctness of the items in Read’s claim, but the dispute arises over the question of the liability of appellant for payment of the same.
The amounts in dispute are divided into two items, the first being the sum of $204.75 for what is .termed the “fourth estimate” of Read’s work, and the remaining item of $100 is for clearing and pulling stumps from two acres of ground.
. Kerby claims that he is not liable for the item of $204.75, for the reason that it was not in Ms contract with the district, and that the work was done by Read under what is termed “force account,” by direction of the engineer of the district.
Appellant requested the court to instruct the jury that if “the engineer for the district had authority to order work done for the district other than contemplated in the contract between the district and defendant Kerby, and that he directed the plaintiff to do other work than that embraced in Kerby’s contract, and that no payment was made or allowed to Kerby. by the district, you are instructed that the defendant. Kerby. .would not be liable to the plaintiff for the. amount of such woi’k.” We do not think that the evidence warranted this instruction, for, according to the evidence, the work covered by this estimate was within the contract between Kerby and the district, and also was in the contract between Kerby and Read. The work was back-filling at bridges and culverts. The evidence showed that, under the contract, the engineer had the right to direct Kerby to do any work necessary for the construction of the road, whether specified or not, and the engineer, who was introduced as a witness by appellants, testified that it was inconvenient for Kerby to go back to that work to do it, and that for that reason he directed the work to be done by Read. The proof shows that this was in Read’s contract. Since this is true, Kerby cannot escape liability because an allowance was not made to him for the work. All that the proof shows is that the work was under what is called “force account,” and that the estimate was made directly to the district by Read. Of course, Kerby is entitled to credit for this in his settlement with the district, but the fact that it has not been credited to Kerby by the district does not release Kerby from his obligation to pay the subcontractor.
As to the other item of $100 for clearing and grubbing, the proof shows that this work was embraced in Kerby’s contract with the district, and that he was to receive $125 an acre. It is not embraced in the original contract between Kerby and Read, but Kerby’s foreman made a contract with Read to do this work on two acres of ground at $50 per acre. Kerby testifies that the foreman had no authority to make this contract, but he does not claim that it was done by Read without his knowledge, and he is deemed to have ratified the unauthorized acts of his foreman.
Error of the court is assigned in submitting to the jury the issue concerning the retention of the percentage. The court told the jury, in substance, that, if there was an agreement between Kerby and Read that fifteen per centum was to be retained until the entire road was completed by Kerby, there should be no verdict for the amount of the retained percentage, but, on the other hand, if there wás no agreement for the retention of the percentage, the amount should not be deducted from Read’s recovery. There was conflicting testimony on this subject, and it' was proper to submit the issue to the jury. Kerby testified that there was an express agreement between him and Read that fifteen per cent, should be retained, but Read testified that there was no such agreement. This made an issue for the jury to settle.
It is contended on behalf of the sureties that they were discharged by reason of material changes in the contract, and error is assigned in the refusal of the court to submit that issue to the jury. Appellants invoke the familiar rule that sureties are bound only by the letter of their contract, and that any alteration of the contract between the principals discharges the sureties.
The obligation of the bond executed by the sureties was based upon the contract between Kerby and the district, and there is a clause in the contract which authorizes changes, both material and immaterial. Paragraph 27 of the contract provides that the engineer, with the consent of the board, can “alter or change any detail in the material or method of construction, or the - location of roadway or grade, which would not materially increase or decrease the cost of the work, without additional compensation to the contractor.” In the same section it is further provided that “important changes or alterations may be made, but the contractor shall not proceed with such changes or ' alterations without written orders from the engineer. The price covering such changes or alterations shall be fixed by agreement between the engineer and the contractor.” Now, this is a clear agreement for immaterial changes to be made by the engineer, or material changes to be made by agreement between the engineer and the contractor. The engineer had no right to make material changes without the consent of the contractor, but any changes made in accordance with the contract, however material, did not discharge the sureties from liability.
It is also contended that the clause of the contract requiring said contract to be in writing and approved by the engineer affected the liability of the sureties, and that the acceptance of a subcontract orally, without written approval by the engineer, discharged the sureties; We cannot agree to this contention. Section 20 of the contract provides that the contractor “will not he permitted to sublet, assign, sell, transfer, or' otherwise dispose of the contract or any portion thereof, or his right, title or interest therein, to any indivinal, firm or corporation, without the written consent of the board and engineer.” This general provision was put into the contract evidently for the benefit of the district, and the latter was estopped from disputing the rights of the subcontractor, if it accepted the services without requiring a written contract and the written approval of the engineer. This did not constitute a material change in the contract which affected the liability of the sureties.
Finafiy, it is contended that the sureties are not liable to-the contractor, but are only liable to those who actually performed labor or furnished material. The statute under which the bond was given reads as follows:
“All contractors shall be required to give bond for the faithful performance of such contracts as may be awarded to them, with good and sufficient security in an amount to be fixed by the board of commissioners, and said bond shall contain an additional obligation that sueh contractor, or contractors, shall promptly make payment to all persons, supplying him or them, labor and materials in the prosecution of work provided for in such contract. Suit may be brought by and in the name of the district upon the bond given to the board. Any person, individual or corporation supplying labor and material shall have the right of action, and shall be authorized to bring suit in the name of the district for his, their, or its use and benefit, against said contractor and surety, and to prosecute same to final judgment and execution, but such action and its prosecution shall involve the district in no expense whatsoever.” Crawford & Moses’ Digest, § 5446.
The language of the bond is in conformity with the statute.
In construing the statutes of this State giving liens to mechanics and furnishers of material, we have decided that contractors are not entitled to a lien for. furnishing labor, and that the lien was only given to. the xnechanic or laborer who performed the services. Little Rock, Hot Springs & Texas Ry. Co. v. Spencer, 65 Ark. 183; Royal Theater Co. v. Collins, 102 Ark. 539; Cook v. Moore, 152 Ark. 590. The statute prescribing the terms of the bond now under consideration is, however, quite different, for it expressly provides that the “contractor, or contractors, shall promptly make payment to all persons supplying him, or them, labor and materials in the prosecution of work provided for in such contract.” Now, the term “supply * * * labor and materials” means something more than mere performance of labor. In other words, it includes the supplying of the labor of others. This Anew is fortified by the fact that the words “labor and materials” are coupled together, and the Avord “supply” has reference to both, meaning to confer benefit upon persons who supply labor as well as those who supply materials. Another feature of the statute which fortifies this view is that it provides that “any person, individual or corporation supplying labor and material shall have the right of action.” It is obvious that a corporation can not itself labor, and therefore it was not the purpose of the Legislature to confine the benefits floAving from this statute to persons who labor themselves, but, on the contrary, it Avas intended to extend the benefit to those who supply the labor of others as well as those who labor themselves.
This covers all the assignments of error in the case, and Ave have reached the conclusion that none of the assignments are well taken. The judgment is therefore affirmed. | [
-12,
-24,
-40,
-50,
-38,
64,
26,
10,
89,
-85,
101,
95,
-83,
74,
13,
115,
-93,
121,
-44,
121,
-28,
-78,
115,
65,
-14,
-13,
-9,
-57,
-77,
93,
-28,
-41,
76,
56,
-38,
21,
-126,
66,
-59,
-100,
-50,
-122,
-70,
-52,
89,
67,
52,
111,
50,
15,
101,
-66,
-13,
40,
24,
-25,
109,
44,
-39,
-87,
81,
-14,
-100,
7,
95,
5,
1,
70,
-104,
3,
-56,
42,
-112,
-79,
12,
-72,
126,
38,
-60,
116,
43,
-103,
-120,
52,
98,
32,
36,
-57,
-20,
-68,
30,
-34,
-119,
-89,
-122,
89,
107,
75,
-74,
93,
124,
86,
6,
-6,
-12,
5,
91,
108,
-89,
-53,
-8,
-77,
13,
52,
-107,
-121,
-25,
1,
48,
112,
-49,
-42,
94,
70,
18,
-101,
19,
-72
] |
McCulloch, C. J.
This appeal involves a contest between the parties for the office of school director of a special school district in Mississippi Connty.
Crosnell Special School District No. 6, the district in which this contest arises, was created by special statute approved'February 23,192Q, and the statute provides for a board of directors composed of six members. The present contest relates to the regular election in May, 1922, to provide for the succession of two of the directors whose terms expired at that time. There were seven candidates, and, according to the returns, appellants, J. T. Stafford and Gr. R. Ledbetter, received twenty-eight votes each, and appellees, O. E. Cook and P. H. Raspberry, received thirty-three votes each. Three other candidates, according to the face of the returns, received more votes than appellants. The returns were canvassed bj^ the county board of education, and appel-lees, Cook and Raspberry, entered upon the discharge of their duties. Appellants instituted a contest before the county board of education, and appealed to the circuit court of Mississippi County from an adverse decision of that board.
It appears from the evidence in the case, that the ballots cast for appellants contained only the names of two candidates, whereas the ballots received by appel-lees contained the names of five candidates. It is shown that these ballots were oast upon the theory that there were five vacancies, for the reason, it is claimed, that three of‘ the directors, Lloyd, Vernon and Hale, whose terms had not expired, had become ineligible by reason of having failed to pay their poll-tax. The proof shows further that these persons were' still exercising the duties of the office, and that there had been no abandonment or nonuser.
Tlie trial court .submitted to the jury the question concerning the alleged ineligibility of Lloyd, Vernon and Hale, and the jury made a special finding that they had not paid poll-tax for the previous year. The trial court then decided that these directors had rendered themselves ineligible to continue in office by reason of failing to pay poll-tax, and entered a judgment against appellants in their contest for the office. The effect of this decision of the trial court was to hold that, there being three ineligible directors, three vacancies occurred by reason thereof, and that there were three places to be filled on account of these vacancies, in addition to the places to be vacated by the expiration of terms at that time.
During the pendency of the contest in the circuit court, there was instituted in the chancery court- an action to restrain directors Lloyd, Vernon, Hale, G-. B. Ledbetter and O. S. Ledbetter, the -old directors, from exercising the functions of the office, and a temporary injunction was issued, but later dissolved, and the chancery ease was transferred to the circuit court and consolidated with the election contest. This appeal brings up all of the questions raised in both actions.
. The General Assembly of 1919 enacted a statute creating county boards of education. Crawford & Moses’ Digest, § 8853 et seg. The statute, in effect, substituted the county board of education for the county court in the supervision , of the school affairs of the respective counties in which the statute was applicable. We have decided that the Legislature did not exceed its powers in creating the board and conferring those duties upon it. Mitchell v. Directors of School District No. 13, 153 Ark. 50. Section 11 of that statute provides, in substance, that the returns of all school elections shall be made to the county board, that the board shall canvass the returns and “certify the result to the county court for proper record,” and that “all contests pertaining to school elections shall be filed with the county board of education within fifteen days after such election, and the board shall, as soon as practicable after ¡the contest is made or filed, grant a hearing.” There is a further provision for an appeal ‘ ‘ to the circuit court in the manner now provided by law for appeals from county courts.”
Counsel in the case have not suggested any controversy concerning the question of the power of the Legislature to confer upon an election board as a special tribunal the authority to hear contests for the office of school director, but the question naturally ¡arises, and we proceed to its decision as a preliminary matter in this controversy.
We have decided that the office of school director falls within the designation of county officers within the meaning of our statute regulating contests, and that, prior ho the statute now under consideration, such a contest must originate in the county court. Ferguson v. Wolchansky, 133 Ark. 516. The Constitution itself provides the method of contesting elections for certain offices, and it is specially provided in article 19, § 24, that the Legislature may provide'by law for the mode of contesting elections in cases not otherwise specifically provided for in the Constitution itself. It is thus seen that the Constitution itself has conferred upon the lawmakers adequate authority to provide for all election contests, leaving the matter entirely within the will of the Legislature as to where and by what means contests shall be conducted. The only question which arises is whether or not the exercise of this authority by the lawmakers was intended to be limited to the courts established by the Constitution. This very question was decided by the court in the case of Govan v. Jackson, 32 Ark. 553, where it was said:
“There is nothing in the Constitution, that we can see, which requires that the contest should be made before the county court or that restrains the Legislature from erecting some other tribunal -or board for its de termination; on the contrary, the power of the Legislature to establish such, if not distinctly expressed, is plainly implied in § 52 of art. 7, which is as follows: ‘§ 52. That in all cases of contest for any county, township or municipal office, an appeal shall lie, at the instance of the party aggrieved, from any inferior board, council or tribunal to the circuit court, on the same terms and conditions on which appeals may be granted to the circuit court in other cases, and on such appeals the case shall be tried de novo.’ ”
The precise question now before ns was not involved in Govan v. Jackson, supra, but the statement above quoted was an essential part of the reasoning of the court in disposing of the other questions involved, hence it cannot be-treated as mere dictum. This view of the matter is in accord with the great weight of authority in other States, where it is generally held that election contests are not strictly judicial in the sense that they must be determined by the established courts, and it is generally held that, unless the Constitution forbids, the Legislature may refer such contests for settlement to any court or tribunal of its selection. 9 R. C. L. p. 1158.
We conclude therefore that the statute is valid in this respect, and that the contest was properly instituted before the board of education and carried to the circuit court, on appeal.
This brings us to a consideration of the merits of the contest — whether or not the ballots cast for appellees were valid expressions of the will of the voters in favor of their election.
It is undisputed that all of the ballots oast in favor of the election of appellees contained the names of five candidates, and,' if it be found that there were not so many offices to be filled at that election, it follows from well-settled principles that those ballots must be thrown out, for the reason that, with more names on the ballot than there were offices to be filled, there is no means of ascertaining which one of the candidates the voters meiyt to favor with their ballots.
There was no designation on these ballots to indicate which of the candidates were voted for as the successors of the officers whose terms expired iat that time, and this would necessarily result in the election of appellants, as the ballots cast in favor of all of the other candidates contained the names of five candidates, the same as those cast in favor of appellees. The theory upon which the voters cast their ballots for five candidates was that there were three vacancies on account, of the ineligibility of directors Lloyd, Yernon and Hale, but this conception was entirely erroneous, for there were, in fact, no .such vacancies. We must treat it as settled by the finding of the jury, upon conflicting testimony, that Lloyd, Yernon and Hale had not paid poll-tax for the previous year, and were-not qualified electors. White v. Hughes, 97 Ark. 221. There was no attempt, however, to prove that these men were ineligible at the time they were elected and took office.' Conceding, without deciding, that a condition of ineligibility arising after election and taking office would constitute ground for removal, it does not follow that such ineligibility vacates the office ipso fpcto; on the contrary, it seems clear to us that such subsequent ineligibility merely affords ground for removal, and does not vacate the office.
“Vacancy in office” means the absence -of an incumbent of the office who has been legally inducted therein. Words and Phrases, vol. 4, p. 1122 (second series); 22 R. C. L. p. 437. If the office has not been filled by a de jure incumbent, then the vacancy still exists, but, when the induction into office is legal .and the person so inducted is eligible at -the time, his continuance in the office prevents a vacancy until he abandons the office or is removed therefrom in the manner provided by law. Mere existence of grounds for removal do not constitute a vacation of an office so as to confer upon the electors the right to elect a successor. Any other view of the matter would constitute an expulsion or removal of the incumbent from actual incumbency of the-office without an opportunity to be beard. This is tbe principle which governed tbe case of School District v. Garrison, 90 Ark. 335, though the application of the principle was somewhat different than in this case.
Counsel for appellees rely on the decision in Means v. Terral, 145 Ark. 443, as supporting their contention that there were actual vacancies which the electors were authorized to fill. We do not think the principles' announced in that case have any application, for there was an actual vacancy in the office, which was temporarily filled by appointment, and, according to our interpretation of the Constitution, the voters were authorized to elect a successor — not because of an actual vacancy, but because the law authorized the election of a successor to the appointee of the Governor.
Our conclusion upon the whole case is that the judg-'. ment of the circuit court is erroneous, upon the undisputed evidence, and that appellants are entitled to a judgment in their favor, the case being fully developed from the facts.
The judgment is therefore reversed, and the cause remanded, with directions to the circuit court to enter a judgment in favor of appellants, declaring them to be duly elected and entitled to induction into office. | [
-80,
-52,
-8,
-116,
42,
-94,
74,
30,
104,
-125,
101,
-45,
-81,
84,
20,
109,
-29,
125,
-47,
106,
-81,
-77,
19,
66,
43,
-13,
-17,
-57,
-73,
74,
-12,
127,
8,
-80,
-54,
84,
-58,
66,
-51,
28,
-122,
1,
-23,
79,
121,
-128,
62,
106,
88,
-113,
81,
-98,
-29,
40,
28,
99,
72,
44,
-39,
57,
-64,
-15,
18,
5,
125,
23,
-111,
70,
-102,
-125,
-54,
46,
24,
52,
-108,
-8,
26,
-90,
18,
-44,
8,
-119,
12,
100,
102,
24,
-71,
-17,
-83,
-55,
14,
30,
25,
-90,
-98,
41,
35,
15,
-74,
31,
118,
82,
7,
126,
98,
-59,
21,
60,
-28,
-33,
-106,
-109,
4,
-92,
-98,
3,
-21,
59,
48,
113,
-52,
-38,
92,
70,
50,
-109,
-58,
-128
] |
Hart, J.,
(after stating the facts). According to the allegations of the complaint, the judgment in favor of the Cramer Cotton Company against E. B. Matkin in the circuit court was procured by fraud. In other words, it is the contention of Matkin that he had a meritorious defense to the action, and that the Cramer Cotton Company took judgment against him after promising him that no action would be taken in the case at that term of the court.
N. A. Cramer, the principal stockholder and manager of the Cramer Cotton Company, denied that he made any agreement with Matkin not to take judgment against him at the term of the court during which the judgment in question in the circuit court was rendered, or at any other time.
The chancellor found the issue in this respect in .favor of the defendant, Cramer Cotton Company, and it cannot be said that his finding on this point is against the weight of the evidence.
' Under a long course of decisions in this' State, a finding of fact made by a' chancellor will not be disturbed on appeal unless it is against the weight'of the evidence. Hence a court of equity cannot relieve the plaintiff in this case, though the judgment against him in the cir- ' cuit court was manifestly wrong. The alleged errors in the'ease against Matkin in the circuit court should have been settled in that court, or by appeal to this court. It must appear that the judgment complained of was not the result of any inattention or negligence on the part of Matkin, and he must show a clear case of diligence to entitle himself to an injunction. Clopton v. Carloss, 42 Ark. 560, and Hanna v. Morrow, 43 Ark. 107.
It is the duty of a litigant to keep himself informed of the progress of his case, and a court of equity will not relieve him if the taking of the judgment appears to have been due to his own carelessness in not defending •the suit. Trumbull v. Harris, 114 Ark. 493.
It follows that the decree must be affirmed. | [
48,
110,
-4,
13,
-86,
-32,
42,
-6,
113,
-63,
39,
-13,
-19,
-17,
16,
63,
-30,
89,
-11,
107,
92,
-25,
7,
115,
86,
-109,
-37,
-59,
49,
105,
-11,
-35,
76,
48,
-126,
85,
-26,
-53,
-63,
-38,
-114,
13,
-70,
101,
-7,
88,
48,
-74,
16,
79,
17,
-98,
-13,
34,
25,
67,
-23,
44,
123,
-71,
-16,
-16,
-102,
-50,
111,
4,
-109,
38,
-104,
39,
-40,
46,
-104,
49,
1,
-24,
115,
-74,
2,
84,
43,
25,
8,
102,
99,
32,
97,
-25,
-72,
-100,
47,
-2,
-113,
-25,
50,
104,
11,
13,
-74,
-99,
118,
4,
-121,
-2,
-4,
-100,
28,
124,
1,
-113,
-44,
-73,
-113,
100,
-100,
19,
-57,
-121,
-112,
81,
-51,
-86,
93,
22,
55,
27,
-98,
-75
] |
Hart, J.,
(after stating- the facts). The main objection to the recovery had is that the defendant offered to receive the plaintiff back into his employment at $137.50 a month, and that the plaintiff ought to have accepted the offer and in this manner have kept down the payments. We cannot agree with the defendant in this contention. According to the evidence of the plaintiff, the defendant only agreed to keep him in his employment if he would work for him at $137.50 in lieu of the $275 per month provided in the contract of employment.
According to the testimony of the plaintiff, this was a plain proposition -to give up the old contract and to accept in lieu thereof a new one, less beneficial to the plaintiff. This is to say, the new offer of the defendant to the plaintiff was to continue in the same employment at a less price. If the plaintiff had agreed to this. 1m would have virtually surrendered' the old contract and have made a new one. If he had agreed to a change ox-modification of the old contract, he would have been bound by its terms and could not have recovered for -a breach of the original contract of employment. After the defendant had virtually declined to give the plain tiff employment under the original contract, there was no further duty on the plaintiff’s part to be in readiness to perform. If the testimony of the plaintiff is true, Iris only further duty was to use reasonable care in entering into other employment of the same kind, and thus reduce the damages. The case was submitted to the jury on this theory. VanWinkle v. Satterfield, 58 Ark. 617.
This case also decides that the burden of proof was on the defendant to show that the plaintiff might have obtained similar employment. The reason is that the failure of the servant to obtain other employment does not affect his right of action, but only goes in reduction of damages.
It is also contended that the court erred in giving instruction No. 3, which is as follows: “If you find from the proof that the conduct of the defendant evinced the fact that he would no longer be bound by the contract, or if there was a clear manifestation by words or acts of his intention not to perform his part of the contract according to its terms, such action or conditions were sufficient to authorize the plaintiff to treat the contract as repudiated.”
There was no error in giving this instruction. According to the testimony of the plaintiff, the defendant told him that he would not keep him during the remainder of his term of service unless he would agree to work for a reduced salary. The jury might have found, from this declaration of the defendant, an intention to be no longer bound by the contract, and this court has held that not only an absolute refusal in words to perform a contract, but also any clear manifestation, by words or acts, of an intention not to carry out the contract, will authorize the other party'to treat this as a cancellation of the contract and to bring action for the breach thereof. Spencer Medicine Co. v. Hall, 78 Ark. 336.
The instructions asked for by the defendant and refused by the court were erroneous aucl need not be set out in full. It is only necessary to say that they carry with them an obligation on the part of the plaintiff to have remained with the defendant and worked for him at $137.50 per month if he could not get employment in a similar line of business elsewhere. This qualification was not correct, for the reason stated above. The plaintiff was not obliged to remain in Osceola or to tender his services to the defendant after they had been once definitely rejected. According to the testimony of the plaintiff, he made reasonable efforts to procure similar employment elsewhere, but failed.
The testimony of the parties to the contract was in direct and irreconcilable conflict. The court submitted their respective theories to the jury, under proper instruction, and tlie verdict in favor of the plaintiff is warranted by his testimony.
There is no prejudicial error in the record, and the judgment will be affirmed. | [
16,
-4,
-40,
109,
8,
96,
58,
-104,
-47,
3,
39,
85,
-17,
-41,
24,
107,
-10,
121,
113,
105,
93,
35,
22,
3,
-10,
-109,
81,
85,
-71,
79,
-30,
93,
69,
48,
-30,
-43,
102,
66,
-43,
84,
10,
4,
-120,
103,
-16,
66,
48,
89,
84,
91,
32,
-42,
-77,
38,
25,
-49,
-54,
44,
59,
57,
112,
-16,
-101,
-115,
107,
13,
-78,
101,
28,
103,
-38,
110,
-120,
-71,
1,
-56,
114,
-74,
-122,
92,
97,
-101,
8,
98,
102,
32,
113,
64,
-36,
-76,
46,
-68,
13,
-90,
-47,
88,
11,
77,
-74,
-65,
88,
20,
12,
126,
-10,
21,
29,
-91,
3,
-113,
-42,
-78,
-51,
100,
-70,
11,
-17,
1,
-111,
96,
-50,
-86,
92,
71,
122,
-109,
-65,
-37
] |
Wood, J.,
(after stating the facts). 1. This suit, as to all the grounds alleged for invalidating the deeds of the commissioner except that the taxes were paid, was a collateral attack on the decree of the chancery court condemning the lands to be sold. See, Hall v. Morris, 94 Ark. 519; Crittenden Lumber Co. v. McDougal, 101 Ark. 390; Beck v. Anders on-Tully Co., 113 Ark. 316.
The record of the proceedings of the chancery court under which the lands in controversy were condemned and sold for delinquent drainage taxes shows that those proceedings were in all things regular and according to Act No. 172 of the Acts of 1905, as amended by Act No. 235 of the Acts of 1909. There is nothing on the face of the proceedings, as shown by this record, evidencing a want of jurisdiction in the chancery court to decree a sale of the lands in controversy. It is clear that Act No. 235 of the Acts of 1909 did not intend to abolish any causes of action that had accrued and that were then in existence, for the delinquent taxes of prior years. But the act of 1909 was intended to furnish the remedy that should thereafter be pursued for the collection of all delinquent taxes, no matter for what year the same had accrued. Since the proceedings of the chancery court condemning the lands in controversy were regular on their face, and did not show any want of jurisdiction in the chancery court, all the. matters alleged in the complaints of the appellees as grounds for invalidating the sale made under the order of the chancery court and the deed of the commissioner in pursuance thereof, can not avail here. Because the chancery court had jurisdiction, its decree, as to all things necessary for adjudication before the rendition thereof, can not be overcome and set aside by this collateral attack. See, Lumber Co. v. McDougal, supra.
2. However, Acts No. 235 of the Acts of 1909 contains this provision: “Provided, that at any time within three years after the rendition of the final decree under which the sale is made, the owner of the land may file his petition in the court rendering the decree, alleging the payment of the taxes on the lands for the year for which they were sold,, and that upon the establishment of that fact, the court shall vacate and set aside the decree,” etc.
It will thus be seen that the act itself provides a direct method for an attack on the decree of the chancery court condemning the lands for sale where the “taxes have been paid.on the lands for the year for which they were sold.” Under this provision appellants were entitled to have the decree set aside, and the deeds made in pursuance thereof cancelled, as to those tracts of land where they showed that the taxes were paid for the years for which they were sold.
The chancellor was warranted in finding, under the testimony set forth in the statement, that the taxes were paid on the east half of the -northwest quarter of section 33, township 19 north, range 8 east, for the years 1905, 1906 and 1907. But as to the other tracts in controversy, there is no testimony to contradict or rebut the testimony of the witness to the effect that the taxes on these tracts were not paid for all the years for which they were sold.
The decree of the chancery court therefore, will be affirmed as to the east half of the northwest quarter of section 33, township 19 north, range 8 east; but as to the other tracts, it will be reversed and remanded with directions to enter a decree dismissing the appellee’s complaints for want of equity. | [
118,
-18,
-36,
-52,
42,
-64,
106,
-88,
75,
-79,
39,
87,
-17,
-126,
0,
37,
-94,
125,
113,
42,
-60,
-77,
82,
35,
-78,
-105,
-47,
93,
55,
77,
-9,
71,
76,
56,
74,
-75,
71,
98,
-59,
-40,
14,
2,
-102,
77,
-55,
-64,
52,
-69,
26,
77,
113,
-18,
-21,
44,
21,
-57,
73,
44,
93,
-88,
81,
-72,
-70,
29,
121,
5,
33,
103,
-104,
3,
104,
10,
-112,
57,
-125,
-20,
119,
-74,
-58,
84,
5,
-119,
40,
98,
-26,
1,
77,
-17,
-88,
-72,
46,
-2,
13,
-90,
-64,
88,
3,
104,
-74,
-111,
92,
80,
38,
126,
-30,
-59,
28,
108,
-113,
-114,
-42,
-89,
-98,
-98,
-104,
67,
-17,
-93,
48,
80,
-49,
-74,
92,
71,
16,
27,
12,
-55
] |
McCulloch, C. J.
Plaintiff, W. B. Collins, instituted separate iactions before a justice of the peace against defendants, A. C. Briggs and F. H. Daniels, to recover the amount of two negotiable promissory notes executed by the respective defendants to one Trask, and by Trask assigned to plaintiff.
On appeal to the circuit court the two cases were consolidated and tried together, and the court gave a peremptory instruction in favor of the plaintiff against each of the defendants for the amount of the note which he had executed.
Plaintiff was the general agent of an insurance company and maintained his offices at Port Smith. Trask was soliciting agent, acting under appointment from plaintiff, and procured applications from the two defendants, who resided at Mena, Arkansas, and policies were accordingly issued to them by the company. The defendants executed negotiable promissory notes to Trask for the amounts of their respective premiums, and Trask assigned the notes before maturity to plaintiff, who accepted same and credited Trask with the face value in settlement for premiums collected.
Defendant Daniels testified on the trial of.the case 'that he was engaged in the livery business in Mena; that Trask was indebted to him for a livery bill and agreed to let the first premium go as a credit on said debt. He testified also that he gave the note to Trask upon the representation by the latter “that he wanted it in making a settlement with the company,” but would return the same to him within a few days after he had shown it to the company as an evidence of the fact that the policy had been taken in good faith. He testified that there was no other consideration for the note.
Defendant Briggs testified to a similar state of facts with reference to his transaction with Trask and the execution of the note.
Plaintiff testified that the notes were assigned to him by Trask before maturity, and that he gave Trask credit for them in his settlement, advancing to him enough money .to cover Ms commission, and that he made it good to the company: He testified that he knew notMng about the understanding or agreement with defendants concerning the premiums.
The testimony of plaintiff tends very strongly to show that he was an innocent holder of the notes, having paid full value therefor, and there is nothing in the record to contradict him. The only thing that prevents his testimony being treated as undisputed is his direct interest in the result of the transaction. Skillern v. Baker, 82 Ark. 86.
But. aside from that question we are of the opinion that the evidence was undisputed upon other material questions in the case, and that the court was correct in giving a.peremptory instruction. The substance of the testimony of each of the defendants was that he took out the policy of insurance under .an agreement with Trask that the premium should be paid by crediting the same on Trask’s indebtedness to him."
An agent with authority to solicit insurance or to sell any commodity and receive money or other tMngs of value in payment of the price has no apparent authority to accept the cancellation of his own indebtedness in satisfaction of such price, and where the person dealt with has knowledge of the agency, he can not avail himself of payment made in that way. Arnett v. Glenn, 52 Ark. 253; Smith v. James, 53 Ark. 135; Grooms v. Neff Harness Co., 79 Ark. 401.
1 There must be express authority to an agent to' collect the price in that way before the principal is bound by such act.
The proof in this caséis sufficient to show that Trask, the soliciting agent, was authorized to accept payment of money, or to.take notes and to convert the same into money; but that does not imply the authority to accept the cancellation of Ms own debt. Therefore, the fact that he obtained the notes on the false representation that he would only use the same to exhibit to the company as an evidence of good faith in taMng the insurance dues not constitute a defense, for the reason that the cancellation of his debt did not constitute a payment of the premiums. If the notes had not been taken and no payment was ever made except by cancellation of the indebtedness of Trask, the company would be entitled to recover the amount of the premiums, and as these notes represented the premiums and plaintiff is a valid holder of .same, and has satisfied the claim of the company for the premiums, he is entitled to recover the amount, notwithstanding the fact that the notes were obtained under a false promise to return them. In other words, according to the undisputed facts, the defendants owe the amounts of the premiums on their policies, and they are in no position to complain that these premium notes were obtained by a false promise that they would be returned after exhibition to the company. They owe the amounts, and it is immaterial to them who they are paid to.
Judgment affirmed. | [
-16,
-4,
-96,
-35,
-118,
-32,
40,
58,
-24,
34,
117,
83,
-23,
68,
1,
97,
-25,
9,
-64,
107,
-76,
-77,
21,
99,
-30,
-73,
-15,
71,
-79,
-49,
-20,
-41,
76,
48,
-54,
89,
-58,
74,
-59,
-100,
-50,
12,
-24,
-64,
-7,
8,
48,
115,
85,
79,
113,
-114,
-33,
42,
29,
75,
105,
42,
107,
-119,
-48,
-15,
-117,
7,
125,
19,
-95,
70,
-104,
71,
74,
14,
-112,
49,
9,
-8,
114,
-90,
-122,
-12,
75,
-119,
-116,
102,
102,
32,
80,
-17,
-72,
-84,
103,
-74,
-107,
-90,
-46,
105,
11,
15,
-106,
-99,
122,
18,
7,
-10,
-2,
29,
24,
104,
5,
-65,
-42,
-94,
59,
118,
29,
3,
-2,
-109,
52,
117,
-49,
-14,
92,
71,
58,
-101,
14,
-107
] |
Smith, J.,
(after stating the facts). It is contended by appellants that the conveyance by Faulkner to his wife transferred to her only an equitable title to the land in controversy, and that an action of ejectment could not be maintained upon that title. No exception appears to have been made to this deed in the court below, and no objection was made to its introduction as evidence. But, if appellees have any title to this land, they have the right to its possession and an equitable title coupled with the legal right to possession is sufficient to maintain an action of ejectment. Kirby’s Digest, § § 2737-2745; Stricklin v. Moore, 98 Ark. 30; Alexander v. Hardin, 54 Ark. 480; Percifull v. Platt, 36 Ark. 456; Graham v. St. Louis, I. M. & S. Ry. Co., 69 Ark. 564.
As has been stated, the real question is whether or not the evidence is legally sufficient to support the finding that the deed had in fact been delivered.
It must be confessed that the evidence to establish the delivery of the deed is not altogether satisfying; but we can not say that it is not legally sufficient for that purpose. In the case of Russell v. May, 77 Ark. 89, it was said: “A delivery of a deed is essential to its validity. It can not take effect without delivery, and what is delivery depends upon the intention of the grantor. Any disposal of a deed, accompanied by acts, words or circumstances, which clearly indicate that the grantor intends that it shall take effect as a conveyance, is a sufficient delivery. 2 Jones on the Law of Real Property and Conveyancing, § § 1217-1224, and cases cited.” No particular form of delivery is required. The deed may be manually given by the grantor to the grantee, yet, manual delivery is unnecessary. The real test of delivery is, did the grantor by his acts or words, or both, intend to divest himself of title; if so, the deed is delivered. O’Neal v. Brown, 67 Ga. 707; Tyler v. Hall, 106 Mo. 313.
A number of instructions were given at the request of both parties, and others ¡asked by appellants were refused, which will not be set out in this opinion, as, in a general way, those which were given declared the law as here stated and required the jury to find that the grantor had parted with possesion of the deed for the purpose of divesting himself of his title to the land and of conveying that title to his wife. When this intent is effectuated a delivery of the deed is accomplished.
Appellants also insist that the judgment should be reversed because the proof does not show that Mrs. Faulkner was aware -of the execution of the deed, until after the death of her husband, ¡and that therefore there was never any delivery of the deed to her, and no acceptance of it by her. A similar contention was made in the case of Russell v. May, supra, where ¡a deed had been executed by a husband to his wife and it was there said : ■“An acceptance of the deed by the grantee is also essential to its validity. If it is beneficial to the grantee, and imposes upon him no burdens, an acceptance may be inferred. If it be executed in pursuance of a previous understanding with the grantee, and is beneficial to him, an acceptance is presumed. In this case the deed was unquestionably beneficial to the grantee. But it is said that she did not know of the existence of the deeds until after the death of her husband, and that this fact disproves the acceptance. This does not necessarily follow. The confidential relation of husband and wife existed between the grantor and grantee, and it would have been natural for him to inform her of his intentions in advance, and for the wife to express her approval; and it by no means follows that she ¡did not accept because she did not know of the existence of the deeds until after the death of the grantor, which was on the fourth day after their execution. ’'
We can not know what passed between Mr. Faulkner and his wife in regard to this deed, as they are both dead; but as this deed was highly beneficial to her, and imposed no burden whatever upon her, and recited the consideration .to be five dollars, cash in hand paid, which, if it had not been paid, was not required to be paid, and as this deed was found under lock and key, and in a receptacle containing her valuable papers, we think the jury was fully warranted in inferring an acceptance of the deed on the part of Mrs. Faulkner.
The proof is undisputed that when the deed was acknowledged it was a valid conveyance of the land in controversy, and if it was delivered it conveyed the title to the land there described, and these subsequent interlineations (the proof does not show by whom made) did not operate to defeat the conveyance.
Other exceptions were saved at the trial, and are urged as grounds for reversal, but we find no prejudicial error and the judgment is affirmed. | [
-9,
125,
-16,
61,
106,
-32,
-86,
-103,
-15,
-111,
36,
83,
111,
64,
13,
41,
-26,
121,
-15,
107,
-44,
-77,
103,
120,
82,
-109,
80,
71,
-73,
-51,
102,
-42,
76,
32,
-54,
85,
69,
66,
-51,
88,
-22,
-113,
9,
109,
-39,
-32,
36,
43,
82,
79,
65,
-113,
-13,
44,
25,
86,
-87,
42,
-53,
61,
72,
-8,
-102,
-121,
127,
6,
-79,
100,
-8,
1,
-56,
10,
16,
49,
9,
-24,
115,
-74,
-109,
-44,
77,
11,
-120,
96,
98,
50,
77,
-19,
-80,
-104,
46,
118,
69,
-90,
18,
25,
9,
41,
-98,
-99,
78,
0,
70,
118,
-29,
-115,
29,
108,
15,
-49,
-42,
-95,
9,
56,
10,
3,
-45,
7,
0,
81,
-50,
-18,
93,
97,
88,
-101,
-114,
-13
] |
Wood, J.
The appellant was convicted on an indictment which charged as follows: “That the said J. A. Saffell, in the district, county and State aforesaid, on the 30th day of December, 1913, did unlawfully, wilfully, maliciously and mischievously injure, tear down and remove a certain building known as the Harmony Church building, the same being public property,” etc.
Appellant demurred to the indictment. The court overruled the demurrer, and appellant urges this ruling of the court as one of his grounds for reversal.
The statute under which appellant was indicted is as follows:
“To cut, write upon, deface, disfigure or damage any part or appurtenance of the inclosure of the Statehouse, or any other building belonging to the State, or of any church or schoolhouse, or other public building, or of any citizen of this State, when not occupied, shall be a mis demeanor and punishable by a fine not exceeding one hundred dollars.” Kirby’s Dig., § 1923.
The indictment was sufficient to charge the offense under the above statute. The name of the owner of the church was not necessary to identify the crime at which the statute was leveled. The language of the statute does not require the name of the owner to be mentioned. To charge in the language of the statute, or in words of the same purport, that one disfigured or damaged any church house, was sufficient. “Where an offense involves the commission, or an attempt to commit, an injury to person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured, or attempted to be injured, is not material.” Kirby’s Dig., § 2233.
Even if the indictment had erroneously designated the particular denomination, or the trustees thereof holding the title for the members of the church, still the indictment would not have been defective on that account. The words “injure, tear down and remove” are certainly broad enough to include the words “deface, disfigure or damage. ’ ’
The indictment was sufficient to advise the appellant of the crime with which he was charged, and he was not prejudiced because of the failure to use the precise words of the statute. See Kirby’s Digest, § 2229.
2. The appellant complains because the court refused to allow him to testify that in tearing down the building he did not have any intention of injuring anybody. To constitute the offense charged, it was not necessary that the appellant shmild have had the specific intention of injuring any one. A specific intent to injure some one is not an ingredient of the crime charged, and if one tears down, injures or damages a church house he is guilty, under the statute, of a misdemeanor, whether he intended to injure any specific individual or many individuals or not. The offense is complete when the act is done, regardless of the intent of the offender in the commission of the unlawful act.
There was testimony to the effect that the church house was also used as a schoolhouse. Appellant complains because the court refused to grant prayers for instructions to the effect that the appellant would not be guilty by reason of the school district having occupied the building for school purposes. The ruling of the court in refusing these prayers was not prejudicial error. Appellant was not charged with injuring a schoolhouse, and there is no contention that the building alleged in the indictment was not a church house. Therefore, appellant would' be none the less guilty because the property was also a schoolhouse as well as a church house. The appellant is in no attitude to complain because the court refused to submit the issue as to whether the house mentioned was used for a schoolhouse as well as for church purposes. Appellant himself testified that he donated the site for church purposes and executed a deed to three trustees. There is nothing to show that the land was ever reconveyed to the appellant, and the testimony warranted the jury in finding that the use of the building had not been abandoned for church purposes. There was nothing to show that the title was to revert to the appellant even if it had been abandoned for church purposes. The undisputed evidence showed that the house alleged was a church house, named Harmony Church, and that it was torn down by.appellant.
There is no error in the record, and the judgment is affirmed. | [
-80,
110,
-39,
-67,
10,
-32,
42,
-70,
-45,
-127,
-73,
87,
-23,
-118,
8,
55,
-9,
121,
-44,
120,
-60,
-77,
55,
-93,
-78,
-109,
87,
-59,
-79,
76,
-9,
-4,
72,
32,
66,
-11,
71,
-120,
-63,
92,
-114,
-123,
-120,
72,
-45,
72,
52,
63,
4,
15,
97,
-1,
-77,
24,
52,
-61,
107,
40,
75,
-87,
96,
-71,
-100,
13,
105,
15,
-95,
38,
-100,
3,
104,
41,
-104,
53,
19,
-8,
115,
-74,
2,
-9,
31,
9,
13,
98,
98,
16,
-91,
-9,
-128,
-103,
38,
46,
-67,
-89,
-112,
73,
43,
13,
-65,
-115,
-27,
16,
20,
110,
-27,
-41,
17,
108,
-127,
-121,
-44,
-75,
-33,
32,
-100,
7,
-21,
-73,
16,
80,
-52,
-78,
92,
55,
50,
-97,
14,
-23
] |
McCulloch, C. J.
Appellant is a domestic corporation organized by numerous citizens of the city of Little Rock for the purpose of encouraging public improvements of all kinds and assisting therein, and, particularly, in inducing the location in this city and county of factories and other business concerns.
The county of Pulaski owned a certain tract of land by purchase, and same was conveyed by a commissioner of the county court, under its orders, to appellant. The land was unoccupied and not in use for county purposes. The deed recites a consideration of $1 “and benefits to accrue to said county from the expenditure by said Chamber of Commerce of the fund raised for industrial and development purposes for the above described land.”
Appellant instituted this action to quiet its title, alleging, in substance, that it had accumulated large sums of money and property by gifts from citizens and property owners, and was expending the same for public benefit in inducing the location of factories and other business enterprises in Pulaski County; that.it had thus induced certain large manufacturing plants to locate here, and thereby increase the population of the said county and the revenues from taxation. It is alleged in the complaint that the benefit to be derived by the county from increased revenues will amount to more than the value of the property conveyed. It is alleged .that certain taxpayers are challenging the validity of the conveyance, and the aid of the court is asked in quieting the title.
The court sustained a demurrer to the complaint, and an appeal has been duly prosecuted.
Under the statutes of this State the control and management of all county property is placed in the county court, and authority is conferred on that court “to sell and cause 'to be conveyed any real estate or personal property belonging to the county.” Kirby’s Digest, § 1375.
Another section of the statute reads as follows:
“The county court may, by an order to be entered on the minutes of said court, appoint a commissioner to sell and dispose of any real estate of the county, and the deed of such commissioner, under his hand, for and on behalf of such county, duly acknowledged and recorded, shall be sufficient, to all intents and purposes, to convey to the purchasers all the right, title, interest and estate whatever which the county may then have in and to the premises to be conveyed.” Kirby’s Digest, § 992.
The conveyance involved in this controversy was made pursuant to, and in strict compliance with, the terms of the statute above quoted. This conveyance is. in the form of a sale, and the present attack relates only to the consideration.
It must be conceded that the statute confers abundant power upon the county court to sell and convey property of the county not held in trust for specific purposes.
The county court having the power to direct the sale, the consideration can only be inquired into for the purpose of establishing fraud. Now, there is no charge of fraud involved in this case, for the decision below turned upon the sufficiency of the allegations of the complaint.
Counsel for appellee rely upon the case of State v. Baxter, 50 Ark. 447, where the county court leased property of the county for a term of ninety-nine years for a grossly inadequate consideration. The lease was attacked for fraud, and this court held that the transaction was fraudulent upon its face, for the reason that the consideration was grossly inadequate, and, being without any other consideration, it stamped the transaction as a species of favoritism.
There is no element of favoritism -or unfairness in the present case, for there is nothing to indicate, so far as the allegations of the complaint show, that the trans action was inspired by other than the best motives and purposes on the part of those who participated therein.
There is no limitation placed upon the county court, by statute or otherwise, in the exercise of its judgment as to the consideration upon which the disposition of the county’s property must be based; therefore, nothing short of fraud, or such gross inadequacy as will be equivalent to fraud, is sufficient .to invalidate the order of the county court directing the conveyance.
The consideration may be other than in money, and the county court, in exercising its power, may determine what is to the best interests of the county..
The case of Roberts v. Northern Pacific Railroad Co. 158 U. S. 1, is an instructive one. A county in the State of Wisconsin hád donated certain lands to the railroad, the consideration being increased taxation. It was contended that, while the county court had the power of disposition over the lands belonging to the county, it could not make a donation to a railroad. The Supreme Court of the United States, in disposing of that contention, said:
“In the first place, the transaction between the county of Douglas and the Northern Pacific Railroad Company did not involve the exercise of the taxing power of the county. The county did not issue bonds, or seek to subject itself to any obligation to raise money by taxation. The case, as already stated, was that of a sale. The county authorities had ample powers to sell and convey such of its lands as were not used or dedicated to municipal purposes. * * # It is, indeed-, urged that the county authorities could only sell its lands for money. We do not accede to this proposition. If they possessed the power to sell for money, we are pointed to no express provision of law that restricts them from selling for money’s worth. * * * It is straining no principle of law or of good sense to regard the payment of an annual tax as equivalent, for the purpose of our present inquiry, to the payment of a rent. The amount, as well as the nature of the consideration received by the county in exchange for its lands, if it had the power to sell them, was a matter that concerned the connty only. * * * It may, perhaps, be said that what is forbidden is a resort to the taxing power where the municipality has received no consideration. But, as we have shown, the county in the present case paid no money and issued no bonds requiring any exercise of the taxing power. It was the case of a sale, in consideration of money paid down and to be paid in the form of taxes, in addition to the great advantages to inure to the public. ’ ’
Now, the principle involved in that case is the same as in this. While the railroad company paid some money consideration, the main consideration was the increased revenues and the great advantages to inure to the public through the construction of the railroad.
If the county has the power to take the public advantage into consideration at all, it has the right to base the conveyance entirely upon that as the moving consideration.
The same principle is 'announced in ithe case of Keatley v. County Court, 70 W. Va. 267, where the county court, for a consideration of $5,000, attempted to convey a piece of property worth $12,000 to the United States Government for the purpose of erecting a public building thereon. The court of appeals of that State decided that the county court had the right to take into consideration the other benefits to accrue, besides the actual money consideration.
So, in the present case, we are of the opinion that where the county court is by statute clothed with power to sell and dispose of the county property not dedicated to specific use, it may determine what consideration shall be accepted, and unless there is fraud shown, the judgment of the county court will not be disturbed.
Mere inadequacy of consideration is not sufficient to establish fraud.
Nor does this view conflict with the provision of the Constitution that “No county, city, town or other municipal corporation, shall become a stockholder in any company, association or corporation, or obtain or appropriate money for, or loan its credit to any corporation, association, institution or individual.” Const. 1874, § 5, art. 12.
The disposition of real estate owned by the county is not an appropriation of money within the meaning of the Constitution, nor, as was said by the Supreme Court of the United States in the case cited above, is the taxing power involved in any way in the transaction.
Our conclusion is that the allegations of the complaint were sufficient, and that the conveyance made under the order of the county court is valid, and that the court erred in sustaining the demurrer. Beversed and remanded with directions to overrule the demurrer.
Kirby, J., dissents. | [
-12,
-18,
-8,
12,
-102,
-64,
58,
-72,
65,
-87,
117,
83,
47,
-64,
25,
41,
-29,
125,
101,
105,
-28,
-78,
65,
99,
-14,
-77,
-5,
-57,
-80,
-51,
-12,
-41,
76,
32,
-54,
21,
-42,
66,
-57,
30,
-50,
15,
11,
72,
-47,
-64,
52,
107,
82,
75,
113,
-114,
-14,
44,
85,
-54,
41,
44,
73,
47,
81,
-6,
-70,
-123,
127,
7,
1,
68,
-104,
7,
-22,
10,
-104,
57,
-120,
-24,
83,
-74,
-122,
116,
11,
-103,
12,
40,
98,
10,
9,
-1,
-24,
-103,
6,
-66,
-115,
-90,
-64,
105,
67,
75,
-106,
30,
92,
18,
70,
-10,
-22,
-124,
25,
108,
-125,
-57,
-46,
-93,
39,
108,
-98,
19,
-17,
15,
52,
96,
-49,
114,
94,
71,
50,
-101,
-114,
-48
] |
Hart, J.',
(after stating the facts). The court gave the following instruction at the request of the defendant:
“No. 5. You are instructed that if defendant had reason to believe he or any one at his house would probably be attacked, then as a matter of law he had a perfect right to arm himself and prepare not only for his own defense, but that of his home and all persons being • therein at the time; and if deceased, either alone or with others acting with him, advanced upon defendant’s home for the purpose of renewing a difficulty with or attacking any person therein, defendant would not be required to retreat, but may stand his ground and meet force with force, and if necessary to prevent either himself or any person in his home from receiving great bodily injury at the hands of the deceased, or him and those with him and acting with him, either or all of them, or if situated as he was, viewing the facts and circumstances as they appeared to him, and from his standpoint he had reason to believe and did believe he or any person at his house was in imminent and immediate danger of losing his life or receiving some great bodily injury at the hands of the deceased or him and those acting with him, any or either of them, and in good faith, without fault or negligence on his part, he shot and killed the deceased, then such killing would in law be justified, and' you should acquit the defendant, although you may believe such killing unnecessary or that such danger did not exist.”
Counsel for defendant also asked the court to give additional instructions with reference to the defense of his habitation, and error is assigned because the court refused to give them. Counsel contends that instruction No. 5, above set out, limited the right of defendant to shoot the deceased to the defense of his own person or some inmate of his house, but omitted to charge the jury with reference to the right of the defendant to defend his home.
We do not think this instruction restricted or limited the defendant to a defense of his own person or some inmate of his house. It went further, and, -in plain and express terms, also submitted to the jury the law of justifiable homicide in the defense of the defendant’s home. In addition to instruction No. 5, the court, at the request of the defendant, read to the jury sections 1795 and 1796 of Kirby’s Digest, which are as follows:
“Section 1795. Every man’s house or place of residence shall be deemed and adjudged, in law, his castle.” “Section 1796. A manifest attempt and endeavor, in a violent, riotous, or tumultuous manner to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein shall be a justification of homicide.”
It is next insisted that the court erred in refusing to give instruction No. 3, at the request of the defendant. The instruction is as follows:
“You are further instructed that the right given a man to defend his home against invasion and violence extends to and includes the immediate premises surrounding and environing the house, whether the same is fenced as a yard or not. If you believe from the evidence in this case that deceased, either on his own initiative or with others acting with him, entered the yard or immediate territory surrounding defendant’s house and in close proximity to the house and a part of the house premises, in a violent, riotous or tumultuous manner with intent to offer personal violence to any person in or about the house, or thought to be there, and defendant situated as he was, and viewing the facts and circumstances from his standpoint, acting as a reasonable person, believed it necessary to slay the deceased to prevent such invasion and violence, and so believing he shot and killed the deceased, then in law such killing would be justified, and you should acquit the defendant.”
We do not think the court erred in refusing to give this instruction. The first sentence of the instruction, in effect, told the jury, as a matter of law, that the rights given a man to defend Ms home extended to the premises surrounding it, regardless of the fact of whether the person intended to enter the dwelling house or not. At the common law an assault upon a man’s house was an assault upon himself, and he could therefore repel such an assault by the force necessary to defeat it. In discussing sections 1795 and 1796 of Kirby’s Digest, in the case of Brown v. State, 55 Ark. 593, Mr. Justice Mansfield, speaking for the court, said:
“Following the doctrine of the common law, the statute regards the violent attempt to enter the house as equivalent to an assault upon the person to be injured; and when it is obviously about to be made, he may at once put himself in an attitude to repel the aggressor. It was not practicable to give a rule applicable to all cases for determining what acts or conduct will constitute the actual attempt to enter a house. But it must be a ‘manifest’ attempt; and'we take this to mean one so plainly made that no reasonable doubt will exist as to the purpose of the aggressor. At what point the effort to enter the house was begun, and how far it may be permitted to proceed with safety to the life or person of the individual assailed, must be determined by the circumstances of each case. And these are questions more of fact than of law.”
In the case of the State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200, the court said:
“The idea that is embodied in the expression that a man’s house is his castle, is not that it is his property, and, as such, he has the right to defend and protect it by .other and more extreme means than he might lawfully use to defend and protect his shop, his offices, or his barn. The sense in which the house has a peculiar immunity is, that it is sacred for the protection of his person and of Ms family. An assault on the house can be regarded as an assault on the person, only in case the purpose of such assault be injury to the person of the occupant or members of his family, and, in order to accomplish tMs, the assailant attacks the castle in order to reach the inmates. In this view, it is said and settled that, in such case, the inmate need not flee from his house in order to escape from being injured by the assailant, but he may meet him at the threshold, and prevent him from breaking in by means rendered necessary by the exigency; and upon the same ground and reason as one may defend himself from peril of life, or great bodily harm, by means fatal to the assailant, if rendered necessary by the exigency of the assault.”
It is next insisted by counsel for' defendant that the evidence is not sufficient to warrant a verdict of murder in the second degree. In the ease of Brown v. State, supra, the court held that an attack upon a man’s dwelling is regarded in law as equivalent to an assault upon Ms person, .and that in order to justify a killing in defense of one’s house, or of the inmates thereof, it is not necessary that there should be actual danger, provided the defendant acts upon a reasonable apprehension of danger. But the court further said that it is the duty of the householder to prevent the entry by means not fatal, if he can do so consistently with Ms own safety. So it may.be said that if the defendant kills where there are no reasonable grounds of apprehension of danger it is manslaughter; and if the killing is done with malice, express or implied, it is murder. Even though the deceased is attempting at the time unlawfully to enter the defendant’s dwelling house, if the killing is with malice and ill will, and not for self-protection or the protection of the house, it is murder. See State v. Scheele, 57 Conn. 307, 14 Am. St. Rep. 106. For, as it is there said, “the law of self-defense, or the defense of one’s domicile, does not require the giving to- evil-minded persons an op$ortunit3r to take the life of another on such easy terms.” Of course, if the testimony of the defendant is to be believed, he shot the deceased at the time the latter was violently attacking him with a knife, and the killing was done in .self-defense. On the other hand, according to the evidence adduced by the State, the defendant had taken the gun away from the deceased and had. extracted the shells therefrom. The deceased was unarmed, and was not in any way resisting the defendant or endeavoring to do him bodily harm. When the defendant drew his gun on deceased he begged defendant not to shoot him, and grabbed the gun in an effort to prevent the defendant from shooting him. The defendant, with the assistance of Steve Whitley, jerked the gun away and immediately drew it on the deceased and killed him. The deceased at the time was begging him not to shoot him, and had several times insisted that he was not going to harm the defendant or try to enter his house. The defendant was talking in a loud and angry manner and applying vile epithets to the deceased and his companion, telling him that they would have to turn back and not travel the road any further. If the jury believed this testimony, there is nothing from which it might reasonably have inferred that the deceased intended violence to the person of the defendant or that he was attempting to enter defendant’s dwelling house. The jury might have found that the killing was without provocation and that the defendant was moved by a depraved mind, regardless of human life, without the specifically formed design to take human life essential to murder in the first degree. Under such circumstances, the defendant would be guilty of murder in the second degree, and the evidence was sufficient to warrant the verdict. It was the peculiar province of the jury to weigh the testimony of the witnesses, and this court is not at liberty to reduce the punishment, even though we might think it too severe.
Finally, it is contended by counsel for defendant that the judgment should be reversed on account of certain prejudicial remarks made by the prosecuting attorney in the course of his argument. The remarks of the prosecuting attorney do not appear in the bill of exceptions, but are only set out as exhibits to the motion for a new trial. It is the office of the bill of exceptions to bring upon the record matters which do not appear upon the record proper, and errors which do not appear in the bill of exceptions can not be reviewed on appeal, although set out in the motion for new trial. Wolfe v. State, 107 Ark. 29, and cases cited.
We find no prejudicial error in the record, and the judgment will be affirmed. | [
-15,
-20,
-100,
-66,
8,
96,
42,
-8,
-32,
-30,
-94,
-13,
107,
-54,
5,
42,
-79,
105,
85,
105,
124,
-93,
31,
67,
-74,
-37,
19,
-43,
54,
-49,
-2,
31,
13,
112,
-30,
-47,
102,
10,
-27,
-36,
-122,
-115,
-70,
97,
-105,
82,
32,
58,
108,
10,
49,
30,
-77,
10,
27,
-86,
9,
40,
74,
44,
-46,
-8,
-98,
-113,
-23,
15,
-77,
39,
-100,
35,
120,
36,
24,
53,
1,
-24,
113,
-76,
-127,
86,
79,
11,
44,
98,
99,
-128,
109,
-52,
-72,
-85,
47,
118,
-97,
38,
24,
1,
75,
44,
-74,
-65,
122,
52,
62,
112,
-27,
92,
89,
108,
10,
-105,
-44,
-77,
-51,
112,
-102,
-127,
-21,
5,
48,
49,
-114,
-86,
94,
69,
85,
-13,
-114,
-40
] |
Wood, J.,
(after stating the facts). Section 4 of the act under which the condemnation of the property was obtained by the appellant provides, among other things, that “if the use or enjoyment of the property is needed forthwith for the construction of any building or prpper carrying on of any school,” the district may “request the court, or the judge thereof, at a convenient day, notice of such application being given such owner, to fix a proper sum of money to be deposited as security for the payment of such damages as may be assessed, whereupon they shall have authority to take immediate possession of such premises for uses as set up in their petition.”
Section 5 of the act provides, “If the damages or proper compensation for such property are not agreed upon before the case is called for trial in its regular order, a jury shall be'empanelled who, after hearing all the testimony, shall fix the compensation to be paid by such district, not exceeding the actual- value of the land taken,” etc.
And section 6 provides: “After the compensation is so fixed by the jury, as in the preceding section provided, the school district shall, within sixty days thereafter pay to the owner of said property, or to the clerk of the court wherein such verdict was rendered, the amount of such verdict, and the court shall thereupon enter an order condemning said property and vesting the title in the same for school purposes in said district; provided, either party shall have the right of appeal from any such order or judgment.”
It thus appears that the power conferred upon school districts under the above act to condemn private property for school purposes is similar to the power of eminent domain conferred upon railroad corporations. See Kirby’s Digest, § § 2947 and 2951 to 2957 inclusive.
In Kansas City Southern Railway Co. v. Boles, 88 Ark. 533, we held that the value of the land taken for right-of-way purposes was to be estimated as of the time when the petition for condemnation was filed. So here, appellee was entitled to have his compensation from the time that the appellant filed its petition to condemn his land and the jury, in awárding damages, estimated the value of the land at the time the petition was filed. Their award included the value of the land and all appurtenances thereon and the value of all crops growing thereon. It was tantamount to a sale from appellee to appellant with the surrender of the immediate possession to appellant, for this statute contemplates that the school district shall have the right to the immediate possession of the premises upon complying with the provisions of the statute in securing the compensation therefor to the owner, and, while the title to the property is not divested out of the owner and vested in the school district until the court shall have made an order condemning the property and vesting the title to same in the school district, nevertheless the district is entitled to the possession from -the time it pays the amount of the award to the owner of the property or to the clerk of the court wherein the verdict was rendered for the owner’s benefit. Tbe purpose of the statute was to give .the school district the right of immediate possession upon the payment of the amount of compensation awarded by the jury, if possession had not been previously taken by order of the judge of the court upon securing the amount of such damages under section 4. The right to take immediate possession is conferred upon the school district when these damages are secured by a deposit as provided in section 4, and, if this is not done, then, construing the whole act, we are of the opinion that it was the purpose bo give bhe districb the right to the possession as soon as the compensation was paid, whether the order of th^ court condemning the property and vesting the title was immediately made thereafter or not.
If the school district pays into court the amount awarded as fixed by the jury, it is entitled to possession of the property from that time, the same as if it had purchased the same outright with a contract for immediate delivery, and if the owner, upon demand of possession by the district, refuses to surrender the same, whatever damages in the meantime may result to the district by reason of the refusal of the owner to surrender possession accrue to the district and the owner is liable to the district for the same.
The right to the possession of the property became absolute in the district upon the payment of the compensation into court as prescribed by the statute, and when the order of court was made vesting the title in appellant it related back to the date of the filing of the petition for condemnation. If the owner continues in possession after the compensation has been paid into court he, from that time on, is a mere tenant by sufferance. 15 Cyc. 926 and 1023. See, also, Fort Wayne & S. W. Traction Co. v. Fort Wayne & Wabash Ry. et al., 16 L. R. A. (N. S.) 543.
It follows that the complaint stated a cause of action^ and the court erred in sustaining -appellee’s demurrer thereto and in dismissing the complaint. The judgment is, therefore, reversed, and the cause will he remanded with directions to overrule the demurrer. | [
-14,
-18,
-44,
60,
-101,
96,
122,
-104,
97,
-29,
38,
83,
111,
-38,
16,
45,
-13,
-23,
-43,
58,
68,
-93,
67,
-62,
-110,
-77,
-45,
77,
57,
76,
100,
-41,
76,
48,
-62,
-75,
70,
-62,
77,
16,
14,
-90,
-117,
64,
-55,
96,
60,
122,
26,
11,
49,
-2,
-5,
32,
24,
71,
79,
44,
123,
-27,
65,
-80,
-70,
69,
127,
7,
-79,
-92,
-100,
67,
72,
-24,
-104,
61,
11,
-23,
123,
-74,
23,
-12,
9,
-117,
8,
98,
102,
17,
52,
-49,
-8,
-119,
14,
-42,
13,
-90,
21,
89,
98,
45,
-106,
29,
117,
20,
71,
126,
-25,
-123,
31,
108,
5,
-53,
-10,
-109,
-113,
44,
-102,
3,
-49,
35,
48,
101,
-56,
-90,
94,
71,
118,
-101,
15,
-3
] |
Hart, J.
Appellant prosecutes this appeal to reverse a judgment of conviction against her for the crime of grand larceny. The facts are as follows:
J. B. Reynolds lived in South Hot Springs, in Garland County, Arkansas, and on the night of the 24th of June, 1913, went into the city for the purpose of attending a lodge. The lodge did not open, and he went to a rooming house on Benton Street to visit a friend and stayed there nntil about 10:30 o ’clock. When he started home he met appellant, and she asked him if he did not want a room. He replied that he did not. Appellant then walked np close to him and placed her hands upon him. She talked to him for about a minute and then left him. Reynolds then proceeded on his way, and when he had gone about a half a block he discovered that appellant had taken his pocket book, containing ten one-dollar bills and two ten-dollar bills. A witness for appellant testified that on the night in question she was with appellant at the home of Eva Jordan, drinking beer, and that appellant did not leave the house from 7 o ’clock in the evening until midnight.
■ Counsel for appellant first -assigns as error the action of the court in overruling her motion for a continuance. Appellant, in her motion for continuance, which was duly verified by her, stated that Ophelia Brown and Will Scofield, if present, would testify that on the night of the 24th of June, 1913, they were with her at the home of Eva Jordan, in Hot Springs, and that appellant did not leave the house from about 7 o’clock in the evening until after midnight. Appellant further stated that the case was set for trial during the fall of 1913; that she was ready for trial and had all her witnesses present, including Ophelia Brown and Will Scofield; that the prosecuting attorney stated that on account of the numerous eases pending in court he would not be able to try the case against her at that term of the court, and that she understood that the case had been continued for the term; that the absent witnesses lived in Little Rock, and that they left for their homes; that on the third day of January, 1914, she received knowledge- that the case had been set down for trial on the 8th inst.; that she immediately caused a subpoena to be issued for said witnesses, and sent the same to the sheriff of Pulaski County; that on the 8th day of January, 1914, the sheriff of Pulaski County returned said subpoena unserved and marked “not found.” The attorney for appellant also testified that he understood that the'ease had been continued for the term, but says that he does not know whether the witnesses for appellant were then present in court; that ■ as soon as he found out that the case had been reset, he caused a subpoena to be issued for the absent witnesses, ■and sent it to the sheriff of Pulaski County for service. The question of granting continuances calls for the exercise of discretion by the trial court, and, unless there has been an abuse of the discretion, the ruling of the trial court will not be disturbed. Hamer v. State, 104 Ark. 606; Striplin v. State, 100 Ark. 132; Jackson v. State, 94 Ark. 169; Bevis v. State, 90 Ark. 586.
The record does not show that the trial court made any order continuing the case against appellant for the term. Appellant says that she understood that the court had made such an order and that her witnesses were in attendance at the trial, and that the absent witnesses immediately left for their homes in Little Eock. She did not know their street number, and made no effort to ascertain it. She did not keep in communication with the witnesses, and made no further effort to ascertain if they were in Little Eock until the case was again set for trial in January, 1914. The record does not show that she had had a subpoena issued for them in the first instance, or that she took any legal steps whatever to procure their attendance until the case was set for trial in January, 1914. The sheriff of Pulaski County was not able to find the witnesses in the city of Little Eock, and the presumption is that they had left there. The appellant did not attempt to keep in communication with them, and does not pretend to know where they now are. There is nothing to show that the witnesses are'now within the jurisdiction of the court and that their, attendance could be procured hereafter. These were all proper matters to be considered by the court in passing upon appellant’s motion for continuance; and we are of the opinion that it did not abuse its discretion in refusing it.
Counsel for appellant next insists that the court erred in giving an instruction at the instance of the State on the defense of an alibi, and relies upon the case of Woodland v. State, 110 Ark. 15, to sustain his contention. In that case the court said that the jury was not told, as it should have been, that although the burden of establishing- the defense of an alibi as an affirmative fact was upon the appellant, yet if the evidence which he had offered in support of the defense, taken in connection with all the other evidence in the case, was sufficient to raise a reasonable doubt of appellant’s guilt, the jury should acquit. The judgment was reversed because the court refused to give such an instruction at the request of appellant, and because the instruction on the defense of an alibi, as given by the court, did not cure the error in refusing to give the instruction asked by appellant.
We do not deem it necessary to set out the instruction complained of, for an instruction in the same language was approved by this court in the case of Ware v. State, 59 Ark. 379, and Rayburn v. State, 69 Ark. 177. In the latter case the court said, in substance, that the effect of the instruction complained of was that, if the evidence of appellant which tended to prove an alibi was such that — taken together with the other evidence — the jury were left in reasonable doubt as to whether the appellant was present when the crime was committed, they should acquit him. An instruction on the defense of an alibi was given in this case at the request of counsel for appellant, and in the language asked by him. This shows that the court did not mean, in the instruction complained of, to shift the burden upon appellant to prove his innocence. If counsel for appellant thought the instruction was susceptible of that meaning, he should have called the court’s attention to it, and, no doubt, the court would have changed its form to meet his objection.
The indictment charges the ownership of the money stolen to be in J. R. Reynolds. The prosecuting witness testified that his initials were “ J. B.,” instead of “ J. R.” His testimony, taken before the grand jury, which was signed by him, was thought to be signed “J. R.,” and, on this account, the prosecuting attorney, in drawing the indictment, charged that J. R. Reynolds was the owner of the money stolen. It appeared that the letter “B” in the name of the prosecuting witness, in his signature to the minutes of the grand jury, closely resembled the letter “R.” The larceny was committed on the 24th day of June, 1913, and the prosecuting witness was carried to the jail, where appellant was confined, on the 26th inst., and there identified her as the person who had taken the money from him. The court instructed the jury, in substance, that the question of the identity of the person described in the indictment as the owner of the money charged to have been stolen with the one mentioned in the evidence is one of fact, and that if the jury believed from the evidence, beyond a.reasonable doubt, that the prosecuting witness, J. B. Reynolds, is the identical person named in the indictment as J. R. Reynolds, there is no variance between the proof and the indictment. Counsel for appellant assigns as error the action of the court in giving this instruction, and relies upon the case of Blankenship v. State, 55 Ark. 244. In that case the court held where an indictment for larceny charges.the goods stolen to have 'been the property of J. P. Kirby and G. W. Leggett, and the evidence shows that they were the • property of J. P. Kirby and E. S. Leggett, the variance is fatal, unless the goods alleged to have been stolen are described in other respects with such certainty as to identify the act. We do not think that case is an authority for the position taken by counsel for appellant. There E. S. Leggett and Gr. W. Leggett were different persons. Here the proof shows that J. B. Reynolds and J. R. Reynolds were the same person. The facts in the present case bring it within the rule announced in the case of Bernhard v. State, 76 Ga. 613. Bernhard was charged with stealing cotton, and the court said, with reference to a contention precisely similar to the one now made, that where the cotton was alleged to belong to a man whose first initial was “J,” and the proof showed that it was “I,” or vice versa, there was no error in instructing the jury that if the initial was written wrong by mis take in the indictment the proof .of ownership in the person bearing the true name would be sufficiently made. The court further said that the letters “I” and “J,” are often written exactly alike. So it may be said here, the letters “R” and “B” are often written so that they closely resemble each other, and the one may be mistaken for the other. The proof shows that the prosecuting attorney was misled by the signature of the prosecuting witness to the grand jury minutes, and in this way the mistake occurred. The court committed no error in giving the instruction.
The evidence was sufficient to warrant the verdict, and the judgment will be affirmed. | [
-15,
-22,
-4,
62,
58,
-32,
42,
-72,
114,
-125,
-75,
-45,
-81,
-50,
8,
113,
59,
125,
116,
121,
-60,
-73,
23,
34,
-46,
-69,
89,
-43,
-71,
77,
-92,
-12,
12,
32,
78,
-39,
70,
72,
-127,
24,
14,
-123,
-87,
-32,
81,
98,
48,
59,
104,
75,
97,
-98,
-29,
40,
22,
94,
76,
109,
107,
63,
120,
113,
-102,
29,
-113,
36,
33,
38,
-108,
1,
-56,
60,
-104,
-79,
32,
-24,
115,
-76,
6,
116,
79,
-101,
8,
96,
98,
0,
125,
-93,
-88,
9,
46,
62,
-99,
-89,
-16,
73,
75,
105,
-66,
-99,
43,
20,
7,
122,
-20,
-35,
93,
40,
11,
-49,
-106,
-79,
-83,
41,
-110,
19,
-29,
5,
116,
113,
-49,
-30,
93,
68,
113,
-101,
-113,
-15
] |
McCulloch, C. J.
Appellant is a railway company, duly incorporated under the laws of the State of Arkansas, and is engaged in building a railroad from Tontitown to Fayetteville, and in doing so constructed its road across a small tract or lot of land owned by appellee near Fayetteville, in Washington County.
The case was tried in the circuit court as an action for damages for taking the right-of-way without compensation therefor, but it originated in the chancery court, whence it was transferred to the circuit court.
The lot in controversy owned by appellee was situated in the outskirts of the city of Fayetteville and fronted on a public road. It was 100 feet in depth by fifty-five feet in width, and there was situated thereon a small frame building in which appellee was conducting a mercantile business, finding a line of customers among the employees of a near-by manufacturing plant. Fifty feet of the front end of the lot was taken by appellant company and its road constructed across it, and the company moved the storehouse back upon the remaining fifty feet. That detached the property from the public road and made the storehouse front upon the railroad track without any outlet to the public road or street.
Appellee proved damages to his' property sufficient to warrant the jury in awarding him the sum of $350 as compensation for the loss sustained.
The citizens of Fayetteville were interested in inducing appellant to build its line of railroad to that city, and, in order to do so, proposed to make a donation to the company, an,d also to obtain the right-of-way from Tontitown to Fayetteville. Mr. J. H. Mcllroy, a member of a business institution of the city known as the Commercial League, was appointed as chairman of a committee to acquire the right-of-way for the railway company. lie approached appellee for the acquisition of the front half of his property, and, after some negotiations, he entered into a written agreement as follows:
“June 26, 1912.
“J. H. Mcllroy, Chairman of R. of Way Com., Kansas
City & Me. Ry. Co.
“Dear Sir: I propose the following settlement in consideration of the payment to me of $100 in cash, or you acquire me a strip of land on the north end of my lot fifty feet from north to south and of equal with my lot, and the moving of my store building back north about sixty feet from present location, I agree and bind myself to convey to said railway company by good and sufficient warranty deed free from any incumbrance a strip of ground fifty feet in width off of the south .end of my lot which is fifty-five feet in width, and the above settlement shall cover any and (all) damage to which I may be entitled by reason of the building of said railroad.
“C. B. Smithson.”
This contract was entered into between Mr. Mclllroy and appellee at the latter’s store, and at that time the railway company was constructing its line and was then engaged in work near appellee’s property. Appellee asserts and attempts to prove, that at the time he entered into this contract Mr. Mclllroy represented to him that the railroad would be constructed along the line- of the public road, and that by an agreement with the county court, the public road would be moved farther north and run through the front end of appellee’s property. This arrangement would have given appellee a frontage on the public road, the same as before the construction of the railroad. Appellee introduced other witnesses whose testimony tended to corroborate his assertion, and there is also proof to the effect that Mr. Mclllroy verbally made an arrangement with the county judge whereby the line of the railroad could be constructed along the public road; but the company, in constructing its road, failed to grade off and prepare the public road and its use of the old road was stopped by an injunction.
Appellee commenced this suit in the chancery court, as before stated, and, after setting up the foregoing facts, asked that the written contract be rescinded, and that he be awarded compensation for the damage to his property.
Appellant demurred td the complaint, and the court overruled the demurrer, but, treating it as a motion to transfer, ordered the cause transferred to the circuit court, where, as before stated, it was tried, and the trial resulted in a verdict in favor of appellee.
The evidence establishes very clearly, we think, the fact that when appellee and Mr. Mclllroy entered into the written contract, they both thought that the public road was to be run through appellee’s lot so that his storehouse, when removed to the back end of the lot, would be built along the line of the old road. In other words, the parties were contracting -for the use ,of a part of appellee’s lot for the purpose of establishing a public road on it, and not for the purpose of running a line of railroad through and over it. Now, instead of using the part of the lot taken for that purpose, the railway company has seen fit to depart from that intention, and, leaving the public road where it is now, to construct its railroad over appellee’s lot between the storehouse as at present located and the old road, thus rendering the remainder of his property of very little value.
No rule of evidence was violated in permitting appellee to prove this state of facts, for it did not vary or contradict the terms of the contract, but only explained the subject-matter thereof. It clearly establishes a mutual mistake on the part of both participants in the negotiation as to what they were really contracting about, that is to say, the purpose for which'the acquired right-of-way was to be used.
The plainest principles of equity applied to those circumstances demand that appellee be given the right of rescission, for it appears that, without his consent and without fault on his part, the right-of-way for the construction of a new public road was made use of for the purpose of constructing a railroad. Fleischer v. McGehee, 111 Ark. 626.
But inasmuch, as appellant, by its own act in disregarding the original purpose and taking the property for use in constructing the road, has made a rescission of the contract impossible, it should be required to respond in damages for thus altering the purpose of the contract. The jury has awarded damages in a sum which we think the evidence clearly sustains.
Appellee sought the appropriate remedy by going into a court of equity, and the case should not have been transferred to law; but inasmuch as the correct result was reached, there was no prejudice from transferring the cause.
The judgment of the court being correct upon the ■evidence, and one which we would affirm if it came to us on appeal from the chancery court,, it follows that there must be an affirmance of the judgment of the circuit court, and it is so ordered. | [
-16,
-18,
-72,
108,
-118,
104,
8,
-102,
65,
-95,
37,
83,
-115,
-52,
0,
97,
-29,
89,
-59,
43,
100,
-77,
7,
99,
-46,
-77,
-77,
-57,
-78,
-55,
-28,
-41,
77,
32,
-54,
-35,
-58,
74,
-51,
-100,
-114,
-88,
-53,
104,
-39,
72,
52,
123,
22,
71,
81,
63,
-10,
42,
28,
-53,
105,
62,
-17,
42,
81,
113,
-118,
77,
117,
23,
33,
38,
-100,
7,
-22,
58,
-104,
53,
13,
-88,
87,
-90,
-122,
116,
9,
-99,
8,
42,
98,
33,
13,
-17,
96,
-120,
14,
-4,
-115,
-91,
-90,
9,
67,
3,
-106,
-107,
88,
-106,
71,
-2,
-32,
13,
80,
44,
5,
-81,
-76,
-79,
7,
116,
-105,
19,
-21,
1,
48,
96,
-51,
102,
93,
71,
58,
-101,
15,
-35
] |
McCulloch, C. J.
This is an action to recover the amount of a benefit certificate or policy issued by appellant, a fraternal benefit society, to one of its members, William L. Wood, who died on June 10, 1913. The policy was payable to appellee, who is the infant son of the member.
The application, which formed a part of the contract, contained the following provision:
“I further agree that if, within two years after the date of my taking or receiving said Workman degree, my death should occur by suicide, whether sane or insane, except in delirium resulting from disease, or while under treatment for insanity, or after a judicial declaration of insanity, then the only sum which shall.be paid, or which is payable to my beneficiary in my benefit certificate, shall be the amount which I may have paid into the beneficiary fund of the order during my term of membership. ’ ’
The dead body of William L. Wood was found in a bedroom adjoining his store in Camden in the early morning of June 10,1913, and the evidence tends to show to a certainty that his death was caused by swallowing carbolic acid.
The sole issue of fact presented in the trial below was whether the acid was taken by accident or whether with suicidal intent.
No exceptions were saved to the instructions of the court. Therefore, the only question presented here is whether or not the evidence was-sufficient to sustain the verdict.
Deceased was in the grocery business in Camden, Arkansas, and resided with his wife and son, the appellee herein, in that city. The evidence, as abstracted, does not show how far it was from his store to his residence. He and his wife occupied the same room but separate beds, and she testified that the last she saw of him was when he retired the night before his body was found in the room at the store. She testified that she did not know when he left the room, but when she was summoned to the store early next morning about 6 o ’clock she found the body still warm, as if death had ensued only a short time before. The body was found lying across the bed, in a small bedroom next to the store, about 5 o’clock in the morning. The body was face downward, stretched across the bed, and the cover was partly turned down. The hands of deceased were extended forward and reached slightly over the edge of the bed. There was a strong odor of carbolic acid in the room and a broken bottle containing a little of the acid was found on the floor over behind the bed. The mouth of deceased gave indications that he had swallowed some of the acid. It was a six-ounce bottle, and one of the broken ends of the bottle contained a small amount of the acid. The evidence tends to show that Wood purchased the bottle of carbolic acid a few days before his death for the purpose of administering treatment to a horse which was worked to his delivery wagon. There were a number of other bottles on a shelf'in the room, among others a bottle of chill tonic and a bottle of pepsin. A physician testified that Wood suffered with indigestion and the use of pepsin had been prescribed for that ailment.
There was some testimony adduced by appellant to the effect that Wood brooded over the death of his little daughter, which occurred about a year before his death, and that he had become to some extent morose, and thus formed a suicidal intent, which he carried out by swallowing the carbolic acid.
Other testimony adduced on behalf of appellee tended to show that deceased maintained a cheerful disposition up to the time of his death, and that his conduct displayed no disposition on his part to shorten his life.
Several physicians were introduced as witnesses, who testified as experts on the question whether carbolic acid in sufficient quantity to produce death would likely have been unintentionally swallowed by deceased, or whether it would have been expelled from the mouth without swallowing it if there had been no intention to take the dose. There was a conflict in the testimony on that question. One of the physicians testified that it was possible for a person to take, by mistake, carbolic acid out of a bottle in quantity sufficient to produce death.
We are of the opinion that the evidence was sufficient to warrant the jury in finding that deceased’s death resulted from accident in taking the carbolic acid by mistake, and not from taking it with suicidal intention.
The human instinct of self-preservation raises a presumption against suicide, and, as it was not conclusively shown that deceased came to his death as the result of an act committed with suicidal intent, the jury had the right to draw the inference that death resulted from accident, and not as the result of the use of carbolic acid with suicidal intent. Grand Lodge, etc., v. Banister, 80 Ark. 190.
The evidence shows that the mother and guardian of appellee, the beneficiary under the policy, in making out proof of loss, stated that the death of deceased resulted from suicide, and appellant cites authorities to the effect that, in a suit on the policy, this constitutes prima facie evidence of suicide.
That question is not presented, for, as has already been stated, there were no exceptions saved to the instructions, and we have only before us, for decision, the question of the sufficiency of the evidence.
Whether the statements in the proof of loss changed the burden of proof, we need not decide, but, aside from that question, the jury had the right, in weighing the evidence, to draw inferences from the human instinct of self-preservation in determining whether or not death resulted from suicide, or resulted from accident. This is so, regardless of the question where the burden of proof in the case rests.
Error is assigned in the ruling of the court in refusing to permit counsel for appellant to propound the following hypothetical question to an expert witness:
“Assuming that there is a shelf six inches wide, and four or five bottles on it, one bottle of ink, and a bottle of liniment, and a bottle of antiseptic, and a bottle of essence of pepsin, and one of chill tonic, and a bottle of pure carbolic acid, and one of coal oil, and a party was found with a lot of carbolic acid that bad run out of Ms moutb and had run down his cheek, enough to burn it, and there was a splotch of carbolic acid on the floor, and a splotch over behind the bed, and a man was lying in repose on his left arm, the cover practically undisturbed, or rather smooth, and the bottle was broken behind the bed, and the odor of carbolic acid being pronounced, in your opinion, would you say death resulted from suicide, or whether it was accidental?”
That witness, as well as others introduced by appellant, were permitted to testify as experts as to the effect of swallowing carbolic acid; but it will be observed that this question submitted to the witness the issue to be determined by the jury, namely, whether all the evidence in the case showed that the acid was taken with suicidal intent, or by mistake.
The parties had the right to take the opinion of experts upon questions involved in the case wMch could only be answered by those who have expert knowledge on the subject; but it was improper to submit to an expert all the evidence in the case and take Ms opinion upon that issue, for that would amount to an evasion of the province of the jury. Castaine v. United Railways Co., 249 Mo. 192.
It was entirely proper to ask the opinion of the witness concerning the effect of swallowing carbolic acid in a given quantity and under given circumstances, but it would have been Mghly improper to have permitted this witness to sum up all the evidence in the case, in matters not exclusively within the knowledge of an expert.
There is one other question in the case properly raised, and that relates to the qualifications of one of the jurors who sat in the trial of the case. The juror in question was a member of the regular panel, and was accepted by the parties as one of the jurors in this case. Several months before the trial, he had been adjudged insane and sent to the State Hospital for Nervous Dis eases, and confined there for a short period, when he was paroled. He was regularly selected on the jury, probably without knowledge on the part of those who selected him, and served throughout the term of the court. The sheriff and some of the other officers about the court knew of this fact, but it appears not to have been within the knowledge of the attorneys on either side of this case. Appellant’s attorneys ascertained the status of the juror after the trial of the case and" incorporated the point of his incompetency as one of the grounds for a new trial. A number of affidavits produced by appellee — those of the sheriff and quite a number of jurors who served with the one in question — all state that he was perfectly sane and in normal mental condition, and that they discovered nothing wrong with him throughout his service of about three weeks on the jury.
If it be conceded that the juror was technically disqualified from jury service by reason of his not having been legally emancipated from the disability of insanity, the proof shows with reasonable certainty that he was not, in fact, mentally disqualified from performing jury service, and that no prejudice resulted from his being accepted on the jury.
The statute provides that “no verdict shall be void or voidable because any of the jurymen fail to possess any of the qualifications required.” Kirby’s Digest, § 4494.
Pursuant to that statute, we have held that objection after verdict, on the ground of disqualification of a juror, comes too late. James v. State, 68 Ark. 464.
We are of the opinion that there was no error in refusing to grant a new trial on account of the technical disqualification of the juror.
There are other assignments, but nothing else which we deem it necessary to discuss. Judgment affirmed. | [
50,
109,
-4,
-115,
8,
-32,
42,
56,
90,
-31,
37,
83,
-1,
-16,
28,
103,
115,
125,
-47,
105,
-75,
-109,
23,
11,
-46,
-73,
113,
-59,
-79,
95,
-3,
-36,
77,
32,
-22,
0,
-62,
-54,
-59,
-40,
-114,
4,
-120,
-31,
89,
80,
48,
-9,
-36,
11,
117,
-98,
-93,
42,
20,
-50,
45,
108,
89,
40,
80,
-79,
-117,
7,
-1,
19,
1,
70,
-100,
13,
-22,
8,
24,
-75,
0,
-8,
120,
54,
-122,
84,
113,
-115,
13,
102,
102,
37,
17,
-19,
-96,
-103,
-89,
-90,
-99,
-122,
20,
105,
3,
11,
-106,
29,
126,
20,
22,
120,
-12,
69,
29,
32,
65,
-97,
-10,
-111,
-33,
120,
28,
43,
-1,
43,
38,
117,
-51,
-30,
92,
-57,
122,
-101,
-114,
-77
] |
Wood, J.,
(after stating the facts). The question is, Was appellee liable to appellant for the expense of installing a new crossing for appellee’s railroad over the ditch which appellant was under contract to construct?
Section 28 of the General Drainage Act of 1909, Act 279, under the authority of which the drainage district and appellant entered into the contract for digging the ditch, provides in part as follows:
“Such ditches shall also be carried under or through any railroad track or tramway, and the owner thereof shall have no claim for damages on that account, but shall bridge such ditch at its own expense.”
The term “bridge,” as used in the clause of the act quoted, means “build a crossing over.” Under the express terms of the act, therefore, the appellee had to build the crossing over the ditch “at its own expense.”
The question is not presented here as to whether or not the drainage district or appellants could acquire the right-of-way for the ditch'under appellee’s railroad without compensation for such right-of-way, and we do not decide that question.
As already stated, the only question presented by this record is whether or not appellee is liable for the expense of installing the new crossing that became necessary in constructing the ditch under its track.
The allegations of the complaint and the contract set forth therein, upon which appellants base their cause of action, show clearly that the question as to whether or not appellee is entitled to compensation for the right-of-way of the ditch under its track or roadbed is not involved.
Section 6681 of Kirby’s Digest provides that where any public road or highway shall cross any railroad, such railroad shall construct the crossing. And Judge Rid-dick, speaking for the court in construing this statute in Southwestern Railway Company v. Royall, 75 Ark. 532, said:
“We think it may well be inferred from the language of this statute that no compensation was intended to be paid the company, either for constructing the crossing or for keeping it in repair.
“When a highway is established across a railroad track in this State, it becomes its duty under this statute to construct the crossings and keep them in repair. This is a police regulation, and similar provisions are found in the statutes of other States. As nothing is said in the act about compensating the company for this burden, which the law places upon it, we think none can be implied. It seems plain to us that none was intended, for it is not usual to allow compensation for the expense of obeying a police regulation. * * *
“For this reason we are of the opinion that the circuit court correctly held that the company was entitled to no compensation for constructing the crossing and keeping it in repair.” See also Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U. S. 226; Chicago, Burlington & Quincy Railway Co. v. Drainage Commissioners, 200 U. S. 562.
In the recent case of Chicago, Milwaukee & St. Paul Railway Co. v. City of Minneapolis, it is held:
“The expense of constructing and maintaining the necessary railway bridge over the gap in a railway right-of-way, made by the municipal construction across it of a canal or waterway, with footpaths on each side connecting two lakes, used for public recreation, may be cast upon the railroad company, without denying it the due process of law guaranteed by the Federal Constitution.” See 232 U. S. 430.
The statute in regard to railway companies being required to construct crossings over roads or highways, construed in Railway v. Royall, supra, is precisely similar to the clause of the act under consideration. The principles announced in the above case are controlling here, and it follows that, under the law and the contract be? tween the appellants and appellee, as set up in the complaint, the appellee is liable to appellants in the sum of $150. Under the contract, the payment of this sum by the appellants was not voluntary, and appellants are, therefore, entitled to have judgment for the same against appellee.
The court, therefore, erred in sustaining appellee’s demurrer to appellants’ complaint and dismissing the same.
The judgment is therefore reversed, and judgment will he entered here in favor of the appellants against appellee for the sum of $150. | [
-48,
106,
-44,
-19,
-21,
-20,
50,
-120,
89,
-93,
101,
91,
-49,
75,
-112,
101,
-25,
-3,
-15,
59,
119,
-29,
3,
98,
-45,
-77,
-13,
79,
-77,
73,
68,
-41,
76,
48,
-114,
21,
103,
74,
85,
-40,
-114,
-122,
-118,
97,
-7,
64,
36,
123,
6,
77,
49,
-34,
-5,
34,
16,
-9,
44,
46,
127,
-83,
-112,
112,
-102,
5,
122,
5,
33,
39,
-104,
33,
-24,
56,
-112,
-75,
1,
-72,
123,
-92,
-41,
-9,
73,
-103,
-119,
98,
102,
32,
101,
-17,
-100,
-103,
14,
-38,
-115,
-89,
0,
24,
67,
41,
-83,
-99,
92,
68,
-89,
126,
-20,
-59,
95,
-24,
-127,
-117,
-12,
-32,
-3,
-28,
-104,
7,
-49,
35,
50,
100,
-62,
-78,
93,
109,
114,
27,
-97,
-52
] |
Hart, J.,
(after stating the facts). The principal question raised by the appeal is whether the court erred in rejecting certain testimony of one Whitworth, who was appellant's station agent and telegraph operator at Fulton on January 27, 1912, the day Gibson was killed.
The railroad was operated by what was called the “block system.” Whitworth testified that he kept a record of the movements of the trains on the block south of Fulton and the one north of it; that the block south of Fulton was from Clear Lake Junction to Fulton, and that the block north of Fulton was from Fulton to Hope; that Ms records show that the train which Mlled decedent entered the block south of Fulton at 5:03 p. m. on January 27, 1912; that it passed Fulton at 5:17 p. m. ; that it cleared the block at Hope at 5:50 p. m., and that this information was given Mm by the operator at Hope; that when a train passed Fulton going northward, no other train would be permitted to enter that block until after it had been reported to Mm that the first train had cleared the block; that these records were kept by him to show the movements of the train in order that a train might not enter one block until the train ahead of it had passed out of that block.
Counsel for appellee objected to the testimony of this witness to the effect that the train cleared the block at Hope at 5:50 p. m., and the court sustained the objection of counsel thereto. Counsel for appellant contend that the testimony was competent and material because it tended to show when the accident occurred. Other testimony introduced by appellant tended to show that Hope was thirteen and one-half miles north of Fulton, and that the train ran from Fulton to Hope at the rate of about thirty-eight or forty miles an hour.
To sustain their contention, counsel for appellant rely on the cases of Donovan v. Boston & Maine Rd. Co., 158 Mass. 450, 33 N. E. 583, and Louisville & Nashville Ry. Co. v. Daniel, 122 Ky. 269, 3 L. R. A. (N. S.) 1194, and other cases of like character.
In the first mentioned case, plaintiff sued the railroad company for injuries received at a crossing, and his evidence was that he was injured near the station at a designated time by an incoming train, and that his view of the train was obstructed by another train which was delivering passengers at the station. To show that no train was delivering passengers there at that time, defendant introduced in evidence the entries on a telegraphic train report sheet kept in its train dispatcher’s office at that station, showing the time all trains passed the several stations en-route, and the court held that the evidence was competent. The train dispatcher made the record from reports sent him, by the operators at the various stations along the line of railroad, and bis testimony was objected to on the ground that the testimony of the operators who sent in the reports would be the best evidence. The court said that every interest of the railway company demanded that the entries, when made, should be true, and that no reason could be conceived why the defendant should procure or permit a false or incorrect entry of the movement of its trains; that there was no reason why the operators who sent in the information could have any interest to misstate the facts; that the record made by the train dispatcher from the information sent in by the operator was an act rather than a declaration; that the train sheet, with its entries, and the messages from which they were made, were acts -done before any controversy had arisen, when all concerned had no interest except to know and to state the truth.
In the last mentioned case, according to the testimony of the plaintiff, he rode to the station where he was injured on one of defendant’s trains by permission, and . after he had debarked from the train he saw another engine coming down the track, and after it had passed he undertook to cross the track and was hit by a car making, a flying switch. It was the theory of the railway company that the plaintiff was stealing a ride on the train from which he debarked, and that there was no other engine at that station at the time. Defendant offered to prove by its train dispatcher that he kept an accurate record of the movements of all trains on that division of its road, and that this record was made up from his own orders, upon which all trains on that division moved, and from telegraphic reports transmitted to him from the stations along the line as each train arrived and departed. The court said that in the conduct of a modern railroad system it is indispensable that in the movement of trains an exact knowledge should be had at a central point of observation and direction of the location of each train in operation over a given line, or between given terminals, and that this knowledge should accompany each movement of each train until it had arrived at its destination; that in order to avoid collision it was necessary that tiré train dispatcher who directed the movements of the train over his division should maintain, as it were, a bird’s eye view of the whole system under his control; that he could only do this by receiving telegraphic reports from the operators along- the line, and that the conditions under which these reports were made, and the grave importance of them, are the strongest possible guaranty to their accuracy; that the record was made up of details furnished by persons widely apart and all acting under a high incentive for accuracy; that under these circumstances no motive exists for the various operators to knowingly make a false report, and that the reports are made under such circumstances that the person making them has no interest or incentive whatever to fabricate them.
We do not think the rules announced in the two cases just referred to are applicable to the facts of the present case. Always the object and purpose of legal investigation is to-ascertain the truth, and in doing this the best evidence attainable should be offered. The general rule is that witnesses, in testifying, must be confined to that which is within their personal knowledge, and that which is but hearsay must be excluded. 1 Greenleaf on Evidence (16 ed.), § 98; 1 Elliott on Evidence, § § 315-320. These learned authors, as well as the adjudicated cases, recognize certain exceptions to the general rule. One of the grounds is that hearsay evidence is sometimes rendered necessary by the difficulty of obtaining other proof, and owing to the peculiar circumstances under which the declarations were made, there is a guaranty of their reliability because the declarant was disinterested, and there was no motive for him not to speak the truth. Then, too, the declaration must be made before dispute or litigation so that it is made without bias on account of the existence of a dispute or litigation which the declarant might be disposed to favor. Lastly, the declarant must have had peculiar means of knowledge not possessed by others. Sugden et al. v. St. Leonard, 1 Law Rep. (English) Probate Division (1875, 1876), page 154, at 241.
The facts of the present case do not bring the excluded evidence within these exceptions. It will be remembered that the excluded evidence was the report of the time the train left the block at Hope, which had been made by the operator at Hope to the operator at Fulton, and had been made a record by the latter. Thus it will be seen that the declaration of the operator at Hope was the testimony sought to be admitted. According to the testimony of the operator at Fulton, the railroad was operated by the block system; that part of the railway system south of Fulton to Clear Lake Junction constituted one block, and the agent at Fulton was required to keep a record of the time the train entered, and left the block. Again, from Fulton to Hope was another block, and he was required to keep a record of the arrival and departure of the trains on that block. The time the train left the block at Hope was given him by the operator there. In the operation of the system the agent at Fulton, after the train going north had passed there, would not permit another train to pass Fulton until he had been informed by the agent at Hope that the northbound train had left the block there. It was just as necessary for the operator at Hope to keep a record of the arrival and departure of the trains from his block as it was for the operator at Fulton to keep such a record. The record kept by the operator at Hope was just as accessible and just as easy to obtain as that kept by the operator at Fulton. Hope was situated in the county where the ease was tried, and no reason is shown why the operator at Hope was not examined and used as a witness to prove the time the train in question left the block at Hope going north. He could have testified of his own personal knowledge as to that fact, and could have used the record kept by him to have refreshed his memory in the event it was necessary to do so. The declaration made by him to the operator at Fulton as to the time the train in question left the block at Hope was made after Gibson had been killed, and so was made at a time when there might have been occasion for bim to have made a false declaration. He knew that Gibson had been killed and knew that litigation might arise with the railroad company on account of his death. Then it can not be said that his declaration to the operator at Fulton was made without bias. Counsel for appellant contend that the testimony excluded was a material part of his case, and it may be said that the operator at Hope appreciated this fact. In any event, it does not appear from the record that he did not realize the importance of his declaration, and did not know that it would be favorable to the railroad company in any subsequent litigation it might have relative to the death of Gibson. As we have already seen, no reason is shown why the operator at Hope was not introduced as a witness, and, under the circumstances and for the reasons given, we are of the opinion that the court properly excluded the evidence as being hearsay.
Counsel for appellant also assign as error the action of the court in giving instruction No. 4, which is as follows :
“You are instructed that it is the duty of all persons running trains in this State upon any railroad to keep a constant lookout for a person or property upon the track of any and all railroads; and if any person or property shall be killed or injured by the negligence of any employee of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable ¡and responsible to the person injured for all damages resulting from the neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care after the discovery of such peril, and the burden of the proof shall devolve upon such railroad to establish the fact that -this duty to keep such lookout has been performed.”
In the opinion on the former appeal in this case, the court said: “We think the construction there placed upon the act applies to persons alike, and that the railroad company now owes the same duty to keep a lookout to avoid injuring the trespasser upon its tracks, and that, upon proof of injury to such person by the operation of its trains under such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided if a lookout had been kept, a prima facie case is made, and the burden of proof then devolves upon the railroad company to show that a proper lookout was kept as required by the statute, and that it used ordinary care to prevent the injury to the person after his discovery in a perilous position in order to escape liability for such injury.” St. Louis, I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431.
Counsel contend that the instruction given does not conform to the ruling of the court on the former appeal; but we do not agree with them in this contention. The effect of our holding in the former opinion is that where proof has been introduced by the plaintiff of an injury to a person by the operation of a train under such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided if a lookout had been kept, then the burden is shifted to the railway company to show that such lookout was kept. The instruction complained of does not place the burden on the appellant in the whole case. It only places the burden of proof on the appellant to show that the lookout required by the statute was kept.
At the request of the appellant the court gave the following instruction:
“The court instructs the jury that the mere fact that Mr. Gibson was killed by the train does not under the law entitle the plaintiff to recover damages for his death; before the plaintiff can recover, it must be proved to you by the testimony in this case that the railway company’s enginemen were negligent in failing to keep a constant lookout, or in failing to nse reasonable care to keep from striking deceased after they discovered, or conld have by the use of ordinary care, discovered.his peril. And the burden is upon the plaintiff to prove by the testimony, facts sufficient to raise a reasonable inference that the danger might have been discovered and the injury prevented by the trainmen if a lookout had been kept. And, if the plaintiff has proved such facts sufficient to raise such inference, your verdict should still be for the defendant, if you find from a preponderance of the testimony that a constant lookout was kept by the enginemen, and that they used ordinary care to prevent the injury after actually discovering that deceased was in peril. ’ ’
The giving of this instruction shows conclusively that the court did not intend to place the burden upon the defendant in the whole case, but it in express terms told the jury that the mere fact that Mr. Gibson was killed by the train did not entitle appellee to recover damages-for his death, and that before appellee could recover she must make out a prima facie case by the introduction of proof from which the jury might have inferred that the danger to Gibson might have been discovered and his death avoided if the lookout required by the statute had been kept and that when this prima facie case was made by appellee, then the burden devolved upon the defendant to show by a preponderance of the evidence that such lookout was kept.
The testimony on the part of appellee tended to show that Gibson was lying on or near the track at the time he was killed; that the track was. straight for a distance of two miles or more in the direction from which the train was approaching, and that a person could have been discovered lying on the track for a distance of 1,350 feet; that if a proper lookout had been kept, appellant’s servants could have discovered decedent in time to have avoided killing him. While this testimony was contradicted by the witnesses for appellant, who all testified that they were keeping a proper lookout and stopped the train as quickly as they could after discovering that the object lying near the track was a person, still this conflict in the testimony has been settled by the verdict of the jury, which is binding upon us, and we are of the opinion that there was sufficient evidence to warrant the verdict.
Other assignments of error in the giving of instructions are pressed upon us for a reversal of the judgment; but we do not deem it necessary to discuss them separately. It is sufficient to say that the instructions given by the court are in conformity to the rules of law laid down in our opinion on the former appeal in this case; and we find no error in the record. Therefore, the judgment will be affirmed. | [
-15,
122,
-4,
-81,
26,
96,
34,
26,
97,
-15,
-28,
83,
-115,
-57,
25,
55,
-13,
45,
-15,
43,
-12,
-121,
87,
-93,
-110,
115,
123,
-49,
-75,
72,
-12,
-42,
76,
32,
10,
85,
102,
72,
-59,
90,
-116,
20,
-71,
-20,
17,
80,
40,
122,
22,
79,
49,
-34,
-13,
42,
24,
82,
109,
47,
107,
-88,
-48,
113,
-126,
7,
116,
0,
48,
52,
-98,
-125,
88,
24,
-104,
53,
34,
-88,
115,
-92,
-109,
-12,
97,
-39,
12,
-30,
-25,
33,
29,
-17,
-84,
-104,
14,
26,
-113,
-89,
-78,
1,
73,
37,
-106,
-97,
115,
16,
7,
126,
-24,
85,
93,
116,
1,
-49,
-76,
-126,
-33,
36,
-101,
27,
-21,
17,
18,
112,
-36,
-94,
93,
68,
48,
-101,
-49,
-51
] |
Kirby, J.,
(after stating the facts). The court erred in not directing a verdict for appellant. The undisputed testimony shows that appellee executed the note sued on to the bank, that the bank transferred and delivered it to appellant company for value, and it was due and unpaid at the time suit was brought. It is also true that R. A. McEachin, in trying to effect a settlement of his wife’s account with the bank to prevent loss of her deposit, asked Bishop if it would be satisfactory for him (Mc-Eachin) to pay off this note to the bank and let Bishop execute him a new note therefor. That Bishop agreed to this, and McEachin did pay the bank $600 by a check from his wife on her account and took a receipt from the bank, already set out in the statement of facts. He was told at the time that the Bishop note was not in the bank, but was in Fort Smith, and would be gotten and turned over to him.
In Block v. Kirtland, 21 Ark. 393, the court said: “A payment by the maker of a negotiable note to the original payee after the note has been assigned, is not a' good defense to an action by the assignee against the maker under the statute, nor by the Law Merchant. The maker must take care that the person to whom he pays a negotiable note is its holder or in possession of it.” And in State National Bank v. Hyatt, 75 Ark. 174, “Payment to'a bank of the amount due on a note made payable there, when the bank does not have possession of the note or authority to collect it, does not discharge the maker. ”
McEachin, who claims to have paid the note to the bank for the maker, knew at the time that the note was not in the possession of the bank, but that it was at Fort Smith, and the maker of the note was notified by the appellant, the assignee thereof, that it held the note and was the owner, before he paid any money to McEachin on the new note executed to him. Of course, the bank had no authority to collect the note after its delivery to appellant, and could not release any part of the consideration after its assignment. State Nal’t Bank v. Hyatt, supra; Kirby’s Digest, § 521. This was a negotiable note transferred and delivered to the appellant, it is true, after it became due, but this did not prevent it continuing negotiable, and gave the assignee the right to collect it, subject only to defenses existing at the time of the transfer. Appellant can not be deprived of his right to collect the note because appellee saw fit to execute a new note to another person, without first requiring the delivery to him of this one, and thereafter paid one-half the amount of the new note, notwithstanding the notice to him that appellant was the owner of the note sued on. The judgment is reversed, and judgment will be entered here in appellant’s favor for the amount of the note and interest. It is so ordered. | [
-110,
124,
-96,
29,
-118,
32,
42,
-102,
65,
1,
52,
-45,
-23,
-63,
21,
109,
-29,
41,
85,
104,
-25,
-77,
47,
96,
-14,
-78,
-7,
4,
-79,
72,
-76,
-41,
77,
48,
-54,
21,
102,
-62,
-61,
-48,
-114,
-96,
41,
-60,
-7,
-126,
116,
99,
84,
15,
113,
-100,
-14,
47,
61,
66,
-19,
42,
45,
61,
-48,
-7,
-98,
-123,
125,
4,
-111,
37,
-104,
7,
88,
44,
-104,
49,
3,
-8,
112,
-90,
-126,
86,
109,
57,
9,
102,
98,
48,
-44,
-21,
-68,
-103,
39,
-2,
29,
-90,
-112,
72,
43,
45,
-74,
-99,
46,
23,
-122,
-12,
-2,
13,
29,
108,
1,
-114,
-44,
-93,
-81,
60,
26,
15,
-1,
-125,
0,
97,
-49,
-94,
92,
71,
58,
27,
-114,
-111
] |
Hart J.
(after stating the facts). In the case of Williamson v. Grider, 97 Ark. 588, the court said:
“Where a trust is created by a will, a court of equity has jurisdiction to construe the will. The power is incident to the jurisdiction which courts of chancery have over trusts. And this upon the theory that ‘as chancery will compel the performance of trusts, so it will assist trustees and protect them in the due performance'of the trusts, whenever they seek the aid and discretion of the court as to its establishment, management, and execution. ’ ’
So, also, in the ease of Davis v. Whittaker, 38 Ark. 435, the court said:
“Such suits are within the ordinary jurisdiction of courts of quity. They are commonly entertained as the suits of the trustees or executors seeking the aid, advice, and protection of the court in the execution of the trust,” etc.
In regard to the construction of wills, in the case of Parker v. Wilson, 98 Ark. 553, the court said:
“The power of one, legally competent to make a will, to dispose of his property as he sees fit, subject to the restrictions provided by the statutes, is a legal incident to ownership. Ih construing the provisions of a will, the intention of the maker is first to be ascertained, and, when not at variance with recognized rules of law, must govern. The intention of the testator must be gathered from all parts of the will, and such construction be given as best comports with the purposes and objects of the testator, and as will least conflict.” See, also, Gregory v. Welch, 90 Ark. 152.
Tested by these principles, we think the will in question created a trust. The testator was a business man of long experience and knew the extent of his indebtedness and the amount and kind of property held by him. He knew that he had very little cash on hand, and that his estate consisted for the most part of real property, and the balance of personal property of speculative value. After the payment of his debts, he directed that legacies should be paid by his executors to certain of his relatives; that these legacies should be paid in cash, and the amount thereof should be deposited in trust companies to be paid to the legatees in the manner directed by the will. The seventeenth clause of his will provided that his excutors “shall close up the estate committed to their charge as speedily as possible so that the creditors of my estate, if there are any, and my legatees may promptly receive what is due to them.” The testator also recognized that Ms whole estate might be insufficient for the purpose of paying Ms debts and the specific legacies provided in the will; for the last clause of Ms will provides: “Should my estate be insufficient in amount to pay all of the legacies above mentioned after payment of expenses, debts, and executors and costs, the legacies shall be proportionately reduced. ’ ’ TMs brings us to the question of whether the executors were given the power in the will to sell, mortgage or lease the property. It is .well settled that an executor has no power to sell the land of his testator unless directed to do so by the will either expressly or by necessary implication. In tMs case the will does not give the executors express authority to sell the real estate. It is equally well settled that, because the testator has a right to dispose of Ms real estate as he sees fit, if he directs that to be done by Ms executors, which necessarily implies that the estate is fir%t to be sold, a power is given by implication to the executors to make such sale and execute the requisite deeds of conveyance. Going v. Emery, 16 Pick. (Mass.) 107; Lippincott’s Executors v. Lippincott, 19 N. J. Eq. 121. In the latter case the court held:
“The appointment of one as executor of a will that directs lands to be sold, does not, of itself, confer on him the power to sell. But if the executor is directed by the will, or bound by law, to see to the application of the proceeds of the sale, or if the proceeds, in the disposition of them, are mixed up and blended with the personalty— wMch it is the duty of the executor to dispose of and pay over — then a power of sale is conferred on the executor by implication.” See, also, May et al. v. Brewster et al., 73 N. E. (Mass.) 546.
In 2 Perry on Trusts (4 ed.), § 776, the author says:
“No particular form of words is necessary to create a power of sale. Any words which show an intention to create such power, or any form of instrument which imposes duties upon the trustee that he can not perform without a sale, will necessarily create a power of sale in the trustee.”
Tested by these legal principles, we think the will conferred upon the executors the power to sell the lands of the testator. As we have already seen, the bulk of his estate consisted of real property, and several legacies were left which the testator directed to be paid in cash. His directions in this respect could not be complied with unless the executors had the power to sell the real estate left by him. He directed his executors to close up the estate committed to their charge as speedily as possible, so that his creditors might be promptly paid and the legatees promptly receive what is due them.
We now come to the question as to whether a power of sale includes a power to mortgage. There is some conflict in the authorities on this question, but we believe that the better reasoning, if not the weight of authority, is to the effect that a mere power of sale does not include a power to mortgage. Stokes v. Payne, 58 Miss. 614; Bloomer v. Waldron, 3 Hill (N. Y.) 361; Perry v. Laible, 31 N. J. Eq. 566; Willis v. Smith, 66 Tex. 31; Hubbard v. German Congregation, 34 Ia. 34; Cumming v. Williamson, 1 Sanford’s Chancery (N. Y.) 17. This results from the fact that a mortgage is regarded as a security for debt rather than a conditional estate, and hence its execution is regarded as creating an encumbrance rather than as transferring the title. That is to say, a mortgage is treated as a mere security for a debt, and the legal estate can only be used for the purpose of enforcing the payment of the debt secured. The cardinal principle that governs in the construction of powers is to effectuate the intention of the donor; but we can not gather from the terms of the will any intention on the part of the testator looking to a mortgage of his estate. The will does not in express terms authorize the executors either to borrow money or to mortgage the real estate. By the terms of the will, the executors were directed to close up the estate as speedily as possible, and to pay the debts of the testator and the legacies named in the will promptly. The testator anticipated that the whole estate might be neces,sary to pay all the legacies and to pay his debts. There fore, in the last clause of his will he .provided that if his estate was not sufficient to pay all the legacies after the payment of his debts, the legacies should be proportionately reduced. All this precludes the supposition that a mortgage was ever within the intention of the testator. See, Williamson v. Grider, supra. And, as we have already seen, a power of sale does not include the power to mortgage except in those States where a mortgage is characterized as a conditional sale instead of being regarded as a security for a debt.
We do not deem it necessary to decide whether or not the executors have the power to make a lease for a long term of years as it does not seem to us that it will be necessary for the executors to do this. It appears from the allegations of the complaint that before his death,' Stiewel executed a lease for the term of thirty years to the Bankers Trust Company on the property at the corner of Second and Main streets in the city of Little Bock, and, of course, any sale of that property by the executors will be made subject to the rights of the lessee under the lease. It may be said, however, that the will places the control and management of the estate in the hands of the executors, and they will have power to make leases for such length of time as may be necessary until they exercise the authority to sell and dispose of the land. It follows that the decree will be reversed and the cause remanded with directions to the chancellor to enter a decree in accordance with this opinion.
Kirby, J., did not participate. | [
-94,
104,
-36,
60,
10,
96,
-70,
-102,
-15,
-21,
7,
115,
125,
-54,
20,
47,
-10,
-17,
117,
98,
85,
-46,
7,
97,
-14,
-13,
-38,
-49,
-75,
-51,
118,
-33,
76,
48,
-96,
-35,
103,
-49,
-63,
-104,
14,
72,
10,
99,
-39,
80,
48,
67,
18,
91,
-43,
-98,
-13,
34,
29,
-17,
-24,
46,
123,
-68,
116,
-112,
-114,
-123,
127,
5,
-111,
39,
-68,
107,
104,
40,
-120,
49,
-119,
-88,
123,
-74,
70,
-16,
73,
31,
41,
98,
98,
-112,
109,
-27,
-104,
-120,
31,
-90,
-113,
-89,
18,
89,
-86,
43,
-74,
-98,
122,
20,
70,
-12,
-26,
-43,
-42,
108,
5,
-113,
-42,
-93,
-119,
60,
-102,
11,
-49,
67,
33,
80,
-34,
-86,
95,
99,
93,
19,
-116,
-85
] |
Hart, J.,
(after stating the facts). Counsel for appellant seeks to reverse the judgment on the ground that the court erred in directing a verdict in favor of defendant ; and in this connection we think he is correct. At the time the plaintiff purchased the ear of corn involved in this suit, he had no opportunity to inspect the same, and there was an implied warranty on the part of the seller that the corn was reasonably fit for use. Truschel v. Dean, 77 Ark. 546; Bunch v. Weil, 72 Ark. 343. According to the testimony of the plaintiff, the corn had sprouted and was rotten and unfit for use. - The plaintiff paid for the corn and received it. Where the goods delivered to the buyer are inferior in quality to that which was warranted by the vendor, .and the buyer accep'ts the goods and pays the purchase price thereof, he may bring an action for breach of warranty. Benjamin on Sales, (7 ed.), § 893; Mechem on Sales, Vol. 2, § § 1807-1809-1810; Yellow Jacket Mining Company v. Tegarden, 1Q4 Ark. 573; Warden v. Middleton, 110 Ark. 215, 161 S. W. (Ark.) 151. It is' true the defendants adduced evidence tending to show that they offered to take back the car of corn and to pay back to the plaintiff the amount he had paid for the same. This offer, however, was not made until February 11,1913: The present suit was instituted on February 6, 1913. Thus, it will be seen that plaintiff instituted the action before the tender was made to him. He exercised his option to receive the goods and pay for them and sue the defendant for a breach of warranty. After he had done this the defendants could not defeat his right of recovery by offering to receive back the goods and return him the purchase money.
For the benefit of the parties on a retrial of the ease, we will determine the question of the measure of dam ages. .Mr. Mechera says: “Where the article furnished •by the seller is not snch in kind, quality or condition as it was expressly or impliedly warranted to be, the direct and natural loss to the buyer who keeps it is obviously the difference between the value of an article of the kind he was thus entitled to receive and the value of the article which he has in fact received. For this loss he is entitled to compensation. There may, of course, be other losses resulting from the seller’s default, and these will be considered later; but the direct and immediate loss will be at least this difference in value. For the breach of warranty, then, as to kind, quality or condition, the measure of the buyer’s injury will be the difference between the value of an article of the kind warranted and the value of the kind actually delivered; and for this difference the buyer may recover damages.” Mechem on Sales, Vol. 2, § 1817.
For the error in directing a verdict in favor of the defendant, the judgment will be reversed and the cause remanded for a new trial. | [
-78,
-24,
92,
-115,
10,
96,
42,
-38,
68,
-22,
39,
-45,
-23,
-58,
16,
47,
-10,
125,
116,
106,
84,
-93,
23,
-125,
86,
-109,
-40,
-47,
-71,
110,
-27,
92,
12,
32,
-62,
-99,
34,
-64,
-127,
92,
-118,
-124,
27,
108,
-3,
70,
52,
58,
20,
75,
97,
-106,
99,
46,
25,
67,
105,
40,
-85,
57,
-31,
-8,
-94,
13,
125,
6,
-127,
38,
-100,
39,
-40,
78,
-112,
49,
9,
-24,
122,
-74,
-122,
84,
11,
-119,
8,
98,
103,
-128,
69,
101,
-102,
-72,
47,
-35,
15,
-90,
-47,
72,
11,
99,
-66,
-98,
34,
6,
31,
-8,
-7,
93,
31,
-20,
3,
-54,
-108,
-109,
-81,
102,
-118,
11,
-17,
-73,
54,
113,
-51,
-86,
93,
69,
54,
-101,
-114,
-105
] |
ANood, J.,
(after stating the facts). After setting aside the verdict, which was in favor of the appellant (plaintiff below), the court erred in entering judgment, notwithstanding the verdict, in favor of the appellee. There is nothing on the face of the pleadings to warrant the court in rendering a judgment in appellee’s favor.
The appellant, who was the plaintiff below, claimed the property by an alleged sale and transfer of the same to it by Lyman, which it set up in its complaint, and in its reply denied the allegations of the appellee’s answer which challenged the appellant’s alleged right and title to the property. It could not be said, therefore, that the appellee was entitled to have judgment entered in his favor under section 6244 of Kirby’s Digest, which provides that, “AWiere, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so entered by the court, though a verdict has been found against such party.”
The ruling of the trial court, however, in .not entering a judgment in accordance with the verdict and in setting aside the verdict, was tantamount to reserving the cause for future consideration under the provision of section 6242 of Kirby’s Digest. We need not determine whether the court, under the latter section, would be authorized to enter a judgment non obstante veredicto, for if there could be any warrant for such a judgment, not based solely upon matters appearing in the pleadings or as disclosed by the record proper, the testimony justifying such verdict would have to be undisputed so that the court might declare as matter of law that the party in whose favor the judgment was entered was entitled to it, notwithstanding the verdict in favor of the other party.
Therefore, without deciding whether a judgment non obstante veredicto could be entered upon undisputed evidence, it suffices to say that the evidence developed at the trial in this cause is not uncontradicted and did not justify the court in declaring as a matter of law that the appellee was entitled to recover. Without entering into detail in discussing the evidence, we are of the opinion that it was a question for the jury to determine as to whether or not Lyman was insolvent at the time of the alleged transfer of the goods in controversy to appellant, and as to whether or not appellant knew or had notice of such facts as to put it upon inquiry which would have discovered the insolvency of Lyman, if he was insolvent. The court, having set aside the verdict, instead of entering judgment for the appellee, should have sent the cause to the jury to again pass upon the issues of fact involved, that is, as to whether or not there had been a completed sale of the property between.Lyman and appellant by any agreement to that effect and a delivery of the goods in controversy, and as to whether or not Lyman was insolvent, and whether 'appellant knew,' or had notice of such facts as to make it chargeable with knowledge, of Lyman’s insolvency, if he was insolvent.
In view of another trial it is proper to say that the instruction in regard to the delivery was erroneous. The court should not have assumed that the facts recited in the instruction on the question of delivery constituted a delivery, but should have told the jury to consider these facts in determining whether or not there was a delivery of the property. As to whether or not there had been a contract of sale and a delivery so as to render the sale complete was a question of intention between appellant and Lyman and the jury should have been directed to determine from the evidence as to whether or not it was the intention of the parties to make the sale and whether or not they did complete it by a delivery of the goods in controversy. Elgin v. Barker, 106 Ark. 482.
For the error in entering a judgment in favor of the appellee the judgment is reversed and the cause remanded for a new trial. | [
-80,
-4,
-12,
29,
-37,
96,
42,
-102,
65,
-121,
39,
83,
-21,
-62,
16,
125,
-10,
109,
116,
122,
-50,
-93,
7,
67,
-46,
-73,
-16,
85,
-79,
-24,
-18,
-44,
76,
-80,
98,
21,
102,
-118,
-59,
80,
-114,
-92,
24,
65,
-7,
64,
48,
51,
80,
15,
-95,
-98,
-13,
42,
31,
79,
104,
45,
107,
125,
65,
-8,
-65,
5,
95,
20,
-77,
39,
-100,
38,
-56,
42,
-128,
25,
1,
-23,
115,
52,
-126,
-12,
75,
-103,
40,
102,
102,
1,
77,
101,
-68,
-120,
47,
126,
13,
-90,
17,
72,
-55,
97,
-106,
-99,
124,
48,
36,
106,
-20,
-99,
25,
100,
27,
-118,
-42,
-75,
-97,
116,
-68,
75,
-49,
-125,
16,
48,
-51,
-96,
92,
65,
92,
-101,
-114,
-106
] |
Wood, J.,
(after stating the facts). The proceeding in tke ckancery court to sell tke lands for tke delinquent assessments under tke provisions of tke amendatory act of May 24, 1909, was made “a proceeding m rem.”
In order to give tke ckancery court jurisdiction over tke particular tract of land in controversy, it was essential that tke board file a complaint in which tke lands were described witk sufficient certainty to enable tke clerk to give tke notice in tke form prescribed by tke statute, describing tke lands witk suck accuracy that tke alleged owners and all other persons claiming any interest whatever in tke lands would be advised, by reading* tke notice and referring to tke complaint, of what particular lands were involved in tke proceeding for tke sale of tke same.
In Crittenden Lumber Company v. McDougal, 101 Ark. 390, an attack was made by tke lumber company upon tke validity of tke commissioner’s deed, made in pursuance of a sale by order of tke ckancery court on lands that were sold for levee taxes under tke authority and in pursuance of tke .act creating the levee district. In that case we said: ‘ ‘ This is a collateral attack upon a domestic judgment of a court of general jurisdiction. It is 'well settled that every presumption will be indulged in favor of the jurisdiction of such court, and the validity of the judgment which it enters. Unless it affirmatively appears from the record itself that-the facts essential -to the jurisdiction of such court did not exist, such collateral .attack against the judgment rendered by it will not prevail. It is true that, a judgment may be attacked collaterally, where, by the record, it is shown that there was want of jurisdiction in the court rendering it, either of the subject-matter or of the person of the defendant.”
As this was a proceeding in rem, the filing of the complaint correctly describing the lands, was necessary in order to give the court jurisdiction of the subject-matter. See McCarter v. Neil, 50 Ark. 188-191. Therefore, unless the land was correctly described so as to enable the clerk to give notice of the particular tract involved the record itself would show that the court had no jurisdiction, and this would render the decree void even on collateral attack, as this is.
A complaint correctly describing the lands, under the act, is the primal step in the proceeding. It is the basis upon which the clerk must act in giving the notice provided for. No presumptions can be indulged in favor of a decree grounded upon a complaint that does not contain a correct description of the particular tracts of land ordered.to be sold. The notice must be given by the clerk of the lands described in the complaint. Unless the lands are correctly described, the notice will necessarily be insufficient. Neither the complaint nor the notice are susceptible of amendment, and therefore no presumptions can be indulged contrary to what they show on their face. They are preliminary and prerequisite to a seizure and control by the court of the land sought to be condemned for the delinquent taxes.
But the description of the land in the complaint here was sufficient to give the court jurisdiction over the particular tract of land, which was correctly described by the clerk in the notice he gave under the statutes, and which is correctly described in the decree under which the land was sold.
All the lands in Crittenden County are in townships north of the base line and east of the. fifth principal meridian. Of this the court will take judicial cognizance. It was therefore not necessary to put the word north after the figure designating the township, nor the word east after the figure designating the range. Under our revenue system lands are listed so that opposite each name follows in order, the description, of each tract by section, or the largest subdivision of which the same is capable, designating the number of the section and part thereof, the congressional township or survey, and the value of each tract.
The law prescribes the form in which lands shall be listed on the return of the assessor, as follows: In making such return each separate tract of land in each congressional township shall be placed in the numerical order of the section * * * which returns shall be as near the following form as practicable:
Name of Part of Owners Section Section Township Range No.of acres Value
(Kirby’s Digest, % 6976).
This order of the listing of the lands follows the description of the Government survéy as to the numbers designating respectively the section, township and range.
In the act creating the St. Francis Levee District it is provided: “The said lands shall be entered (for assessment) upon such books in convenient subdivisions as to survey by the United States Government. ’ ’ The court will take judicial notice of the fact that lands are described under the United States Government survey by designating first the section, then the township, and then the range, in the order named. When these provisions of our revenue law and-the act creating the St. Francis Levee District, in regard to the manner in which lands are to be listed and described, are taken into consideration, there can be no room for uncertainty or mistake in the description of the lands contained in the complaint filed by the board of directors of the St. Francis Levee District. The letter and figures, “west half 6-3-7” under the word ‘ ‘ description, ’ ’ as used could only mean the west half of section 6, township 3, range 7; and since all the lands in Crittenden County are in townships north and ranges east, necessarily the words north and east must be understood as following the figures designating the numbers of the township and range. This description, “west half 6-3-7,” was correctly interpreted by the clerk as meaning the west half of section 6, township. 3 north, range 7 east, and, accordingly, the notice was published giving the full description of the land, writing out the wokds “section,” “township” and “range,” preceding the numbers. Considering the manner in which lands are described, and the subdivisions thereof under the United States Government survey, and that they are to be listed and described in that order under our revenue system, and the act creating the St. Francis Levee District, we are of the opinion that the description contained in the complaint was susceptible of no other interpretation than that placed upon it by the clerk in the notice, and the court in rendering the decree for the condemnation and sale of the land.
■ In Cooper v. Lee, 59 Ark. 460, we said: “A description of the land sufficient to identify it and- notify the owner is essential to a valid sale in a proceeding to sell land for nonpayment -of taxes.” And, further, “A description of the land by the abbreviations commonly used to designate Government subdivisions sufficiently identifies it; but the use of abbreviations in a tax assessment or notice must be confined to those commonly, used and understood” (pp. 462, 463).
The land was described in the complaint in the chancery proceeding so that -any one having -sufficient education to read, and enough intelligence to comprehend the usual and ordinary terms in which descriptions of land are couched, could readily understand what lands were involved. No land owner nor any one interested in these lands, if they exercised any sort of diligence, could have been mistaken as to the description of these lands. The' complaint and the publication by the clerk gave .notice to the world that the lands, among others, sought to be condemned and sold for delinquent levee assessments were the west half of section 6, in township 3 north, range 7 east, in Crittenden County. The chancery court therefore had jurisdiction and its decree, under which appellants claimed,' is invulnerable to the collateral attack made upon it by the appellee.
The appellee contends that the chancery sale was void because the complaint specified that the amount of taxes was $35.20, and that the amount of the penalty and interest was not mentioned; that the warning order' contained the same sum, but that a decree was rendered for the sum of $46.88, which rendered same'' void.
An examination of the complaint that was filed in the chancery proceeding to condemn for delinquent taxes shows that the board of directors asked that a lien be declared and the lands sold for the amount of the taxes and penalty, together with interest and costs due on each tract of land respectively. The notice published by the clerk informed the owners and all others interested that they were required by law “to appear and make defense to said suit or the same will be taken for confessed, and final judgment will be entered directing the sale of said land for the purpose of collecting said delinquent levee taxes, together with payment of interest, penalty and costs which will accrue as allowed by law- ’ ’
The decree recites that the total tax, penalty and costs allowed by law and adjudged against the tract of land in controversy was $46.88. It also shows that the cause was heard upon the complaint and exhibits, proof of publication, and oral evidence taken at the bar of the court. These recitals of the record are sufficient to justify the decree for the amount named therein. There is no showing that the decree was entered for an excessive amount of taxes, penalty and costs. It will be presumed that the chancery court ascertained the correct amount, and that the decree reflects that sum.
The decree of the chancery court, therefore, in the suit at bar, setting aside the sale of the lands and cancelling the deeds under which appellants claim title, was erroneous, and it is therefore reversed and the.cause will be remanded with directions to dismiss appellee’s complaint for want of equity.
Hart, J., dissents. | [
-10,
-20,
-99,
-115,
-117,
-32,
56,
-72,
72,
-77,
39,
115,
-17,
-85,
0,
47,
-25,
13,
117,
106,
100,
-78,
122,
67,
-14,
-109,
-45,
87,
-74,
77,
118,
-41,
76,
-80,
74,
-11,
-58,
34,
-59,
-100,
78,
11,
-120,
103,
-21,
64,
56,
99,
26,
79,
113,
47,
-21,
40,
21,
-61,
73,
44,
-51,
-84,
-47,
-80,
-70,
29,
123,
6,
1,
-25,
-104,
3,
72,
-118,
-112,
49,
3,
-24,
123,
54,
-121,
116,
13,
-103,
8,
102,
99,
48,
100,
-17,
56,
-119,
46,
-10,
29,
-89,
2,
56,
67,
32,
-90,
-99,
116,
0,
71,
126,
-26,
5,
30,
108,
-121,
-26,
-42,
-73,
-113,
-44,
-120,
3,
-61,
-125,
48,
112,
-51,
-82,
92,
70,
48,
27,
-116,
-8
] |
Smith, J.,
(after stating the facts). A number of exceptions were saved at the trial both to the admission of evidence and the giving of instructions, and these exceptions have been considered by us; but we do not find any prejudicial error, or question of sufficient importance to require discussion. It is also earnestly insisted that the evidence is insufficient to support the verdict, but when appellee’s evidence is given its highest probative value, as we must give it, when testing its legal sufficiency to support the verdict, we can not say that the evidence is legally insufficient to sustain the verdict, nor can we say the amount recovered is excessive.
A question, is raised, however, which is one of first impression in this State, and which has received our earnest consideration. This question is the right of the wife to maintain an action for damages for the alienation of the affections of her husband.
There is conflict among the authorities as to whether this right of action existed in favor of the wife, or not, at common law, and although there are numerous cases which hold that she had no such right, the better view appears to be that she did. Copimon law causes of action for a, personal injury to a married Woman belonged to her; but fhe husband was required to sue with her to recover compensation because of her disability to sue. The husband’s right of action abated at the death of the wife; but the-cause of action survived to the wife and could be maintained by her after the death of her husband. Her right of action existed, but could not be set in motion unless her husband joined, and, by reason of the disability of coverture, it remained in abeyance, and could not be prosecuted in her own name. Bennett v. Bennett, 116 N. Y. 584; Smith v. Smith, 38 S. W. 439.
The case of Bennett v. Bennett, supra, is a leading authority on this subject, and the opinion in that case reviewed the authorities upon this question, and in upholding a judgment in favor of the wife, it was there said: “We think the judgment appealed from should be affirmed, upon the ground that the common law gave the plaintiff a right of action, and that the Code gave her an appropriate remedy. ’ ’
In 1 Cooley on Torts (3 ed., p. 475), it was said: “At least twenty States now hold that such an action may be maintained, some basing their conclusion upon common law principles and some, more or less, upon the various enabling statutes in favor of maried women, which have been passed in recent years.”
A number of cases support the wife’s right to re- ' cover for the alienation of the affection of her husband, as an invasion of her personal rights, whife other cases regard the wife’s right to the consortium of her husband •as a property right. One of the leading cases taking this latter view is that of Jaynes v. Jaynes, 39 Hun. 40, in which case it is there said: “These reciprocal rights may be regarded as the property of the respective parties, in the broad sense of the word property, which includes things not tangible or visible, and applies to whatever is exclusively one’s own. ’ ’ And it is there further said: “But as at common law, the husband and wife were regarded as one person, and her personal rights were suspended or incorporated with his, during coverture, so that if she were injured in her person or property, she could bring no action for redress, without her husband’s concurrence, and in his name as well as her own, she was practically precluded from suing for damages caused by alienating the affections of her husband and enticing him away. * * * Her disability in that respect, we think, has been removed in this State by legislation. A married woman may now, while married, sue and be sued in all matters having relation to her sole and separate property or for any injury to her person or character the same as if she were sole, and it is not necessary or proper to join her husband with her as a party in any action or special proceedings affecting her separate property. If we are correct in holding that the right which the plaintiff alleges was invaded by the defendant in this action was her separate property, the ease is within the statutes referred to. If it be not property in the sense in which the word property is used in the statutes cited, it is a personal right, and, as the statutes extend to all injuries, whether to property, person or character, it seems sufficiently comprehensive to embrace an injury to the right in question.”
In the ease of Warren v. Warren, 89 Mich. 123, the wife’s right to sue and recover damag-es for the alienation of the affections of her husband was said to exist under the statute which was set out in the opinion. It was there said: “Under the statutes of this State relative to the rights of married women, and the decisions of our own courts in relation thereto, the right of the wife to bring this action, as well as all other suits to redress her personal wrongs, seems to me to be perfectly clear. The statutes provide: ‘That the real and personal estate of every female, acquired before marriage, and all property, real and personal, to which she may afterward become entitled, by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, and engagements of her husband, and may be contracted, sold, transferred, mortgaged, conveyed, devised, or bequeathed by her, in the same manner and with the like effect as if she were unmarried.’ How. Stat., p. 6295.
“ ‘Actions may be bronght by and against a married woman in relation to her sole property, in the same manner as if she were unmarried; and in cases where the property of the husband can not be sold, mortgaged, or otherwise incumbered without the consent of his wife, to be given in the manner prescribed by law, or when his property is exempted by law from sale on execution or other final process issued from any court against him, his wife may bring an action in her own name, with the like effect as in cases of actions in relation to her sole property as aforesaid.’ How. Stat. 6297.
“Under these statutes it has been held that a wife is entitled to and may sue for and recover in her own name damages for her personal injuries and suffering from assault and battery (Berger v. Jacobs, 21 Mich. 215; Hyatt v. Adams, 16 Id. 180-198), and for injuries to her person through the negligence of another (Mich. Cent. Rd. Co. v. Coleman, 28 Mich. 440); also for slander (Leonard v. Pope, 27 Mich. 145). If the damages in such cases are her individual property, as expressly held in Berger v. Jacobs, I can not see why, in reason and on principle, the damages arising from the loss of the society and support of her husband are not also her individual property. Surely, the support and maintenance which she is entitled to from her husband, and which she loses by his abandonment, is capable of ready and accu rate measurement in dollars and cents, and can be said to be a property right, which she has lost by the wrongful interference of the defendants. The loss of the society of her husband, and her mental anguish and suffering, .are not easily ascertained when compensation is sought, and to be gauged by a money standard; but damages for such anguish and suffering are given, as best the jury can, and are permissible, in most actions of tort. * * *
“There has never been .any reason urged against the right of the husband to sue for the loss of the consortium of his wife, and if, as shown, the wife is now, under either the liberal letter or spirit of our marriage laws, entitled, as of her own property, to the damages arising from her personal injuries — the injuries of her body or mind — there can be no good reason why she can not sue for and recover damages for the loss of the consortium of her husband that does not equally and as well apply to the suit of the husband on account of the loss of her society. The wife is entitled to the society, protection and support of her husband as certainly, under the law, and by moral right, as he is to her society and services in his household. * # *
“It is an old maxim, and -a good one, that the law will never ‘suffer an injury and a damage without redress.’ Will the law aid the husband, and not help the wife in a like case? Not under the present enlightened views of the marriage relation and its reciprocal rights and duties. The reasoning that deprives the wife of redress when her husband is taken away from her by the blandishments and unlawful influences of others is a relic of the barbarity of the common law, which, in effect, made the wife the mere servant of her husband, and deprived her of all right to redress her personal wrongs except by his will.”
In the case of Bennett v. Bennett, supra, the court discussed the nature of this action and treated it as of the nature of a personal injury to the wife, and it was there said: “An injury to the person within the meaD ing of the law includes certain acts which do not involve physical or personal injury. Thus, criminal conversation with the wife has long been held as personal injury to the husband, and the seduction of a daughter a like injury to the father.” And it was there further said: “The basis of the action is the loss of consortium, or the right of the husband to the conjugal society of his wife. It is not necessary that there shall be proof of any pecuniary loss in order to sustain the action. Hermance v. James, 32 How. P., p. 143; Rinehart v. Bills, 82 Mo. 534. Loss of service is not essential but is merely a matter of aggravation and need not be alleged or proven. Bigaouette v. Paulet, 134 Mass. 125.” Cooley says that the gist of the action is the loss of consortium, which in-includes the husband’s society, affections and aid. 1 Cooley on Torts, p. 478.
In the case of Anna Nolin v. Marion Pearson (Mass.), 4 L. R. A. (N. S.) 643, which was a suit by the wife for the alienation of the affections of her husband, the right of the wife to maintain the suit was upheld and many cases are cited in the opinion of the court and in the briefs of counsel; other eases are collected in the foot note, and after a review of the American cases, the following statement is made by the editor of the foot note: “In the United States, Wisconsin, Maine and New Jersey seem to-stand alone in denying to the wife-the right to sue for the alienation of her husuband’s affections and enticing him away from her, thus depriving her of his support, under statutes giving her the right to sue ¡and be sued in her own name. ” But'New Jersey can no longer be classed among the States which deny the right of the wife to maintain this cause of action.
In the case of Sims v. Sims, 29 L. R. A. (N. S.) 842, 76 Atl. 1063, an appeal was taken from the order of the trial court sustaining a demurrer which was interposed upon the general ground that a suit would not lie, which was instituted to recover damages for'maliciously enticing away the plaintiff’s husband and thereby alienating Lis affections. The opinion in that casé recited that plaintiff based her right to sue upon an act entitled “An Act for the Protection and Enforcement of the Eights of Married Women.” This act provided that any married woman may maintain an action in her own name and without joining her husband therein, for all torts committed against her or her separate property, in the same manner as she lawfully might if a feme sole; provided, however, that this act shall not be so construed as to interfere with or take away any right of action at law or in equity now provided for the torts above mentioned. The second section provided that “Any action brought in accordance with the provisions of this act may be prosecuted by such married woman separately in her own name, and the nonjoinder of her husband shall not be pleaded in any such action.” The Court of Appeals of New Jersey reversed the action of the trial court in sustaining the demurrer, and in doing so used the following language in construing the act above quoted: “The question, therefore, presented in this case, in the light of the act of 1906, is res nova, and the conclusion we have reached is supported by the great weight of authority. That this act was intended to confer the power upon a married woman to protect and enforce her rights is the specific announcement contained in its title. The body of the act declares that she may maintain an action, as a feme sole might lawfully do, and without joining her husband therein, for all torts committed against her or her property. Keeping in mind the old law and the existing mischief, it becomes manifest that the legislative intent which inspired this remedial measure could have been only a desire to confer upon the married woman that equality of remedy as an independent suitor, which would enable her to vindicate her right in person for a tort. committed against her, and thus remedy the inequality to which she was subjected by the-common law.”
It will be seen that our statute giving married women the right to sue, which will later be set out, is broader and more comprehensive than the New Jersey statute, which the Court of Appeals of that State said was sufficient to authorize the maintenance of a suit by the wife such as we have here.
In the case of Gernerd v. Gernerd, 185 Pa. 236, involving the question here under consideration, the Supreme Court of that State said: “When the wife has been freed from her common law disabilities and may sue in her own name and right for torts done her, we see no reason to doubt her right to maintain an action against one who has wrongfully induced her husband to leave her. Generally, this right has been recognized and sustained in jurisdictions where she has the capacity to sue.” One of the earliest American cases holding the wife has the right to sue for the loss of consortium of her husband, is the case of Westlake v. Westlake, 34 Ohio Stat. 627-633, and this has become one of the leading cases, and is cited in many of the subsequent cases on this subject. It was there said: “If, in this State, the common law dominion of the husband over the property and personal rights of the wife has been> taken away from him and conferred upon her, and remedies in accordance with the spirit of the civil law have been expressly given to the wife for the redress of injuries to her person, property, and personal rights, all of which I hope to show has been done, then it must follow that she may maintain an action in her own name for the loss of the consortium of her husband against one who wrongfully deprives her of it, unless the consortium of her husband is not one of her personal rights. * * *
“Is the right of the wife to the consortium of the husband one of her personal rights? If it is, then the statute makes the right of action growing out of an injury to the right, the separate property of the wife, for which the Code gives her a right to sue in her own name. Before marriage the man and woman are endowed with the same personal rights. If under no disability, each is competent to contract. When the agreement to marry is entered into, but, before its consummation, each has the same interest in it, and either may sue for a breach of it by tbe other. In this State, neither the husband nor wife unconditionally surrenders their personal rights by consummating the contract of marriage. On the contrary, each acquires a personal as well as legal right to the conjugal society of the other, for the loss of which either may sue separately.”
In the third edition of Cooley on Torts, volume 1, page 477, the case of Foot v. Card, 58 Conn. 1, is quoted from at length with approval, and we find there the following quotation from that case: “Whatever inequalities of right as to property may result from the marriage contract, husband and wife are equal in rights in one respect, namely, each owes to the other the fullest possible measure of conjugal affection and society; the husband to the wife all that the wife owes to him. Upon principle this right in the wife is equally valuable to her as property, as is that of the husband to him. Her right being the same as his in kind, degree and value, there would seem to be no valid reason why the law should deny to her the redress which it affords to him. But from time to time courts, not denying the right of the wife in this regard, not denying that it could be injured, have nevertheless declared that the law neither would nor could devise and enforce any form of action by which she might obtain damages. In 3 Blackstone’s Commentaries, 143, the reason for such denial is thus stated: ‘The inferior hath no kind of property in the company, care or assistance of the superior, as the superior is held to have in those of the inferior; therefore, the inferior can suffer no loss or injury.’ Inasmuch as by universal consent it is of the essence of every marriage contract that the parties thereto shall, in regard to this particular matter of conjugal society and affection, stand upon an equality, we are unable to find any support for the denial in this reason, and the right, the injury, and the consequent damage, being admitted, there comes into operation another rule, namely, that the law will permit no one to obtain redress for wrong except by its instrumentality, and it will furnish a mode for obtaining adequate redress for every wrong. This rule, lying at the foundation of all law, is more potent than, and takes precedence of, the reason that the wife is in this regard without the pale of the law, because of her inferiority.”
In this case of Foot v. Card, supra, a recovery was permitted without reference to any enabling act authorizing the wife to sue alone. The complaint had been demurred to upon the ground that the wife could not alone maintain this action but that her husband was a necessary party to the action, if any cause of action existed. That contention was disposed of in the following language: “Wherever there is a valuable right, and an injury to it, with consequent damage, the obligation is upon the law to devise and enforce such form and mode of redress as will make the most complete reparation. A technicality must not be permitted to work a denial of justice. The defendant has no possible interest in requiring the husband to be co-plaintiff, other than that she should have security for her costs in the suit, and be protected from a second judgment upon the same cause of action in his name. As she is in no danger of a second judgment, and can compel the plaintiff to give security for costs, it is simply an empty technicality which she here interposes. There are good reasons for the rule that the husband should join in a complaint for damages resulting from an injury to the person, property, reputation or feelings of the wife in every case other than before us. Whenever in any of these she suffers, presumably he suffers. He has a direct pecuniary interest in the result and the defendant is entitled to protection from a second judgment. But in the case before us, it is the pith and marow of the complaint that in alienating the husband’s conjugal affection from the wife, in inducing him to deny his conjugal society, in persuading him to give his adulterous affections- and'society to the defendant, the latter has inflicted upon the plaintiff an injury by which from the nature of the case it is impossible for the husband to suffer injury; for which it is impossible for him to ask redress either for himself or Ms wife. * * * In a case of tMs kind, the wife can only ■ask for damages by and for herself. The law can not make redress otherwise than to her solely, apart from all others, especially apart from her husband; for no theory of the law as to the merger of the rights of the wife in those of the husband could include her rights to his conjugal affection and society. Although all other debts and rights to her mig’ht go to him, there yet remained this particular debt from Mm to her absolutely alone, and beyond the reach of the law of merger. ’ ’
We are not called upon to approve all that we have here quoted from tMs Connecticut case; but the significance of that opinion is that a recovery was permitted without reference to any enabling act permitting the wife to sue alone.
Many other cases are cited in the cases we have quoted from; but those quoted from show upon what theories and under what circumstances recoveries have been permitted. The absurdity and cruel injustice of the common law fiction of the identity of husband and wife has long been recognized, and the tendency of all modern legislation has been toward the emancipation of the wife. But this amelioration of the wife’s condition must come through the legislative function, and her disabilities at the common law exist, except in so far as they have been removed by constitutional conventions, or legislative enactments. Some of .the disabilities under which the wife still labors, as the result of the common law fiction of the legal unity of the husband and wife, are pointed out'in the opinion in the case of Kies v. Young, 64 Ark. 381. But while she still labors under the disabilities there recited, we think the Legislature has clearly manifested its purpose to manumit her, so far as maintaining an action to enforce any legal right she may have, or to secure redress for any actionable wrong inflicted upon her, where the recovery would inure to her benefit. “Where a married woman is a party, her husband must be joined with her except in the following cases:
“First. She may be sued alone upon contracts made by her in respect to her sole and separate property, or in respect to .any trade or business carried on by her under any statute of this State.
“Second. She may maintain an action in her own name for or oca account of her s'ole or separate estate or property, or for damages against any person or body corporate for any injury to her person, character or property.
“Third. Where the action is between herself and her husband, she may sue and be sued alone..” Kirby’s Digest, § 6017.
These words, person, character or property, are of the broadest signification and import, and would appear to include any cause of action which could arise in favor of a married woman, out of any relation which she can legally occupy. Although she still labors under some disabilities, she is given by this statute the power to enforce in her own name any right which she legally possesses. While it appears from a study of the cases, which hold that a wife may sue for the alienation of the affections of her husband, that in some of the States, where the courts so hold, the statutes have entirely manumitted the wife from her common law disability with reference to suing in her own name, it will also appear, from cases which we have cited, and from other cases therein cited, that the right of action has been upheld in the wife’s favor where the enabling acts were not as broad as that of this State.
So that, whether this cause of action be denominated a personal right or a property right, the wife, under the laws of this State, may sue if it is either, and the judgment of the court below is therefore affirmed. | [
-112,
120,
-100,
63,
24,
32,
-86,
-104,
97,
-86,
-89,
-45,
-83,
-53,
16,
111,
32,
43,
85,
99,
-41,
-77,
23,
67,
-10,
-77,
48,
-35,
-79,
-51,
-9,
-42,
77,
48,
74,
-43,
103,
-117,
-59,
80,
-54,
-99,
-88,
-27,
-39,
66,
48,
123,
-44,
7,
113,
-34,
-13,
42,
56,
-57,
41,
46,
75,
-28,
116,
48,
-118,
13,
77,
2,
-77,
38,
-68,
102,
-40,
46,
16,
25,
9,
-24,
114,
-106,
-126,
116,
105,
-117,
0,
96,
98,
-128,
77,
109,
-111,
-102,
7,
118,
-99,
-90,
16,
72,
9,
41,
-74,
-67,
101,
52,
38,
-32,
-10,
93,
28,
108,
11,
-113,
-106,
-80,
-113,
114,
-66,
3,
-21,
-117,
0,
113,
-51,
-88,
92,
65,
122,
-101,
-50,
-42
] |
McCulloch, C. J.
Appellant is a Pennsylvania corporation, doing business at New Kensington, in that State, and at East St. Louis, in Illinois, and instituted this action in the circuit court of Jackson County to re cover the amount alleged to be due on account for goods sold under contract to appellee I. W. Chastain. Appellees T. B. Chastain and C. H. Chastain are also sued as •alleged guarantors of the account. The case was tried before a jury and resulted in a verdict in favor of appellees.
The suit is upon two accounts, namely, one for a balance of $135.26 on an account for goods shipped from New Kensington, and the other for the sum of $308.31, balance on an account for goods shipped fit^m East St. Louis. Separate accounts are exhibited with the complaint. The first account named above covers shipments beginning February 1, 1911, and ending May 11, of the same year; and the 'second account covers shipments from May 25, 1911, to May 24, 1912.
The undisputed evidence shows that in May, 1911, the dealings between appellant and appellee I. W. Chastain were transferred to the East St. Louis office, but the account for balance due was not transferred.
The appellees answered, denying that there was any balance due on the accounts, and pleaded payment in full of the accounts for goods shipped.
The answers of T. B. Chastain and C. H. Chastain contained a denial that the contract of guaranty entered into by them constituted a continuing one, or that it covered the accounts sued on.
The answers of all the appellees also set forth other defenses unnecessary to mention at this time.
In the trial of the case the court eliminated all defenses set forth by appellees except the question of payment of the accounts, and submitted that question to the jury.
It is earnestly insisted by counsel for appellant that there is no testimony of a substantial character sufficient, to sustain the finding that the accounts were paid. They insist that the only statement in the testimony of appellee I. W. Chastain, who was the only witness that testified on his side concerning the payment of the accounts, is a general one, which amounts only to a. statement of a conclusion, and is insufficient to sustain the verdict that the accounts were paid.
There were two accounts exhibited, as above stated, one covering shipments from the New Kensington establishment, and the other from the East St. Louis branch, and an examination of the testimony of appellee I. W. Chastain discloses the fact that his testimony relates entirely to the East St. Louis account. Even as to that account his statements about payment are very vague and far from satisfactory; but we have concluded that his testimony as to that account is sufficient to warrant the jury in finding that the whole of that account was paid. We can not, at least, say that there is no substantial testimony to that effect.
We find, however, that there is an entire absence of any testimony which would tend to sustain the finding that the balance due on the New Kensington account has been paid. Appellee I. W. Chastain does not refer to that account in his testimony, .and appellant adduced testimony, which is undisputed, that the items were correct and that the balance set forth in the account was unpaid. Our conclusion, therefore, is that the jury were not warranted in finding for the defendant on that part of the account, and as appellees had an opportunity to fully develop their case, our conclusion calls for a judgment in favor of appellant for the amount of that balance.
This brings up the question of the correctness of the court’s ruling in holding that the contract of guaranty executed by appellees T. B. and C. B. Chastain was a continuing one. I. W. Chastain was a salesman for appellant under written contract, which specified the territory and the terms. The contract specified the beginning and end of the period of the contract. It also provided that the salesman should be personally responsible for the payment of all goods included in orders sent in by him, and permitted the salesman, at the end of his canvass under the contract, to return to appellant accounts amounting in the aggregate to not more than twenty dollars, and that the latter would relieve the salesman from responsibility for payment of the same by tbe purchasers. It also provided that the salesman should, within one month after the termination of the contract, send his order books and list of customers into appellant’s office. At the time the contract of guaranty was entered into, I. W. Chastain was working under a contract covering the period from January 3, 1910, to July 15, 1910. The contract of guaranty, in the form of a letter signed by the two guarantors, reads as follows:
“In consideration of your having taken into your employ I. W. Chastain, Stuttgart, Arkansas, I hereby guarantee his account and agree to pay for all goods ordered of you and not paid for by him, my liability not to exceed five hundred dollars. ’ ’
New contracts were entered into between I. W. Chastain' and appellant from time to time, the next contract covering the period from December 12, 1910, to December 31,1911.
It will be seen from the foregoing statement that none of the accounts accrued under the contract of employment in existence at the time of the execution of the guaranty, the whole of the account having been incurred during the period covered by the next contract, which was a renewal of the one then in existence.
There was no renewal of the contract of guaranty, and the question which arises is whether or not the contract continued during the whole period of the renewal contracts of employment.
It is clear from the language of the contract that it operated as a guaranty for the amount of $500, and continued as such guaranty up to that amount for The period it was intended to cover. The language of the contract does not specify in express terms the period the same was- to cover, but it is evident therefrom that it related to the contract of employment then in existence.
The subsequent contracts were not strictly renewals, because they covered different periods of time and different territories.
In First National Bank v. Waddell, 74 Ark. 241, we quoted with approval the following language of the New York court:
“Where, by the terms of the guaranty, it is evident the object is to give a standing credit to the principal, to be used from time to time, either indefinitely or until a certain period, there the liability is continuing; but where no time is fixed, and nothing in the instrument indieates a continuance of the undertaking, the presumption is in favor of a limited liability as to time, whether the amount is limited of not. Fellows v. Prentiss, 3 Den. 512.”
The principle there announced is, we think, the correct one, and it controls in this case. There being no specified time, the presumption is against an indefinite continuance. There is, as said by Mr. Brandt in his work on Suretyship and Guaranty, no general rule for determining whether the guaranty is a continuing one or not, each case depending upon the particular language used in the contract.
We think that a fair interpretation of the contract involved in this action limits its application, so far as concerns the time, to the contract of employment then in existence between appellant and I. W. Chastain. The contract recited the fact of appellant having taken I. W. Chastain into employment, and this necessarily referred to the contract of employment then in existence, the term of which ended at a certain time by express stipulation specified in the .contract. It would require stronger language to make the guaranty applicable to another contract of employment covering a different period of time and different territory for its operation.
We are, therefore, of the opinion that the court was in error in holding that the contract of guaranty covered the accounts in suit, and there should have been a peremptory instruction in favor of the guarantors on that issue.
Without discussing the other defenses set forth, we deem it sufficient to say that the court was correct in holding that they were untenable.
The judgment, so far as it exonerates the guarantors from liability, is affirmed, but the judgment in favor of appellee I. W. Chastain is reversed and judgment against him mil be rendered here in favor of appellant for the amount of the New Kensington account, $135.26, with interest from the average date of maturity, which is May 1,1911. It is so ordered. | [
-80,
108,
-7,
-20,
10,
96,
40,
-102,
125,
-96,
53,
83,
-23,
86,
17,
97,
-9,
57,
97,
106,
100,
-77,
7,
99,
-46,
-13,
-95,
-59,
-80,
74,
-20,
94,
76,
32,
10,
-127,
-62,
2,
-63,
28,
-114,
8,
-71,
-28,
-7,
-48,
52,
122,
22,
77,
97,
23,
-5,
46,
21,
75,
105,
40,
107,
-71,
-63,
-16,
-117,
5,
111,
18,
49,
68,
-108,
7,
-54,
30,
-104,
48,
48,
-23,
122,
-90,
-122,
116,
43,
13,
8,
46,
98,
33,
0,
-51,
-68,
-68,
39,
-2,
-97,
-121,
22,
88,
-125,
9,
-74,
-100,
116,
83,
-122,
124,
-24,
5,
24,
124,
7,
-82,
-10,
-94,
15,
118,
-98,
3,
-17,
-125,
-76,
80,
-50,
-16,
92,
71,
59,
-69,
-122,
-51
] |
Wood, J.,
(after stating the facts). 1. The court did not err in refusing to direct the jury to return a verdict in favor of the appellant. It was a question for the jury, under the evidence, as to whether or not the appellant had exercised ordinary care to provide its servant Bunting with reasonably safe appliances with which to perform the work in which he was engaged at the time of his injury. The testimony of appellant’s millwright, who constructed the derrick, was to the effect that he used the usual material in the construction of the same and constructed the same in the usual manner that such machinery was constructed. He stated that the holes through the cap to which the guy lines were fastened were round holes, drilled out for the purpose of passing the guy lines through; that he run the guy lines through the holes, bent them over, parted the ends and brought them back on the main line and made them fast; that they were all fastened in that way. This way of fastening them he considered safe. Sometimes they are fastened with clamps; sometimes with half-hitches. These different ways are all safe. He had put up several this way. The wires could be fastened in the manner indicated “so fast and close that they would break before they would let go.”
But there was testimony on behalf of the appellee tending to show that the falling of the derrick was caused by the breaking of one of the large cables; that soon after the accident, probably that evening, certainly the next morning any way, before the derrick was moved off the skidway, the cable was examined to ascertain the condition of the ends of the wires where the same were broken. The cable was broken where the edges of the wrought iron holes in the cap cut into it. There had been some jerking back and forth. Some of the ends of the strands were bright and some were not. Some of them had the appearance of having been broken before the accident. Some of the ends had turned dark. Half of the ends of the strands were dark, indicating an old break.
There was testimony tending to show that all derricks will fall when their guy wires are worn and broken. A piece of the guy wire, showing .the broken end, was exhibited and identified as the end of the guy wire where the same had broken at the time of the injury complained of.
There was testimony on behalf of the appellee tending to show that the mast pole was loose, playing back and forth a distance of eight or ten inches, and allowing the same to jerk, and that the holes through the plate on top of the mast pole was left without covering, exposing the strands of the guy wires to the edges of the wrought iron or steel plate, thereby causing the guy wires to be cut in two and worn off.
Notwithstanding the testimony of appellant’s millwright that he constructed the derrick in the usual manner, and that he considered it safe, the above testimony on behalf of the appellee made it a question for the jury to say as to whether or not the appellant had exercised ordinary care to furnish a safe derrick.
2. Appellant contends that the falling of the derrick was an inevitable accident. Bunting, at the time of his death, was hooking tongs in the end of a log. He was assisted by a fellow-employee at the other end of the log. These employees stood at the opposite ends of the log and each hooked the tongs in the end next to him. They fastened their hooks in each end of the log and a signal was given to the derrick operator to lift the log. He made two or three efforts to lift same, and raised the log between three and six feet from the ground. While the log was suspended in this position the hooks of Tardy, Bunting’s fellow-employee, pulled out, causing his end to fall to the ground instantly, and the derrick fell at the same time the hooks pulled out. It is contended by the appellant that the jerk caused by this fall caused the derrick to give way by breaking the guy wire opposite the suspended hook at or near the top of the mast pole. But this does not show conclusively that the falling or the jerk was the result of an accident. It was a question for the jury as to whether or not appellant was negligent in failing to so construct the,derrick that it would not fall when subjected to such, strains as shown by the above testimony. The slipping of the tongs or hooks from the end of the log, thereby causing the same to fall and producing a sudden jerk or strain upon the guy wires the jury might have found was one of the incidents of work of that character, which appellant, in the exercise of reasonable care, should have anticipated and should have exercised ordinary care to have counteracted. It was a question for the jury as to whether or not, if such care had been exercised in the construction of the derrick, the same would not have fallen, notwithstanding the slipping of the tongs and the sudden dropping of the end of the log. The j-ury might have found that the exercise of ordinary care upon the part of appellant to properly construct the derrick would have prevented the breaking of the guy wires and the falling of the mast pole, and the resultant injury to Bunting.
3. The mast pole was forty-two feet high, and the plate to which the guy wires were fastened was on top of the same. If the holes in this plate were defective, as the jury might have found, and if the guy wires, by reason of the sharp edges of these holes and the jerking of the mast pole, had been cut and worn so as to render them incapable of holding the mast pole under the strain to which it was subjected, these were not obvious defects and therefore Bunting was not required to take notice of them. . The jury might have found that they were caused by the negligence of the appellant. Bunting, therefore did not assume the risk incident to such defects. They were not risks ordinarily incident to the employment in which he was engaged, but were caused by the negligence of the master, were unknown to the' servant and he did not assume them. Asher v. Byrnes, 101 Ark. 197.
4. If the defective condition of the holes through the cap plate, and the weakened condition of the strands of the guy wires caused thereby, contributed to the injury, and this was the result of negligence on the part of the appellant, it would be liable, notwithstanding the slipping of the tongs from the- end of the log may have also concurred in producing the result. Such being the case, the negligence of the company was but one of the co-operating causes of the injury, without which, as the jury might have found, same would not have occurred. See 2 Labatt on Master & Servant, 813; Railway Co. v. Triplett, 54 Ark. 299; Kansas City, F. S. & M. Rd. Co. v. Becker, 67 Ark. 1-8; Marcum v. Three States Lumber Co., 88 Ark. 28-37.
5. Over the objection of appellant, appellee was permitted to testify that her husband, Bunting, was good to his family; that he was interested in the education and training of appellee’s little girl; that he wanted to raise the child right and give it a good education. On cross examination it developed that the child was the daughter of appellee by her first husband. Further on in the trial another witness was asked whether or not Bunting took an interest in the education and training of the little girl, whereupon counsel for appellant remarked, “If the court please, I think it has come to a place where all reference to the little girl should be eliminated entirely,” and the record shows that the court “sustained” counsel in his remarks.
The court, in its instruction on the measure of damages, told the jury that if they found for the appellee they would assess her damages at such sum as they found “from the evidence would compensate her for the loss of contribution from him for her support through life.” The rulings of the court in sustaining the remarks made by the counsel and the instructions given on the measure of damages were tantamount to removing from the jury the testimony concerning the disposition of Bunting toward appellee’s child. If the admission of this testimony was orroneous (which we do not decide), the rulings of the court, as above indicated, were sufficient to remove all prejudice to appellant that might have otherwise been caused thereby. See Bunyan v. Loftus et al., 57 N. W. 685-687.
6. A witness was asked the following question: “Do you know whether or not it was generally understood from that time on to when Mr. Bunting was killed, by the old employees there, as dangerous?” (that is, that the derrick was dangerous). The witness answered, “Yes, sir.” Appellant then objected to the question and an swer and Ms objection was overruled. There was no prejudice to appellant in the ruling of the court. ‘ ‘ Common knowledge of the servants themselves who have to handle the instrumentality in question that it is an improper one for the purposes for which it is furnished” is admissible, says Mr. Labatt, as tending to establish notice on the employer’s part of the defective character of the machinery. “It is not competent to prove the ultimate fact that the instrumentality was actually an unsuitable one.” 3 Labatt on Master & Servant, 1030. Such testimony is competent for the purpose of showing that appellant knew, or might have known, by the exercise of reasonable diligence, that the instrumentality was defective and unsafe. See Railroad v. Shannon, 43 Ill. 338; Railroad v. Fredericks, 71 Ill. 294. See St. Louis, I. M. & S. Ry. Co. v. Morgart’s Admx., 45 Ark. 318-27.
7. The appellant complains because the court overruled its motion to strike out the testimony of certain witnesses to the effect that part of the wires composing the main guy wire, wMch was broken, were not inserted through the hole in the cap on the top of the mast pole. Appellant urges that this testimony was not relevant to the allegations of the complaint.
The court instructed the jury that the evidence could only be considered by them in so far as it tended to establish the allegations of the complaint that the guy wires were old, rusty and rotten and caused to be worn loose. There was evidence tending to show that some of the strands of the guy wire were dark and rusty, indicating an old break. In view of the instructions of the court, there was no error in admitting the evidence, for it was competent as tending to prove that the guy wire was rusty, old and worn, and therefore in a weak and defective condition.
Finding no reversible error, the judgment is affirmed. | [
48,
120,
-40,
-35,
24,
-32,
58,
-40,
17,
-123,
-25,
87,
-35,
-41,
92,
103,
-89,
-1,
-44,
35,
-46,
-93,
23,
-29,
-110,
-13,
-77,
-59,
-79,
110,
112,
-36,
77,
48,
-62,
-43,
102,
2,
69,
88,
-114,
21,
-117,
-23,
59,
80,
52,
126,
-74,
75,
49,
-98,
-29,
42,
28,
-49,
41,
44,
107,
44,
-48,
113,
-102,
47,
125,
22,
-77,
4,
-98,
37,
-40,
60,
-104,
-75,
0,
-24,
114,
-76,
-127,
-44,
41,
-119,
0,
98,
98,
1,
13,
105,
-24,
-104,
47,
-18,
-115,
-90,
28,
40,
11,
33,
-73,
-97,
107,
48,
22,
126,
-13,
-39,
-36,
100,
3,
-122,
-76,
-109,
13,
36,
-100,
-116,
-53,
-125,
16,
113,
-52,
-70,
94,
4,
66,
27,
-122,
-66
] |
George Rose Smith, J.
This is a suit by the appellee, Wendell O. Epperson, upon a Family Combination Automobile Policy that provided comprehensive liability and accident protection for him and members of his family. Epperson’s daughter was hurt in an automobile collision and incurred medical expenses of more than $2,000. The appellant admits its liability to the extent of $1,000; the dispute is about whether it is liable for an additional $1,000 of the total medical bill. This appeal is from a judgment holding the insurer liable for the entire $2,000 claimed by the plaintiff.
We may divide the insurance coverage afforded by this policy into two categories. First, the contract described Epperson’s two cars, a Pontiac and a Ford, and provided certain liability and property damage insurance with respect to claims involving those vehicles. Secondly, the policy afforded other coverage having no connection with either insured automobile. The present claim falls in the second category; that is, medical services were to be provided if Epperson or certain members of his family should be injured in any automobile accident, regardless of whether either insured vehicle was involved. The record does not tell us whether Miss Epperson was in one of the insured cars when she was hurt; under the terms of the contract that fact was immaterial.
The printed policy contained a schedule offering nine different kinds of insurance protection. A separate premium for each car was to be inserted for each form of coverage actually being put into effect. The provisions for Coverage C, medical expense, were as follows:
“Premiums Limits of Liability Coverages
“Car 1 Car 2
# * * *
‘ ‘ C $7.20 $4.20 1,000.00 dollars each person Medical Payments”
There were two other paragraphs in the contract that are pertinent:
“Limit of Liability: The limit of liability for medical payments stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all expenses incurred by or on behalf of each person who sustains bodily injury as the result of any one accident.
* * # *
“Two or More Automobiles: When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each.”
We think the trial court’s conclusion to have been correct. As far as this aspect of Coverage C is concerned the insurer would have been liable for $1,000 if only one premium had been paid upon a single car. It is reasonable to think that the additional premium charged for the inclusion of a second car was intended to afford some corresponding added benefit to the insured. To this end the policy provided that its terms should apply separately to each car. If Epperson had carried a separate policy upon each vehicle he would have been entitled to receive $1,000 under each contract. The fact that the two coverages were combined in one policy does not compel us to reach a different result. To say the least, the combination contract is fairly open to two conflicting interpretations; in this situation we must construe it strictly against the insurer. We are unable to agree with the holding in Sullivan v. Royal Exchange Assurance, 5 Calif. Rptr. 878, where the court allowed only a single award of benefits under a similar policy.
It is also contended that the appellee did not recover the full amount sued for and was therefore not entitled to the statutory penalty and attorney’s fees. This argument is without merit. The complaint sought a recovery of $2,000. At first the defendant denied all liability. Later on it amended its answer to admit its obligation to the extent of $1,000, and a check for that amount was tendered. After the case had been submitted to the court the parties stipulated that Epperson might cash the tendered check without prejudice to his right to seek the other one thousand dollars. The complaint was then amended, quite properly, to reduce the claim to the sum left in dispute. The defendant has never admitted its liability for that amount. The plaintiff has evidently recovered the full sum sued for — half by the defendant’s admission and the other half by the court’s judgment.
Affirmed. | [
-14,
121,
-12,
-20,
24,
98,
34,
50,
-1,
-64,
-92,
19,
-1,
-58,
-107,
47,
-26,
57,
97,
42,
-73,
-93,
23,
-78,
-42,
-109,
-77,
-59,
-124,
-55,
109,
-3,
77,
40,
-118,
5,
98,
26,
-51,
116,
94,
-128,
-71,
-27,
89,
-46,
-12,
122,
84,
69,
117,
-113,
-49,
38,
24,
-58,
45,
42,
59,
-87,
-127,
-16,
-113,
5,
127,
27,
-80,
68,
-104,
35,
-40,
12,
-104,
-77,
40,
-104,
50,
-90,
66,
92,
111,
-103,
8,
-94,
102,
0,
81,
-52,
-36,
-104,
46,
110,
15,
-121,
-106,
121,
25,
7,
-65,
-97,
122,
16,
5,
124,
-4,
85,
95,
105,
19,
-117,
-42,
-95,
-17,
-30,
92,
-118,
-18,
-113,
-78,
113,
-56,
-80,
92,
69,
127,
-109,
22,
-86
] |
Hart, J.
J. M. Knowles has appealed from a judgment of conviction for the crime of incest, charged to have been committed by committing adultery with Pearl Knowles, his daughter. The facts are as follows:
Pearl Knowles testified: I am eighteen years of age, and am the daughter of the defendant, J. M. Knowles. I have had sexual intercourse with him several times a month for the past three years in Benton County, Arkansas. As a result of that intercourse, I gave birth to a child. It died about two or three days after its birth, and my father buried it in the yard near the house. I submitted to all these acts of intercourse of my own accord.
Bob Campbell testified: I am chief of police of the city of Eureka Springs, in Carroll County, Arkansas. I arrested the defendant there, and he wanted to know if he was charged with murdering his child. I told him that he was charged with having sexual intercourse with his daughter. ' He said; “If I am not charged with murdering the child, I am not uneasy. I do not care for the charge of doing business with my daughter, for I am guilty of that.”
Sid Murphy testified: I am constable in Benton County, Arkansas. I went to Eureka Springs after the defendant was arrested there and brought him back to Benton County. While on the way back he confessed to me that he had been having intercourse with his daughter, Pearl Knowles, for the past three years.
Campbell and Murphy each stated that the confession made to him was a voluntary one.
A marriage certificate was introduced to the effect that John M. Knowles - and Miss Catherine Edmonson were united in marriage in the State of Kansas on the 25th day of August, 1895.
Margaret Jerminiger testified: I live in the State of Kansas, and have known the defendant for twenty years. He lived in Kansas until about three years ago. The Catherine Edmonson mentioned in the marriage certificate above referred to is my sister and the wife of the defendant. He has lived with her as his wife since their marriage, and she is now «present in the court room. I have visited them frequently during their "married life.
Jane Lovette testified: I attended Pearl Knowles when she gave birth to the child testified to in this case. The baby died two days after it was born.
Counsel for defendant contends that the court erred in refusing to give the following instruction:
“The court instructs the jury that you can not convict the defendant upon the confession made by him to witnesses Sid Murphy and Bob Campbell unless SRich confession is accompanied by other proof that the offense with which the defendant is charged was actually committed by him and the proof required to accompany such confession, in order to convict the defendant, can not be made by Pearl Knowles alone.”
Section 2385, of Kirby’s Digest, provides that the confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such offense was committed. See, also, McLemore v. State, 164 S. W. (Ark.) 119.
‘ Section 2384, of Kirby’s Digest, provides that a conviction can not be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.
The testimony shows that the prosecuting witness voluntarily committed sexual intercourse with her father, and this made her an accomplice. In- most jurisdictions where the question has arisen, it has been held that the evidence of a person who was a voluntary party to an incest must be corroborated, because of statutes requiring the evidence of accomplices to be corroborated. See case note to 18 Am. & Eng. Ann. Cases, at page 975; see, also, Gaston v. State, 95 Ark. 233. It is argued that the confession of the defendant is not a sufficient corroboration of the testimony of the prosecuting witness to warrant the conviction of the defendant. To support his contention, counsel relies upon the case of Melton v. State, 43 Ark. 367; but we do not think that case is authority for the position assumed by counsel. In that case the alleged accomplice testified that the defendant confessed to him that he had committed the crime, and his testimony, together with that of another accomplice, was held not sufficient to warrant a conviction. Here the confession was not made by the defendant to an accomplice, but was voluntarily made to the officers who arrested him. The defendant’s own free confession was sufficient proof to show his own connection with the crime. It has been expressly held that a confession of a defendant made to one who is not an accomplice, is sufficient to corroborate the testimony of an accomplice. Patterson v. Commonwealth, 86 Ky. 313; People v. Cleveland, 49 Cal. 578; Partee v. State, 67 Ga. 570. In the latter case it was urged that the court erred in charging the jury to the effect that the confession of the defendant was sufficient proof or corroboration to support the testimony of the accomplice and to authorize _ a legal conviction if it belie.ved that he had voluntarily and freely made it. The court expressly held that voluntary confessions are sufficient to corroborate the testimony of an accomplice so as to support a verdict of guilty. We are of the opinion, therefore, that the court did not err in refusing to give instruction No. 4, asked by the defendant.
In the case of Martin v. State, 58 Ark. 3, the court held that an indictment of a father for incest committed by adultery with his daughter is defective if it fails to allege that the father was at the time a married man. The indictment in the instant case does allege that the father was a married man at the time he committed the incestuous adultery; but it is contended by counsel for defendant that there is not sufficient proof to show he was married. We do not agree with him in that contention. A marriage certificate was introduced in evidence showing that the defendant had married Catherine Edmonson in the State of Kansas on the 25th day of August, 1895. Margaret Jerminiger testified that the Catherine Edmonson mentioned in the marriage certificate was her sister and the wife of defendant; that she was alive at the time of the trial, and that the defendant had lived with her as his wife for the past twenty years. This was sufficient to establish the fact that the defendant was a married man at the time the crime was committed.
There is no 'error in the record, and the judgment' will be affirmed. | [
-16,
108,
-83,
44,
42,
-64,
10,
44,
82,
-125,
-15,
119,
-19,
78,
4,
127,
42,
63,
68,
105,
-45,
-106,
23,
33,
-46,
-13,
127,
-36,
-10,
93,
-2,
-44,
73,
32,
94,
-47,
66,
74,
-91,
92,
-122,
23,
-120,
-28,
18,
82,
36,
97,
20,
15,
101,
62,
-77,
42,
21,
-17,
105,
44,
75,
-68,
92,
113,
-70,
23,
-97,
52,
-110,
32,
-105,
-115,
-48,
62,
-40,
49,
32,
-24,
51,
-124,
-128,
116,
79,
41,
-116,
50,
98,
41,
-43,
-57,
56,
-40,
15,
126,
-99,
-89,
88,
1,
73,
109,
-66,
-107,
104,
20,
-114,
-8,
-8,
-26,
92,
-32,
11,
-49,
-76,
-127,
73,
123,
-112,
-70,
-13,
109,
114,
117,
77,
-30,
76,
71,
58,
-109,
-113,
-14
] |
Hart, J.
This action was commenced before a justice of the peace by Williamson Bank & Trust Company against J. B. Miles, Jr., to recover on a promissory note which was executed by the defendant for the sum of two hundred dollars. The plaintiff recovered judgment before the justice of the peace, and an appeal was taken to the circuit court, where the case was tried before the court sitting without a jury. The circuit court found in favor of the defendant, Miles, and the plaintiff, Williamson Bank & Trust Company, prosecutes this appeal to reverse the judgment rendered in favor of the defendant. . The facts are as follows:
S. M. Williamson testified: I am president of the Williamson Bank & Trust Company, a banking corpora tion organized under the laws of the State of Tennessee, doing business in the city of Memphis. The bank, in the ordinary course of its business, makes a practice of discounting notes and negotiable instruments. The note shown me is signed by J. B. Miles, Jr., dated August 29, 1912, and due three months after date. Miles executed the note in favor of himself and endorsed it in blank. On the 13th day of November, 1912, our bank purchased the note from Rhea P. Cary, attorney for Lamar Heiskell, receiver, and paid therefor the sum of two hundred dollars. Heiskell had been appointed receiver for the Southwestern Motor Car Distributing Corporation; which was the owner of the note. The amount paid for the note was placed to the credit of the receivership to enable the receiver to have funds' to take care of and pay for certain oars which were in the oity at that time and upon which drafts with bills of lading attached had been drawn. The proceeds thus enabled the receiver to obtain a very considerable profit for the receivership by being able to protect the purchase of the cars. Neither the Williamson Bank & Trust Company nor myself had any knowledge or information whatever of the circumstances attending the execution of said note except that Mr. Cary stated to me that the note was executed in payment of stock which had been subscribed by Miles to the motor car distributing corporation. I had no knowledge whatever that there was any defense to the note. The note is past due and Miles has refused to pay it. I did not know that he claimed to have any defense whatever to the note until this suit was instituted. The suit was commenced on April 17, 1913.
The defendant, J. B. Miles, Jr., testified in his own behalf as follows: I executed the note sued on and introduced in evidence. At the time of the execution of the note a written receipt was given me in exchange for it, which is as follows:
“August 29, 1912. Southwestern Motor Car Distributing Corporation, Memphis, Tennessee. Received from J. B. Miles (note) $200 for two hundred shares of the preferred stock of the Southwestern Motor -Car Distributing Corporation. In -ease the stock is fully paid for and is not tendered the consideration received by this corporation will be refunded. (Signed) P. A. Daulter.”
The consideration for the note was stock in the Southwestern Motor Car Distributing Corporation. The agent of the corporation who induced me to subscribe for the -stock and execute the note represented to me that the corporation had plenty of money, but only wanted me to take two hundred dollars’ worth of stock because of my influence. He told me that if I did not get the stock they would-pay the money back. The corporation was engaged in selling automobiles. Before the note was presented for payment the corporation went into the hands of a receiver. The stock' was never sent to me.
The undisputed evidence shows that Miles, the maker óf the note, drew it to his own order and then endorsed it in blank and delivered it to the agent of the Southwestern Motor Car Distributing Corporation. It became then, in-legal effect, a note payable to bearer, and no written endorsement was necessary to pass the title. Hale v. Citizens Bank of Monette, 111 Ark. 258, 163 S. W. (Ark.) 775. In that ease the court held that where one makes a note payable to himself or order, endorses it in blank, and delivers it to the agent of the company in whose favor it was executed, it becomes in effect a note payable to bearer, and its endorsement by the agent of the company in whose favor it was made is not necessary to constitute the holder of it a bona fide holder in due course of business.' Williamson, the president of the plaintiff company, testified that he purchased the note in due course of business and paid therefor its face value. He stated that no endorsement was made by the receiver from whom he purchased it because the note was made payable to the maker thereof and because the attorney for the receiver guaranteed its payment and on this account it was not considered necessary for the receiver to endorse the note. Williamson further testified that he paid full value for the note and placed the amount to the credit of the receiver in order to enable the latter to have funds with which to take care of and'pay for certain motor cars; that at the time the bank purchased the note neither it nor its officers and agents had any notice whatever of any defect in, the note or that there was any defense to it. Williamson’s testimony in this respect was uncontradicted. It was reasonable and consistent with itself, and there was no fact or circumstance introduced in evidence which tended in any way to contradict it. Therefore, whatever may be the rule elsewhere, under the principles of law decided in the case of the Bank of Monette v. Hale, 101 Ark. 388, the court should have directed a verdict for the plaintiff. In that case the amount which the bank paid for the note was placed to the credit of the insurance company in whose favor the note was executed and the proceeds remained in the bank for a period of one year. On the next day after the bank purchased the note it was notified by the maker thereof that he had a valid defense to the note and did not intend to pay it. • Although the amount which the bank had paid for the note was then in the bank placed to the credit of the corporation in whose favor the note was executed, the court held that the undisputed evidence showed that the bank was a bona fide purchaser for value in due course of business and was entitled to recover.
It follows that the court erred in not directing a verdict for the plaintiff. For that error the judgment will be reversed, and, inasmuch as the case has been fully developed, judgment will be entered here for the amount of the note with interest thereon at 6 per cent per annum from the 29th day of August, 1912. | [
-14,
125,
40,
-114,
10,
-32,
42,
26,
18,
66,
-73,
-45,
-5,
-58,
16,
55,
-26,
63,
-11,
104,
-27,
-77,
-101,
-93,
-6,
-77,
93,
65,
-75,
77,
-28,
84,
76,
48,
-24,
31,
70,
64,
-63,
-36,
78,
56,
59,
-28,
-7,
-48,
52,
-22,
21,
75,
81,
-114,
-29,
47,
28,
78,
105,
43,
107,
-87,
-48,
-16,
-118,
71,
127,
20,
-112,
69,
-108,
3,
-56,
46,
-120,
55,
32,
-71,
112,
-74,
6,
-12,
105,
25,
9,
34,
102,
18,
21,
43,
-40,
-116,
39,
-34,
-113,
-122,
-16,
9,
10,
39,
-97,
-99,
-6,
18,
-121,
-36,
-22,
85,
25,
40,
3,
-49,
-106,
-125,
-85,
54,
30,
11,
-5,
-77,
50,
114,
-49,
-32,
93,
118,
126,
-101,
79,
-79
] |
Wood, J.
(after stating the facts.) Section 5478, Mansf. Dig. provides: “A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive or engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said road shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of two hundred dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer and the other half to the county; and the corporation shall be liable for all damages which shall be sustained by any person by reason of such neglect.” “Every neglect” creates a cause of action under the above statute. The failure to comply with the requirements of sec. 5478, supra, is not a crime, as was held by this court in Railway Company v. State, 55 Ark. 200. See also Railway Company v. State, 56 Ark. 166. Nor are the same rules as to pleading and evidence in misdemeanors applicable by analogy to cases of this kind. The learned circuit judge, it appears, proceeded as to the proof and' the statute of limitations, as though the appellant had been charged with a misdemeanor.
Sec. 4482, Mansf. Dig., provides that “all actions upon penal statutes, where the penalty or any part .thereof goes to the State or any county or person suing for the same, shall be commenced within two years after the offense shall have been committed, or the cause of action shall have accrued.” So that two years is the period of limitation. If the complaint in this case had alleged that the defendant company, within two years prior to the filing of the complaint, had failed to ring a bell or sound a whistle on one of its engines, at a crossing named, in violation of the statute, would it have been sufficiently definite to have enabled the defendant to make defense? Certainly, under such latitudinous pleading, the defendant could not know on which particular engine the plaintiff was charging the delict occurred, out of perhaps as many as ten thousand that had passed over the crossing within the two years. Counsel, in their brief, make an estimate of the number of trains passing monthly, which, if continued through the two years, would make more than ten thousand trains passing at the crossing. Should the company deny the charge, in order to defend against it successfully, it would have to bring as witnesses the employees on the engine charged with the duty of ringing the bell or blowing whistle. That would put in attendance upon the court a multitude of witnesses to defend a single suit. This is an extreme statement of the case, but it only demonstrates the necessity for definite pleading. True, the time is not material, further than it must be within two years; but it may be all important in the way of designating the particular failure constituting the cause of action.
In cases of this kind the complaint must be made so specific as to advise the company of the particular train on which, and the crossing at which; the alleged failure occurred (whether it be by designating the hour, the direction of travel, the number or kind of train, is immaterial), so that the company maybe permitted, if it desires, to defend against some particular cause of action. The presumption is that the railway company will do its duty, and, as the burden is upon the State to show that she is entitled to the penalty, it is but just and fair that she make her charges specific, and sustain them by corresponding proof.
Mr. Pomeroy says: “The very object and design of all pleading by the plaintiff, and of all pleading of new matter by the defendant, is that the adverse party may be informed of the real cause of action or defense relied upon by the pleader, and may thus have an opportunity of meeting and defeating it, if possible, at the-trial. Unless the petition or complaint on the one hand, and the answer on the other, fairly accomplishes this, purpose, the pleading would be useless ceremony, productive only of delay, and the parties might be better permitted to state their demands orally before the court at the time of the trial. Pomeroy, Rem. & Remed. Rights, sec. 554.
The plaintiff alleged that, on the 24th day of February, 1889, about 11 o’clock a. m., the defendant, on a certain engine of a passenger train going south failed to ring bell or sound whistle, and proved on the trial that in the spring of 1889, on a certain engine of a freight train going north, the failure occurred. This was a total variance—a failure of proof—and does not come within the purview of secs. 5075, 5076 and 5080-81, Mansf. Dig., with reference to amendments.
A freight train is not a passenger. North and south, are antipodes. So that the cause of action alleged, and the cause of action proved, are not only dissimilar, but separate and distinct. The conditions here presented come within the terms of sec. 5077, Mansf. Dig. which provides : “Where however, the allegation of the claim or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its-general scope and meaning, it is not to be deemed a case-of variance within the last two sections, but a failure-of proof.”
Had the proof shown that it was on the same identical engine, although the informant might have been mistaken as to the day, that would have been a variance susceptible of correction. But here the discrepancy between the allegata and probata is so great that it becomes a total divergence, which could not be amended without changing the cause of action. Mansf. Dig. sec. 5080.
Mr. Pomeroy says: “If the divergence is total, that is, if it extends to such an important fact, or group' of facts, that the cause of action or defense as proved would be another than that set up in the pleadings, there is plainly no room for amendment, and a dismissal of the complaint or rejection of the defense is the only equitable result.” Pomeroy, Rem. and Remed. Rights,, sec. 554, supra; 2 Rice on Evidence, p. 661 et seq.; Newman on PI. 723; Max. on Code PI. 583; Green’s Pr. and PI. sec. 475 et seq ; Walter v. Bennett, 16 N. Y. Rep. 254; Kelsey v. Western, 2 Comstock’s Rep. 506; Grant v. Burgwyn, 88 N. C. 95.
It follows that the judgment must be reversed, and cause remanded for new .trial. | [
-16,
120,
-36,
-66,
-118,
-32,
50,
-102,
67,
-31,
-25,
-105,
-17,
-61,
-104,
37,
-10,
111,
85,
59,
85,
-125,
95,
3,
-78,
-109,
-43,
-59,
53,
79,
-10,
-42,
12,
48,
-54,
-43,
103,
74,
69,
88,
-114,
47,
-101,
-28,
49,
112,
36,
122,
68,
15,
49,
-34,
-29,
42,
24,
-49,
105,
61,
-17,
-7,
-64,
113,
-102,
5,
49,
0,
-93,
6,
-100,
39,
96,
29,
-120,
17,
1,
-88,
115,
-94,
-127,
-44,
105,
-87,
-128,
102,
98,
-95,
13,
111,
-84,
-120,
38,
118,
-97,
-89,
48,
104,
11,
47,
-97,
-105,
54,
20,
7,
-18,
-17,
-123,
83,
100,
1,
-49,
-76,
-125,
-35,
-26,
-106,
51,
-17,
-77,
16,
81,
-50,
-78,
94,
7,
50,
-97,
-98,
-36
] |
Bunn, C. J.
(after stating the facts). The objections that plaintiff should have sued as administrator, instead of merely denominating himself the administrator of deceased, and also that he failed to show his official character by a proper profert of his letters of administration, should have been made and insisted on by way of motion, at an earlier stage of the proceedings, and are not available now.
At common law, no action lay for the death of a person, produced by the negligence or wrongful act of another. Now, by statute, (sections 5225 and 5226 Mansfield’s Digest) an action lies for damages growing out of the death, at the instance of the administrator, for the benefit of the widow and next of kin, and, in the absence of an administrator, at the instance of the heirs at law, for the same purpose. The suit authorized by these two sections is not for the benefit of the estate of deceased. The proceeds do not go into the hands of the legal representative, to be distributed to creditors and heirs and •others entitled under the statute of administration, but to be distributed to the 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 the. damages are to be such as the jury in each case “may deem a fair and just compensation, with reference to pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person.”
Again, a suit for damages to person or property, which might be brought by the injured person, did not, at common law, survive to his legal representative, and if it had been instituted by the deceased in his life time, it abated at his death. Now, by statute, however, (section 5223 Mansfield’s Digest) an “action may be maintained against the wrong doers, and such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrong doer, or after his death (that of the wrong doer), against his •executor or administrator, in the same manner and with like effect in all respects as actions founded on contracts.”
In construing these several statutes together, (for they bear some relation to one another), this court, in the case of Davis v. Railway, 53 Ark. 117, said : “ The right of action, given by the latter statute (sections 5225 and 5226, Lord Campbell’s act) to the personal representative of one whose death has been caused by the ■default of another, is created by the statute, and is not a continuation of the right of action which the deceased had in his life time. * * * * * "
The right which accrued to the deceased survives to his .administrator by virtue of the former statute (section 5223, Mansfield’s Digest); the newly created right (by -section 5225) results from, and accrues on, the death of the injured party. Both actions are prosecuted in the name of the personal representative, where there is one, and may proceed pari passu, without a recovery in the one having the effect of barring a recovery in the other, because the suits are prosecuted in different rights, and the damages are given upon different principles to compensate different injuries. One is for the loss sustained by the estate and for the suffering from the personal injury in the life time of the decedent, the recovery of which goes to the benefit of the decedent’s creditors, if there are any; the other takes no account of the wrongs done to the decedent, but is for the pecuniary loss to the (widow and) next of kin, occasioned by the death alone. The death is the end of the period in the one case, and the beginning in the other. In the one case the administrator sues as legal representative of the estate, for what belonged to the deceased; in the other, he acts as trustee for those upon whom the act confers the right of recovery for the pecuniary loss inflicted upon them.”
The suit at bar must be regarded as an action by the plaintiff as administrator for the benefit of the estate of the deceased ; and, viewing it as such, the complaint, which lays its damages for the death of the deceased, would be bad on demurrer; for damages for the death of decedent, when recovered, are no part of the assets of the estate, to be distributed to creditors and so forth. But as no demurrer was interposed, and since the manner of eliciting the testimony, the language of the instructions, the argument of counsel, and the verdict of the jury and judgment of the court, all go to show that the parties, the jury and the court all treated the claim of the plaintiff as one for the injury to deceased in his life time—that is to say, for the pain and suffering he endured from the moment he was stricken until the moment of his death—which was legitimate— we will also treat the case in that way, and consider the complaint as amended to correspond with the proof.
The court is of the opinion that the evidence of negligence on the part of the defendant company, and its, servants and employees, is sufficient to authorize the verdict of the jury, and that the evidence as to pain and suffering is sufficient to justify the verdict for actual damages ; and a majority is of the opinion that there is, evidence of wanton disregard of the rights and safety of others on the part of the defendant’s employees, upon which the jury may have assessed punitive damages, as. they did.
As to the defense of contributory negligence, a majority of the court is of the opinion that, whether or not the conduct of deceased in handling the broken wires was careless somewhat depends upon the object he had in so doing, and also upon his knowledge or ignorance of all the elements of danger connected therewith,, and that the jury may have found from the evidence that he was not guilty of contributory negligence, notwithstanding the warnings that were given him.
Thus, having in view the prerogative of the jury,, we do not feel justified in disturbing their verdict.
The instructions of the court, as g'iven, when taken all together, we think fairly and substantially declared the law to the jury.
The judgment is therefore affirmed. | [
-96,
108,
-36,
58,
-101,
32,
42,
58,
97,
-21,
-89,
83,
-17,
-53,
13,
47,
59,
-25,
81,
107,
-49,
-93,
119,
34,
-2,
-109,
-7,
84,
-94,
-51,
119,
-33,
76,
48,
42,
-43,
-25,
98,
-63,
84,
10,
8,
-118,
-23,
-7,
64,
48,
111,
86,
31,
117,
-33,
51,
43,
16,
103,
104,
40,
88,
-84,
-16,
-80,
-114,
-115,
127,
6,
-94,
6,
-100,
-81,
88,
12,
8,
-71,
0,
-20,
50,
-74,
-122,
-12,
111,
9,
8,
98,
-29,
51,
-63,
-11,
-80,
-120,
14,
-90,
15,
-121,
28,
81,
11,
45,
-90,
-97,
123,
68,
7,
-4,
-4,
84,
92,
44,
67,
-118,
-42,
-77,
-20,
-30,
-100,
-117,
-18,
-121,
112,
81,
-51,
-94,
93,
71,
120,
-37,
-123,
-48
] |
Neill Bohlinger, Associate Justice.
Alice Connolly Ousley died intestate in Pulaski County Arkansas seized and possessed of an interest in several pieces of real estate and the following are her surviving children and heirs. Sarah O. Cálmese, Dorothy O. Akins, Helen Ousley Parker, Myra Ousley Goodwin, Evelyn Ousley Sloan, Fred Ousley, Lloyd O. Batiste, Donald C. Batiste, Kenneth Batiste, Jack Ousley, Tyrleese Ousley Freeman, and Raymond Ousley.
Sometime after the death of Alice Connolly Ousley two of her daughters, Sarah O. Cálmese and Dorothy O. Akins, were appointed co-administratrices of her estate. The administratrices filed their inventory listing ten (10) pieces of real property to which they attached a value of $2,530.00. No personal property of any kind was found and no claims have been filed against the estate.
The co-administratrices thereafter applied to the Probate Court of Pulaski County praying authority to sell the real estate of which Alice Connolly Ousley died seized and possessed. The court found there were no funds on hand belonging to the estate to pay costs of administration or attorney’s fees and that the property should be sold at private sale and after the payment of the expenses of the sale, together with the costs of the administration, the proceeds of the sale should be divided between the heirs.
It appears from the record that about this time the administratrices contacted the Block Realty Company, a real estate concern, which ordered an abstract, as had been requested, and secured purchasers for the property. The abstract revealed that instead of owning all the property, Alice Connolly Ousley had only a 1/7 interest therein, the other 6/7 being in her several children and grandchildren.
At this point the co-administratrices appear to have dropped ont of the proceedings and Engene R. Weinstein, who is designated in the record as administrator in succession of the estate of Alice Connolly Ousley, deceased, filed in the Pulaski Chancery Court a partition suit in which he states that the land involved in this case descended from Jack Ousley, deceased, who was the husband of Alice Connolly Ousley to whom, by will, he devised a 1/7 interest in the land, 1/7 to his daughter, Edna Ousley Batiste, 1/7 to Sarah O. Cálmese, 1/7 to Dorothy O. Akins, 1/7 to Helen Ousley Parker, 1/7 to Myra Ousley Goodwin, and 1/7 to Evelyn Ousley Sloan. In his complaint the administrator states that the heirs of Jack Ousley had been unable to agree on an equitable division of the lands and it would be to the best interest of all parties that the same be sold and the proceeds divided according to their several interests.
To this complaint the children and grandchildren who acquired an interest in the property from Jack Ousley filed an answer in which they admitted that they were tenants in common but denied that a sale of the lands were advisable or necessary. The Block Realty Company, a partnership, filed an intervention in which it was set forth that the firm had inventoried the lands involved at the request of Sarah O. Cálmese and Dorothy O. Adkins; had procured abstracts of the property at a cost of $310.00, and had obtained purchasers for the property who were ready, willing and able to buy the same at the appraised value. The intervenors prayed that if the court ordered the property sold, that the intervenors be paid the cost of the abstract and the real estate commission amounting in all to $775.00 from the gross proceeds of the sale.
The heirs of Jack Ousley filed a motion to dismiss the intervention of the Block Realty Company on the grounds that the intervenors were not entitled to judgment and that if the intervenors had a cause of action it was for a breach of contract against only a part of the defendants and that it was an improper joinder of parties.
The motion was presented to the chancellor who overruled the motion to dismiss the intervention. The heirs then filed an answer alleging, as had been done in the motion to dismiss, that the intervenors and attorney were not entitled to judgment and that the property should not be ordered sold.
The issues being thus joined, on December 12, 1960 the case was heard by the chancellor who found that there Avas due the Block Realty Company the sum of $775.00 for services and expenses they had incurred which should be paid from proceeds of the sale of the involved real estate; that the attorney for the plaintiff was allowed the sum of $600.00 to be paid as costs from the proceeds of the sale, and that if the heirs did not pay the above awards within thirty (30) days, a commissioner was appointed to sell the lands at public sale. From the proceeds of such sale there Avould be paid the costs, including the award for the attorney’s fees and the judgment in favor of the intervenors, Block, with the balance of the sale money to be paid into the registry of the court pending further proceedings to determine the owners.
From this judgment and order comes this appeal. To reverse this judgment, the appellants list three points but it being apparent that the case must be reversed and dismissed on other grounds than those relied on, we pass over appellants ’ cited points in order not to unduly prolong this opinion.
This suit was improperly brought by an administrator, being primarily and solely a suit for partition. When Alice Connolly Ousley died intestate possessed of some interest in the property involved, be that interest much or little, her title at that moment was vested in her heirs, subject to the payment of her debts. Title to the property never did vest in any of the administrators to this estate. As we said in the case of Graham v. Quarles, 206 Ark. 542, 176 S.W. 2d 703, p. 545-46:
‘ ‘ The rule announced by this court appears to be in conformity with the rule adopted by all courts which have had occasion to consider the question. At 47 Corpus Juris, p. 300, we find the following statement: ‘Title, legal or equitable, in the person or persons seeking partition is essential to the maintenance of the suit. Where the record in a partition suit fails to show a good title in the parties to the property involved, partition will not be decreed notwithstanding the allegation of title by one party and its admission by the other.’ [See also 68 C. J. S. § 35, p. 50.]
Many cases supporting, but none contrary to, the text appear in the footnotes.
If then only those having interest in the property may bring a suit for partition, it logically follows that it is necessary that the plaintiff allege that he holds title to an interest in the property, and such we find to be the universal rule, which is stated at 47 Corpus Juris, p. 403, as follows: ‘ Since only those having title are entitled to partition either in a court of law or equity and the title must be to an undivided interest in the land, it is necessary for the bill, complaint, or petition to allege title in plaintiff, and that such title is to an undivided interest in the lands sought to be partitioned.’ ” [See also 68 C. J. S. § 91 a.(l) p. 141.]
In the case of Sutton v. McClain, 193 Ark. 49, on a rehearing, at page 61, the court used this language:
“The trial court had no jurisdiction to make the order of partition. It is only where lands are held in joint tenancy, in common, or in coparcenary that partition may be had and not then where it appears the partition will result in prejudice to the owner. In that state of case, the proper method is to order a sale of the property with division of the proceeds to those entitled thereto. Section 8091, Crawford & Moses’ Digest. This is but a restatement of the common-law rule. 47 C. J. 295, § 73 [68 C. J. S. § 56 a., p. 81]; London v. Overby, 40 Ark. 155. The judgment in favor of the several creditors did not create any interest in the lands in their favor so that it may be said they held in joint tenancy, in common, or in coparcenary, but created a lien only against the lands for the payment of their several judgments. Therefore, théy had no interest which would entitle them to partition. Roy v. Abraham, 207 Ala. 400, 92 So. 792, 25 A. L. R. 101; Fullerton v. Stortz Bros., 190 Ark. 198, 77 S. W. 2d 966. ”
In Dean v. Brown, 216 Ark. 761, 227 S. W. 2d 623, this court said:
“Our statute provides that immediately upon the intestate’s death, the title to real estate descends to the heirs at law, subject to the widow’s dower and the payment of debts. See § 61-101 Ark. Stats. 1947. The two sections (§ 62-411 and § 62-911, Ark. Stats. 1947), concerning lands as assets in the hands of the administrator, have been uniformly construed to mean that the title to the lands passes direct to the heirs on the death of the intestate, subject to the rights of the administrator to have the Probate Court sell the lands if such be necessary to pay the debts of the deceased.” [Footnote and citations omitted. Emphasis added.]
In the recent case of Cranna, Administrator v. Long, 225 Ark. 153, 279 S. W. 2d 828, at page 155, there is found the following:
“II. Sufficiency of the Complaint to Cancel the Deed. The administrator was the only plaintiff; the deceased had died intestate; and there was no allegation that the land was necessary to pay debts or expenses of administration. Prior to Act 140 of 1949 (the Probate Code), § 66 of Pope’s Digest was the governing Statute and said: ‘Lands shall be assets in the hands of the executor or administrator, and shall be deemed in their possession and subject to their control for the payment of debts.’ § 94 of the Probate Code (as now found in § 62-2401, Ark. Stats. ) says: * * real property shall be an asset in the hands of the personal representative when so directed by the will, or when and if necessary for the payment of debts, or expenses of administration.’ The quoted language of the Probate Code was not designed to make the administrator automatically entitled to the real estate of a deceased intestate. The quoted language of the Probate Code continues the rationale of our cases decided under § 66 of Pope’s Digest; and these cases hold that the legal title of an intestate’s land, upon his death, descends and vests in his heirs at law, subject to the widow’s dower and the payment of debts through his administrator. See Stewart v. Smiley, 46 Ark. 373; Jones v. Jones, 107 Ark. 402, 155 S. W. 117; and Mayo v. Bank of Marvell, 188 Ark. 330, 65 S. W. 2d 549. Sec 62-2701, Ark. Stats., in abolishing the priority between personal property and real property for the payments of the debts of the deceased, applies after it has been determined that the lands are necessary for the payment of debts. That section does not change the long established rule of our cases, as above cited.”
Not only is this the holding in the various decisions on this point in this state, but it seems to be held generally that the executor or administrator of an estate, aside from statute, has not such an interest in the real estate of the deceased as will entitle him to institute and maintain partition proceedings. In holding partition proceedings to be void, the Missouri Court, in Throckmorton v. Pence, 121 Mo. 50, 25 S. W. 843, not only said that an administrator has no interest in the lands of his intestate which would authorize him to prosecute such a suit, but further referred to a statute which authorized tenants in common to petition for partition and declared that no where in that statute could be found any point for making an administrator either plaintiff or defendant in such a suit.
In the case of Phillips v. Dorris, 56 Neb. 293, 76 N. W. 555, the Nebraska Court held that giving an administrator right of possession to real estate until the estate is settled was not investing him with any interest in the realty.
The dictum that an action for partition could not be maintained by an administrator, since he had no possession of the land, nor any interest therein except in connection with possible liens for the payment of decedent’s debts, and that his affirmative remedy in case of necessity was by proceedings to sell for debts, was expressed in Barton v. Reynolds, 142 N. Y. Supp. 895, where the court declared that an action for partition was essentially one between joint owners for division of their property between them. In the case of Romero v. Rader, 146 La. 964, 84 So. 221, a partition of land was annulled upon the ground that the administrator of a succession had no right to demand a partition since such a suit could only be maintained by one or some of the owners of the land.
It thus appears clear that the administrator was without right or authority to bring or maintain this suit and had this matter been brought to the attention of the learned Chancellor, he would have no doubt dismissed this action.
This cause, therefore, is reversed and dismissed at the cost of the appellee. It appears, however, from the record before us that the intervention of Block against some of the heirs states a cause of action against them. This dismissal does not prejudice the bringing of an appropriate action by this intervenor and if there be others who have claims for services in behalf of the heirs, such claims may be prosecuted in other actions. It is so ordered.
The section reierenees herein are to those in the Cumulative Pocket Supplement to Ark. Stats. | [
-32,
109,
-16,
44,
-72,
-46,
42,
-72,
82,
-127,
-12,
83,
107,
-55,
80,
45,
35,
-17,
-31,
105,
-127,
-73,
119,
2,
66,
-13,
-7,
-60,
-73,
-39,
-28,
-41,
69,
32,
74,
21,
-62,
-62,
-59,
92,
-98,
73,
-54,
36,
-51,
114,
52,
47,
-42,
15,
117,
-97,
-77,
41,
54,
75,
108,
45,
89,
-83,
24,
42,
-86,
77,
-17,
31,
0,
4,
-102,
1,
-56,
74,
-104,
55,
-112,
-24,
51,
38,
2,
116,
75,
89,
12,
102,
-124,
2,
-115,
-17,
-96,
10,
6,
-70,
-107,
-121,
-120,
73,
-47,
74,
-107,
-107,
121,
80,
3,
-12,
-14,
-44,
28,
108,
-19,
-114,
-42,
-111,
93,
122,
-104,
11,
-53,
79,
114,
117,
-119,
-62,
117,
70,
56,
-101,
-114,
93
] |
BaTTeE, J.
According to the abstract of appellant, which is not controverted by the appellee, the facts ;in this case are, in part, as follows:
“On the 9th of January, 1885, H. E). Collum executed his note to T. M. E)vart, treasurer of Scott county, for the sum of one hundred dollars, payable one year after date, with 10 per cent, interest, with J. O. A. Sullivan as his surety. The money for which the note was given was part of the sixteenth section school fund, and was loaned as directed by section 6288 of Mansfield’s Digest. On the same day (January 9th, 1885), and at the same time, Collum, in order to better secure the payment of the note, and in order to comply with the law, executed his mortgage to the treasurer for the following described real estate: Beginning at the SW. corner of a certain lot of land owned by William B. Turman, immediately south of the town of Waldron, running thence south 45 yards; thence east 70 yards; thence north 45 yards ; thence west 70 yards to the beginning.
“ Although the mortgage was executed and delivered to the treasurer on the 9th day of January, as stated, he failed and refused to have the same recorded, or to file the same for record, until the 25th day of March following.
“On the 17th day of March, 1885, H. E). Collum executed to George H. Lyman a mortgage on the same property, for the expressed consideration of five hundred dollars. This mortgage was filed for record on the 23rd day of March, 1885, two days previous to the filing' of the mortgage executed by Collum to the county treasurer.
“At the maturity of the second mortgage the land was sold to Green, in accordance with the terms of the mortgage, for the sum of five hundred and seventy-five dollars, that being the amount of interest and principal.”
The value of the property mortgaged to the county treasurer greatly exceeded the amount due on the note of Collum and Sullivan.
At the commencement of this action Collum was insolvent, and a non-resident of this State.
A decree was rendered by the court below, in chancery sitting, in favor of the plaintiff, the appellee, against Sullivan, the appellant, for the full amount of the Collum note, and Sullivan appealed.
When Collum executed the mortgage to secure the note executed by him, as principal, and Sullivan, as surety, it was the duty of the county treasurer to file the same for record, in order to preserve the security which he had thereby acquired. Having failed to do so until some time after its execution, and until it had become worthless as a security by reason of a second mortgage being filed prior to it, he should suffer the loss occasioned thereby; and Sullivan should be exonerated from all liability to pay the note, the value of the land mortgaged' exceeding the amount due on the same. Grisard v. Hinson, 50 Ark. 229; Hubbard v. Pace, 34 Ark. 80; Burr v. Boyer, 2 Neb. 265; Wulff v. Jay, 7 Q. B. 756; Straton v. Rastall, 2 Durn. & East, 366; Teaff v. Ross, 1 Ohio St. 469; Capel v. Butler, 2 Sim. & Stu. 457; 2 Brandt on Suretyship and Guaranty (2nd Ed.), sec. 445.
The decree of the court below is, therefore, reversed, and the complaint is dismissed. | [
-78,
-20,
-108,
-82,
-38,
-32,
42,
-102,
91,
-95,
-95,
83,
-23,
-36,
0,
41,
-26,
57,
-11,
120,
68,
-78,
55,
65,
-46,
-77,
-59,
-43,
-75,
-23,
-28,
-41,
92,
48,
-54,
-99,
-26,
-128,
-63,
-48,
14,
-127,
-71,
100,
-40,
-48,
48,
105,
126,
14,
53,
-113,
-13,
42,
29,
107,
73,
46,
89,
-67,
64,
-7,
-114,
21,
111,
71,
49,
-9,
-104,
65,
-56,
-88,
-104,
49,
1,
-8,
118,
-74,
-122,
84,
69,
25,
8,
54,
102,
48,
-27,
-17,
-72,
-119,
47,
-10,
13,
-121,
-109,
-40,
114,
40,
-66,
-99,
124,
82,
7,
-10,
-25,
-115,
28,
108,
-124,
-49,
-106,
-109,
13,
-20,
-102,
3,
-33,
15,
48,
65,
-50,
-30,
125,
71,
123,
-101,
-98,
-7
] |
Ed. F. McFaddin, Associate Justice.
The question presented is whether there has been an arbitrary and excessive taking of lands in an eminent domain proceeding.
In September, 1960, the appellee, Ouachita Creek Watershed District (hereinafter called “District”) filed its complaint in the Perry Circuit Court seeking to acquire by eminent domain certain lands for the construction site of dams, etc. in its watershed construction project. The complaint alleged in part:
“That the said District was organized on the 5th day of November, 1958 by an order, of the Chancery Court of Perry County, Arkansas, under authority of the Arkansas Irrigation, Drainage and Watershed Improvement Act No. 329 of the Acts of Arkansas of 1949, as amended (Section 21-901 to 21-924 of the Statutes of Arkansas). That said District was organized for the purpose of preventing flood water, sediment damage and soil erosion to the lands embraced within the said District, and in cooperation with the Federal Government under the Watershed Protection and Flood Project Act (Public Law 566 of the 83rd Congress). That this action is a Civil Action wherein the District seems to exercise the power of eminent domain and for ascertainment and award of just compensation to the owners and parties at interest in the lands sought to be condemned. That this action is brought as authorized by Section 29-912 of the Statutes of Arkansas and under the provisions of Section 35-1101 to Section 35-1113 of the Statutes of Arkansas. THAT the use for which the property is to be taken is for the construction and operation of dams, rights-of-way, drainage ditches and other works of improvement in connection with the said Watershed District, and for the use and benefit of the land owners within said District and for the public in general in the prevention of floods and soil erosion and other purposes; and that the lands sought to be condemned are necessary for the use thereof and for the completion of the proposed works of improvement in cooperation with the Federal Government.”
The appellant McKinley Gray, for himself and other landowners, filed answer and cross-complaint. He admitted the organization of the District but claimed that the taking of some of the lands was arbitrary and excessive. The Perry Circuit Court temporarily suspended all the proceedings in the condemnation case; and transferred to the Chancery Court, for determination, the issue as to whether there was an arbitrary and excessive taking of lands by the District. The Chancery Court heard the issue transferred to it and entered its decree, the germane portion of which recites:
“Both the plaintiff district and the defendants have introduced testimony of a technical nature concerning the necessity of the said district to construct the works of improvement on the lands involved, and the court finds from said testimony that the lands involved are necessary for the plans of improvement for the district; the court further finds that the said district has the authority to exercise the power of eminent domain and to condemn lands found to be necessary for the improvements to be constructed for the benefit of the district . . .”
Prom the Chancery Decree there is this appeal, and the appellants list as the only point presented:
“The Court’s holding, that the lands sought to be condemned herein were necessary for the fulfillment of the purposes of the watershed district, was erroneous as against the preponderance of the evidence.”
When the appellant alleged that the taking was arbitrary and excessive, there was thus presented an issue which was cognizable in chancery. Burton v. Ward, 218 Ark. 253, 236 S. W. 2d 65. But the making of such an allegation is much easier than the offering of sufficient evidence to sustain it. The State, by conferring on the District the power of eminent domain, necessarily left largely to the discretion of the District the location and area of the land to be taken. And one seeking to show that the taking has been arbitrary or excessive shoulders a heavy burden of proof in the attempt to persuade the Court to overrule the District’s judgment. Burford v. Upton, 232 Ark. 456, 338 S. W. 2d 929; Woolard v. State Hwy. Comm., 220 Ark. 731, 249 S. W. 2d 564; State Game & Fish Comm. v. Hornaday, 219 Ark. 184, 242 S. W. 2d 342; State Hwy. Comm. v. Saline County, 205 Ark. 860, 171 S. W. 2d 60; and Patterson Orchard Co. v. S. W. Ark. Util. Corp., 179 Ark. 1029, 18 S. W. 2d 1028.
In State Highway Comm. v. Saline County, supra, the State Highway Commission was condemning a right-of-way through certain lands, and we said of the Highway Commission:
“Since it had this power it also had discretion to determine the route and the location of the right-of-way. ‘ A broad discretion is necessarily vested in those to whom the power of eminent domain is delegated, in determining what property is necessary for the public purpose, with respect to the particular route, line, or location of the proposed work or improvement; and the general rule is that the courts will not disturb their action in the absence of fraud, bad faith, or gross abuse of discretion. The landowner may not object merely because some other location might have been made or some other property obtained which would have been suitable for the purpose. ’ 18 Am. Jur. 735. In 29 Corpus Juris Secundum (Eminent Domain § 91), page 886, it is said: ‘Under a delegation of the power of eminent domain the grantee of the power, in the absence of legislative restriction, may determine the location and route of the improvement and of the land to be taken for it, and such determination will not be interfered with by the courts if it is made in good faith and is not capricious or wantonly injurious, or in some respects beyond the privilege conferred by the charter or statute.’ Justice Butler, speaking for the court in the case of Patterson Orchard Co. v. Southwest Arkansas Utilities Corporation, 179 Ark. 1029, 18 S. W. 2d 1028, 65 A. L. R. 1446, said: ‘While the Legislature has said that a right of way must be necessary for the exercise of the rights of the corporation taking it, the question of whether or not there was a necessity must necessarily be left largely to the discretion of the corpo ration itself, and, unless it clearly appears that such discretion has been abused and its action arbitrary and to the unnecessary damage of property owners, the exercise of that discretion will not be disturbed.’ ”
Did the appellants discharge the heavy burden imposed upon them in this case? That is, did they show that the taking was arbitrary and excessive? They offered the testimony of a capable engineer who testified that in his opinion the dams “2” and “3”, to be located on the lands of appellants in the northernmost end of the District, were unnecessary, and that the same result could be obtained by deepening the main ditch one foot. To overcome this testimony, the appellee District introduced the Hydraulic Engineer of the Soil Conservation Service of the United States Department of Agriculture and also the Assistant State Conservationist of the Soil Conservation Service. These witnesses for the defendant testified that the work plan of the district was correct. There was introduced in evidence this plan for watershed protection, flood prevention, and agricultural water management of the Ouachita Creek Watershed; and it is a most enlightening prospectus. Five technicians spent months going over the ground and preparing the booklet for this Ouachita Creek Watershed, and the result of their efforts and labors is the plan that was introduced. They used mathematical formulas as to the number of acres, the rainfall, the drainage problems, etc., etc., and concluded that these dams “2” and “3”, on the lands here involved, were required for the safe operation of the watershed project. The engineer for the appellants was just as capable as the engineers for the District; end it is just a difference of opinion between the engineers as to whether the deepening of the main ditch is better than the location of the two uppermost dams. The situation was very well summed up in the question to and answer made by the engineer for the appellants:
“Q. And then you have taken this data that has been worked up by the Soil Conservation Service and put in this form and yon — it is just a difference of opinion, is that right?
A. A difference of opinion as to the requirements: the Soil Conservation Service seems to think that Dams No. 2 and 3 are required; in my opinion they are not.”
With the evidence thus in equipoise, the Chancery Court held that the objecting landowners had failed to establish by the required quantum of proof that there was an arbitrary and excessive taking. On appeal, we cannot say that the decision of the Chancellor was against the preponderance of the evidence. When honest and capable men may differ as to whether to build a dam or deepen a channel, it is a matter in the engineering field; and, on this evidence, there is certainly no-showing that the taking was excessive or arbitrary. With the District acting on the advice of its engineers and advisers, certainly the District did not abuse its discretion in following the work plan developed over many months by competent persons.
The decree is affirmed.
See § 21-912 Ark. Stats. | [
117,
-18,
-4,
108,
-86,
-24,
56,
-128,
75,
-85,
-27,
83,
-81,
-117,
12,
81,
-29,
-81,
117,
121,
-57,
-74,
83,
-46,
-110,
-13,
-7,
71,
58,
77,
-26,
87,
76,
1,
-62,
85,
66,
-96,
-17,
-36,
-122,
2,
-119,
73,
-63,
65,
60,
107,
82,
79,
101,
29,
-13,
-83,
49,
-61,
109,
46,
-51,
44,
65,
58,
-70,
12,
95,
7,
33,
-92,
-120,
-127,
-56,
74,
-112,
50,
-128,
-24,
115,
38,
-122,
101,
5,
-101,
-120,
96,
98,
1,
-84,
-49,
-72,
-120,
15,
-1,
-115,
-90,
-122,
24,
74,
-118,
-105,
-100,
125,
22,
15,
124,
-18,
-123,
95,
108,
-113,
-90,
-44,
-89,
-114,
-4,
-100,
3,
-5,
-125,
48,
113,
-113,
-26,
92,
69,
50,
-97,
-122,
-15
] |
Jim Johnson, Associate Justice.
This is an action in tort. On April 22, 1960, Mack Farlin Land drove an International Harvester truck, the property of his father, Cyril Land, to the International Harvester Company shop at 190 East 6th Street in Little Bock for the purpose of having certain additional equipment installed.
John C. Bergman, assistant shop Manager for International Harvester Company, was advised by Mack Farlin Land that the gear shift lever on the truck was difficult to operate. After inspecting and manipulating the gear shift lever, Mr. Bergman raised the cab of the truck in order to make an additional check.
On this particular model truck, the cab is elevated by means of two pistons that are powered by the use of hydraulic pressure. A hydraulic pump, or jack, is located on the frame of the truck, and the truck is equipped with a handle which is inserted into the proper slot for elevating the cab. There is a valve located at, or near, the pump to control the flow of hydraulic fluid. Pictures of the cab as elevated aids an understanding.
The truck is equipped with a plate that may be used to hold the cab in the proper elevated position after it is elevated. The mechanism is designed with two slots in the shell of the cylinder so that the plate may be inserted in either of the slots and, depending upon which slot is used, the cab is held in either a fully elevated or partially elevated position.
As John C. Bergman was elevating the cab by use of the jack, he observed that it operated slowly, and he advised Mack Farlin Land that the mechanism needed additional hydraulic fluid. After being told by Land. that there was a leak in a hydraulic line, Bergman was having the leak repaired. After Bergman had elevated the cab as high as it would go with the reduced hydraulic pressure, the plate was inserted in a slot in the cylinder shell. There is a dispute in the evidence as to whether the plate was inserted by Bergman or Land. One of the International Harvester mechanics, W. J. Gartrell, proceeded with the repair of the fitting that was permitting the leakage of hydraulic fluid. Additional fluid escaped during the course of the repairs. After the repairs were completed, Gartrell secured additional hydraulic fluid to add to the system and proceeded toward the truck, accompanied by Mack Farlin Land and one, Glynn Land, a cousin of Mack Farlin Land. Gartrell detoured to his workbench to open the can of hydraulic fluid, and Mack and Glynn Land proceeded directly to the truck. Mack Farlin Land was in a position with his head under the upraised cab of the truck, when the truck cab fell and pinned his head against the frame of the truck, causing his death almost instantly. Suit was filed by appellee, administrator of the estate of Mack Farlin Land, deceased, on behalf of himself, his wife, and the estate, in the Circuit Court of Faulkner County, against John C. Bergman and appellant, International Harvester Company. Evidence was presented at the trial of the deep grief endured by the parents of Mack Farlin as a result of his tragic death. Evidence was also presented that during his lifetime he consistently contributed money to the support of his parents, that he did most of the work on their small farm, that both parents were in bad health and that they anticipated that he would continue to assist them financially, if he had lived. A verdict was rendered against International Harvester Company in the sum of $30,000. A verdict was rendered in favor of John C. Bergman, International Shop Foreman, who was supervising the work on the truck at the time of the fatality.
When the verdict of the jury was first returned into court, the trial judge, upon examination, ascertained that the jury had only filled in the amount of $30,000 in the blank providing for the amount to be recovered on behalf of the estate. The'other blanks were not filled in. The only damage sustained or claimed by the estate was $1,523, the amount of the funeral bill, as there was no indication of conscious pain and suffering. The trial judge did not accept this verdict but called counsel into chambers and without revealing the verdict discussed the matter fully with them. Counsel for the appellees suggested that the jury be sent back for further deliberation but counsel for the appellant made the following suggestion:
“I have no objection — I don’t think I would have any grounds for objection — but I will state to the court that I have no objection to the Court attempting to ascertain what their intention was, and then aiding the jury in rendering a verdict that conforms to their intention. ’ ’
After a discussion, this suggestion was adopted by the court, counsel for the appellees having assented. The trial judge returned to the court room and carefully questioned the jury to ascertain the intentions. The true verdict of the jury was determined, whereupon, the trial court entered judgment of $1,523 on behalf of the estate and $14,238.50 each for the use and benefit of Mr. and Mrs. Land against International Harvester Company. Judgment was entered for the defendant John C. Bergman. The International Harvester Company has appealed from the judgment entered against it.
As one of its points relied on for reversal, appellant strenuously urges that the trial court erred in its determination of the jury verdict and contends that the court should have declared a mistrial, or in the alternative the judgment should have been limited to the $1,523 funeral expenses claimed by the estate. From the record it is clear that the trial court handled the determination competently and fairly and that the verdict fairly rendered reflected the true intention of the jury. Particularly is this true in view of the above quoted suggestion made by appellant’s counsel which was followed by the court. See Trailmobile v. Robinson, 227 Ark. 915, 302 S. W. 2d 786.
For reversal appellant further urges that “in view of the judgment in favor of John C. Bergman, the evidence will not support a judgment against appellant” and that the judgment rendered is excessive. The appellees predicated their cause of action against International on two theories. One theory sought to charge International with the alleged negligence of its employee J. C. Bergman, a co-defendant below. The jury, however, found in favor of Bergman, and in so doing relieved International of responsibility on respondeat superior. Appellees, however, in the alternative, alleged that International was responsible in tort for the death of Mack Land on a “products liability” theory, that is, for defective design or manufacture of the truck and the plate designed for holding the cab in the elevated position. The principal question in this case, therefore, is whether there is substantial evidence of such defective manufacture to sustain the verdict of the jury against International. We hold that such evidence has been presented by the appellees.
It is undisputed that the truck was so manufactured that when the cab was elevated by its hydraulic jack, the floor of the cab would catch and hang precariously on the road ranger bracket, a maneuverable device attached to the gear shift lever by the manufacturer. In other words, the opening in the floor of the cab was fashioned so narrowly that it would not accommodate the free passage of the floor past the road ranger bracket. When this happened, as it frequently did on this model truck, the plate or safety mechanism, provided to keep the cab from falling on those in the vicinity of the truck, was rendered completely nugatory. This device consisted of a steel plate, inserted in a slot cut into the piston housing of the hydraulic jack. The base of the piston was supposed to rest flush against the metal plate and, if the piston was in this position, the plate was sufficient to hold the eab in its raised position. However, since the floor of the cab, because of the narrow width of the opening, could not pass free of the road ranger bracket and instead caught and hung on it, as it frequently did and as the jury could have found it did on this occasion, the piston was suspended several inches from the steel plate. A drop of the cab from its precarious position on the road ranger bracket developed great force, sufficient to shear through the safety plate and allow the cab to fall unimpeded. In the absence of a showing that the road ranger bracket had been adjusted in a manner or position contrary to that for which it was manufactured, there was ample evidence presented from which the jury could have found here that the cab hung for a time on the road ranger bracket, slipped from this position, the piston sheared through the safety plate, the cab fell completely down and crushed the unsuspecting victim, Mack Land, who was standing by the side of the truck and leaning over so that his head was crushed by the cab.
The “products liability” doctrine is now common in our courts. The development of this type of litigation was inhibited for almost a century by the old English case of Winterbottom, v. Wright, 10 Mees. & W. 109, 152 Eng. Rep. 402, decided in 1842 and requiring privity of contract as a basis for such a suit. The repudiation of Winterbottom in the famous case of McPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. n050, and the virtually unanimous acceptance of Judge Cardozo’s reasoning by the American authorities has brought a large number of “products liability” cases to the courts. See, for example, Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S. W. 2d 820, discussed in great detail in Harper & James, The Law of Torts, Vol. 2, Sec. 28.77, pp 1592-3. See also Ford Motor Co. v. Fish, 106 L. Rep. 743, 335 S. W. 2d 713, 2d appeal, 108 L. Rep. 47, 346 S. W. 2d 469, and Judge Miller’s discussion of the Arkansas cases in Green v. Equitable Powder Mfg. Co., 94 F. Supp. 126, 95 F. Supp. 127. Also see article on “products liability” in 28 Fordham Law Review, p. 776, which is reviewed in Law Review Digest No. 10, page 72. In Chapter XXVIII of Harper and James, The Law of Torts, Vol. 2, pp 1534-69, entitled “Liability of Suppliers of Chattels” there is an excellent discussion of the duties owed by a manufacturer in the area of tort liability. These authorities point out on p. 1545 that “the existing law of negligence demands this duty of care where others are threatened by want of a feasible safety device wherever the foreseeable danger to them is unreasonable.” On p. 1541 of the same chapter it is said:
“The maker of an article for sale or use by others must use reasonable care and skill in designing it and providing specifications for it so that it is reasonably safe for the purposes for which it is intended, and for other uses which are forseeably probably. And a person who undertakes such manufacturing will be held to the skill of expert in that business and to an expert’s knowledge of the arts, materials, and processes. Thus he must keep reasonably abreast of scientific knowledge and discoveries touching his product and of techniques and devices used by practical men in his trade. He may also be required to make tests to determine the propensities and dangers of his product.”
With regard to proving negligence in these cases, Harper and James state in the same Chapter on p. 1564:
“Where design or specifications are involved it usually appears or is admitted that the condition which proved injurious was created intentionally. If, then, the condition is also shown to be unreasonably dangerous, ap inference of negligence is usually warranted.”
Prosser states in the blacktype summary heading to Chapter 17 of his well known text, The Law of Torts, 2d Ed. p. 497:
“It is now generally agreed that a seller, or other supplier of chattels for a consideration, may be liable for harm to the person or property of a third person who may be expected to be in the vicinity of the chattel’s probably use, if he has failed to exercise reasonable care to make the chattel safe for the nse for which it is supplied. ’ ’
Under our decisions it was in the province of the jury in this case to determine whether the propensity of the floor of the truck cab to hang on the road ranger bracket, and thus render the safety plate ineffective, created an unreasonable danger to others, which might have been prevented by the exercise of ordinary care. Ford Motor Co. v. Fish, supra. A recent California ease, Brooks v. Allis Chalmers Mfg. Co., 163 Cal. App. 2d 410, 329 p. 2d 575 is factually similar to the case at bar. The plaintiff’s decedent was killed when a boom on a crane fell. The plaintiff contended that the crane and boom were so constructed that the boom brake handle “would become stuck and when in such position the brake handle could not be depressed to increase the brake pressure.” The crane and boom contained a safety device called a “boom dog” which was supposed to keep the boom from falling. “There was evidence that if the brake was not working properly, and the dog was on the point of the tooth, the boom could come down by jarring.” The California Court held that the question of the manufacturer’s negligence was for the jury. Other cases involving the failure of safety devices are Edison v. Lewis Mfg. Co., 168 Cal. App. 2d 429, 336 P. 2d 286; Stupp v. Fred J. Swaine Mfg. Co., Missouri 229 S. W. 2d 681; and Carpini v. Pittsburg and Weirton Bus Co., et al, 216 F. 2d 404. These cases hold that it is for the jury to decide whether the manufacturer took the proper precautions to protect the users of his chattels from harm or whether, by his design and manufacture, he subjected such users to an unreasonable risk of harm. The evidence of the plaintiff detailed above, which on appeal must be viewed in its strongest light, was sufficient to take this case to the jury. As to the amount of the verdict for the death of this son, we do not find it so shocking as to require a remittitur or reversal. It follows, therefore, that the judgment in all respects is- affirmed | [
112,
123,
88,
-51,
10,
-30,
40,
26,
81,
-17,
118,
22,
-49,
-38,
13,
1,
-9,
127,
81,
-77,
-75,
-93,
83,
-110,
-61,
-13,
-7,
-37,
61,
75,
36,
125,
77,
16,
10,
85,
-32,
-120,
-59,
92,
-60,
6,
59,
-22,
-103,
32,
50,
-22,
4,
79,
85,
-113,
83,
46,
29,
-61,
45,
32,
-1,
-84,
-39,
-16,
-21,
4,
95,
18,
-96,
0,
-108,
33,
120,
30,
-112,
-79,
40,
-8,
123,
-74,
-127,
-28,
35,
-115,
9,
66,
98,
-110,
77,
-113,
104,
-72,
15,
-117,
15,
-115,
56,
24,
26,
-85,
-65,
-108,
-110,
50,
20,
124,
122,
69,
31,
72,
6,
-125,
-76,
-112,
-49,
18,
-100,
11,
-17,
-121,
48,
97,
-55,
-78,
93,
6,
122,
23,
-57,
-70
] |
Paul Ward, Associate Justice.
Appellant, L. C. Poole (a colored man), was convicted on a charge of assault with intent to rape a fourteen year old white girl and sentenced to serve the minimum term of three years in the penitentiary. On appeal appellant urges two points for a reversal, viz.: (1) Insufficiency of the evidence, and (2) the court’s refusal to give a certain instruction requested by him.
1. This point will be considered under two subheads, viz.: (a) Insufficiency of evidence to show appellant was the man who made the assault, and (b) insufficiency of evidence to show the specific intent to rape.
(a) The evidence shows (and appellant makes no attempt to deny) that a colored man assaulted the girl at approximately 6:15 Saturday evening, January 28, 1961 in Forrest City. It is also undisputed that the girl gave a correct account of the assault. Although the testimony raises grave doubts, we think, that appellant is the person who committed the assault, we do find substantial evidence from which the jury could find he is. Therefore, since we are reversing the judgment of conviction on point (b), we will set out only such testimony as relates to that point.
The prosecuting witness testified in substance, as follows:
I am 14 and I have lived in Forrest City since I was born. I left my mother at Kimball’s and went up the street to go to my brother’s house; I heard someone running and when I turned my head, he grabbed me by the throat, putting one arm around my neck, and I pulled his hand off my mouth and screamed; He said he would kill me if I didn’t stop screaming; He drug me under the viaduct; I was not screaming when Ruben Homewood came, because he had put his hand over my mouth; “When he saw Ruben Homewood coming, he turned and ran on the side of the viaduct and Ruben went on behind him. Outside of the defendant having his hand on my mouth and throat, no other part of my body was touched. I am positive of that, just my mouth and throat were touched.
The above is all of the evidence tending in any way to show the intent of appellant to rape.
(b) Undoubtedly the girl’s testimony (and we accept it as true) raises a strong suspicion that appellant intended to rape her, and this suspicion is not weakened by the fact that he is colored and she is white. However, under our system of jurisprudence, no one can be convicted on suspicion alone. In a case of this type the essence of the charge is “intent” and it must be proved by evidence beyond a reasonable doubt, even though it may be proved by circumstances surrounding the assault. Therefore, in line with our judicial system and to avoid a miscarriage of justice, our Court has clearly pronounced certain safeguards that we are bound to observe. Such safeguards are clearly recognizable in our decisions referred to hereafter.
Anderson v. State, 77 Ark. 37, 90 S. W. 846. A girl 10 years old was waiting at a railroad station when Anderson, a stranger, accosted her and told her he was to look after her; he took her behind the depot and offered her $10; he offered her a present, and asked her to go see some children; he kissed her and tried to pnll her into an alley. The girl began to cry and Anderson left. The trial court convicted Anderson for assault with intent to rape. In reversing the conviction this Court, among other things, said: “. . . the unlawful act must be the beginning or a part of the act to injure, of the perpetration of the crime, and not [a part] of preparation to commit some contemplated crime”. To illustrate what the Court meant, it pointed out “Anderson never attempted to have sexual intercourse with Pearl Bond by force or consent. He never asked her for permission; never put his own person in condition or position for such an act; never attempted to raise her clothes, or to throw her down, or to do acts without which sexual intercourse could not be accomplished.” The analogy and application of that case to this case is too obvious to require comment.
Paul v. State, 99 Ark. 558, 139 S. W. 287. Here appellant entered the home of a housewife under the pretense of wanting to buy some milk; when she entered the dining room appellant “. . . rushed up, took hold of her arm and asked her if she would not like to make a half-dollar easy”. She broke loose and ran out of the house screaming. Appellant was convicted of assault with intent to rape. Although the assault there differed from the assault here and although some circumstances there are not present here, this Court, in reversing the case, did not rely on them but placed its decision squarely on the reasoning set forth in the Anderson case, supra, from which it quoted much of what we have quoted heretofore. The Court did say, as we say here, that the evidence was not sufficient to sustain a conviction of assault with intent to rape, “. . . but that it will sustain a judgment for an assault and battery. . . .”
Douglass v. State, 105 Ark. 218, 150 S. W. 860. Appellant entered the bedroom of the prosecuting witness at night; he was on his knees beside the bed holding her hand; he had a gun and told her to keep quiet or he would kill her; he said what he was there for; he put his hands on her. His conviction for assault with intent to rape was reversed on appeal. Again there were some other facts not present in the case before us, but again this Court did not rely on them to reverse the case. Instead the Court cited and followed the reasoning in the Anderson and Paul cases, supra, stating:
“Undoubtedly, if he had drawn the pistol for the purpose of inflicting death upon the assaulted girl, the crime of assault with intent to kill would have been complete, even though he desisted from carrying out his intention; and if he had placed his hand upon the girl as a part of the act of having sexual intercourse and with intent to secure carnal intercourse with her, this would have completed the offense of assault to commit rape. But, according to this testimony, his taking hold of the hand of the girl for the purpose of waking her up and the drawing of the pistol on her were merely a part of the preparation for the act, and not an overt attempt to commit the act itself.”
There the Court also, in reversing the case, said: “The evidence may be sufficient to justify a conviction of a lower degree of assault, and for that reason the cause is remanded for a new trial”.
Wills v. State, 193 Ark. 182, 98 S. W. 2d 72. There the prosecuting witness was going down a road when appellant grabbed her, put his arms around her; he tore her shirt, invited her to go home with him, and a little later he slung her in a ditch and hit her; she began to “holler” and a Mr. Fleming came down to where they were. The girl did not say whether appellant tried to rape her and she didn’t say he did not try. The trial court convicted appellant for assault with intent to rape, and this Court reversed. In doing so the Court, among other things, approved this statement relative to what is necessary to prove the intent to rape: “. . . the intent is to be ascertained from the commission of some act or acts at the time or during the progress of the assault”. (Emphasis added.)
It appears to us that the phrase above emphasized clearly pinpoints the essence of this Court’s holdings in the cases previously cited. That is, the assault itself is not sufficient to show intent in cases of this type, but there must be some act or words in connection with the assault to show the intent of the assault. It is conceded, or must be conceded, that there were no such acts or words in connection with the assault in the case under consideration. Such being the situation the jury had to arrive at the intent of appellant by speculation or conjecture. The Court in the Wills case said: “Speculation and conjecture cannot be substituted for affirmative facts and circumstances. ’ ’
2. Since, for reasons already set out above, we are reversing the judgment of the trial court, we deem it unnecessary to discuss fully the court’s refusal to instruct on other offenses. Appellant asked the court to instruct on simple assault, and the court refused to do so. In this the court was correct because, in our opinion, the facts show appellant (if he is the man who committed the assault) to be guilty of some higher degree of assault than mere simple assault.
As shown by the authorities cited heretofore; we have the power, upon reversal, to remand the cause for another trial, and we have chosen to do so in this instance. In this connection see also: Reed v. State, 97 Ark. 156, 133 S. W. 604; Johnson v. State, 210 Ark. 881, 197 S. W. 2d 936; Grigson and Gibson v. State, 221 Ark. 14, 251 S. W. 2d 1021; and Anderson v. State, 226 Ark. 498, 290 S. W. 2d 846.
The judgment of the trial court is accordingly reversed, and the cause is remanded for a new trial.
George Rose Smith, Robinson, and Bohlinger, JJ., dissent. | [
48,
-18,
-36,
-97,
11,
-27,
10,
56,
-48,
-94,
117,
115,
45,
-50,
8,
122,
-81,
127,
84,
105,
-44,
-73,
23,
107,
-78,
-45,
123,
-43,
-73,
-49,
-10,
-11,
12,
96,
90,
-47,
98,
8,
-31,
92,
-114,
-97,
-23,
-32,
-104,
-112,
32,
62,
92,
15,
49,
-98,
-14,
40,
20,
75,
9,
108,
75,
-65,
80,
48,
-126,
7,
-67,
52,
-95,
54,
-66,
39,
-8,
59,
-104,
48,
0,
120,
122,
-106,
-128,
116,
77,
-102,
-116,
32,
-30,
-127,
-31,
-118,
40,
-127,
63,
126,
-99,
-90,
24,
104,
64,
101,
-105,
-103,
100,
84,
14,
104,
-9,
-59,
81,
100,
-125,
-117,
-80,
-79,
-55,
40,
18,
57,
-13,
-67,
48,
113,
-49,
-30,
92,
69,
122,
-37,
-114,
-77
] |
Burn, C. J.,
(after stating the facts.) The gravamen of the complaint in this action, as in all actions of the kind, is that, by reason of the negligence of the master, the servant has suffered injuries for which damages are sought. This necessarily demands an inquiry into the relation of master and servant, and as b> the mutual obligations and duties, growing out of that relation, which they owe to each other.
There does not seem to be any real controversy in this case as to the character and quality of the “mangle,” the machine at which the plaintiff, as an employee of the defendant company, was called upon to work in the course of her employment. Therefore the duties and obligations which the law imposes upon the defendant, in respect to the plaintiff may be the more briefly stated thus: “It was its duty to exercise ordinary care in keeping the machine in reasonably good condition and repair, so that the dangers attendant upon working with it (if there were any) would not be increased unnecessarily.” The plaintiff, on the other hand, “assumed all the risks naturally attendant upon the employment and incident to the work she was engaged to perform.” The defendant was under obligations to use ordinary care and diligence in discovering latent defects in the machine, or in its position; and while this duty was not imposed upon the plaintiff, yet both were under obligations to observe patent defects, and give notice of. the same—the servant, that the master might remedy the defect; and the master, that the servant might thereby be the better protected. Extraordinary care is required of neither of them. All that may be said as to the degree of care to be exercised by the master, for instance, is that he should exercise ordinary care, and that only is he required to exercise, although it is said that ordinary care in one case may not be ordinary care in another. In general, then, ordinary care is that care which a prudent man usually exercises in the conduct of his own affairs, to be determined by the circumstances of each case. Vinton v. Schwab, 32 Vt. 614; Mich. Cent. R. Co. v. Coleman, 28 Mich. 449.
The principal objection of the defendant to the instructions given by the court below is to the second instruction given at the instance of the plaintiff, which seeks to define the relation existing between the parties, and the duties the one owes to the other, and lays down the rule by which the jury was to be governed in determining whether or not the charge of negligence was well founded, and thus a recovery might or might not be warranted. The instruction complained of is as follows, to-wit: “You are instructed that if the Park Hotel Company employed the plaintiff to work for it in its laundry, it assumed the duty to control its mangle in said laundry, and keep it, while she was at work at it, in a reasonably safe condition, so as not to unnecessarily enhance the dangers attendant upon the employment. That she assumed the natural risks of her employment, but did not assume risks arising from any negligence of the hotel company, if you find there was such in constructing defective machinery; and if the plaintiff received any injury caused by the defective condition of the machinery at which she was put to work, she is entitled to recover, unless the injury was the result of the contributory negligence of the plaintiff; and, upon the question of con tributory negligence, you are instructed that a servant or employee is not required to inspect the appurtenances of the business in which she is employed to see whether or not there are latent defects that render their use more -than ordinarily hazardous, but is only required to take notice of such defects or hazards as are obvious to the senses. The fact that she might have known of defects, if you find there were any, or that she had the means and opportunity of knowing of them, will not preclude her from recovery, unless she did in fact know of the defect, or in the exercise of ordinary care ought to have known of it. She was not bound to make an examination to find defects, but it was the duty of the Park Hotel Company to use ordinary care in finding them. She had the right to rely upon the judgment and discretion of the Park Hotel Company to provide her with machinery to work with that would not unnecessarily enhance the dangers attendant upon her employment.”
Much of this instruction, and we might say most of it, is abstractly correct, but it is the enunciation of a theory, especially in the first part of it, which may be the right one or the wrong one, accordingly as we construe its language. It will be observed that the jury were told that the defendant assumed the duty to control its “mangle” in its laundry, in the very act of employing the plaintiff to work for it in its laundry. That may have been, and doubtless was, a fact, but it was not the business of the court to declare to the jury what the facts were. There may be instances of such employment where the servant, and not the master, assumes control of the machinery. Besides, the word “control” is a broad term to use in such a connection. It may have meant, to the mind of the jury, that the defendant, by reason of this control, was to be held absolutely responsible for all defects that might arise in the. •course of the plaintiff’s work at the machine. The master is not supposed to be always present, either personally or otherwise, and therefore the assumption of .absolute duty to keep the machine in even a reasonably ■safe condition is not the burden the law imposes upon the master in such cases.
The defendant complained that by these instructions the court made actual conditions the test of defendant’s liability, while the law makes its conduct the test; reasoning therefrom that, as bad conditions may exist or arise in spite of the most careful conduct, it follows that •defendant was subjected to a false test, and thus deprived of a trial according to law. The master, says Mr. Wood, in his work on Master and Servant, section .329, “is not only bound, in the first instance, to use reasonable care in the selection of machinery and appliances, but also to exercise reasonable and proper watchfulness to see that it is kept in proper condition.” Again, the same author says: “The measure of the master’s duty is reasonable care, and this necessarily has relation to the parties, the business in which they .are engaged, and varies according to the exigencies which require vigilance and attention, conforming in .amount and degree to the circumstances under which it is to be exerted.” Mr. Bailey, in his work on Master’s Liability for Injuries to Servants (pages 2-4), says: “A •master is liable in damages, ordinarily, to his servant •who is injured through the master’s failure of duty towards him; negligence being nothing more nor less •than a failure of duty. Among the implied obligations ■resting upon the master are that he shall provide suitable means and appliances to enable the servant to do his work as safely as the hazards incident' to the employment will permit, etc.” And, continuing, he says: “In the performance of these duties, the master is bound to the exercise of reasonable and ordinary care, and such ■only. The degree of care required in each of these particulars is the same. The authorities are all agreed that the degree required to be exercised is that of ordinary care.”
Such is the doctrine of this court, uniformly expressed in all cases wherein the particular question has ■arisen, and where it has become necessary to particularly state the law. Thus in St. L. etc. Ry. Co. v. Harper, 44 Ark. 524; L. R. etc. Ry. Co. v. Duffey, 35 Ark. 602; Bauer v. St. L. etc. Ry. Co. 46 Ark. 388; St. L. etc. Ry. Co. v. Gaines, 46 Ark. 555; Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232. It has also been uniformly held by this court that a servant cannot recover of the master for an injury which the servant by reasonable ■care and attention could have prevented. In L. R. etc. Ry. Co. v. Leverett, 48 Ark. 344, an instruction very much like the one now under consideration was given at the instance of the plaintiff. Another, in some sense ■explaining or qualifying the first, was also given, and the court said: “Construing these instructions together, •appellant was not prejudiced by any of them.” This language, when taken by itself, may be construed as an Approval of the instruction in this case, which is almost identical in language with the one in that case, but it must be remembered that in that case there was little or no controversy as to the condition of the road-bed, for that was virtually admitted to be bad; but the controversy was as to the deceased’s waiver of defendant’s obligation to him by his acceptance of the employment with full knowledge of the condition of the place he was to work in. The instruction on this latter point was unobjectionable. Hence it was that the court, in that particular •state of case, could say the appellant was not prejudiced by these instructions when taken together. Certainly such language in such a connection could not mean that the first instruction was correct. It had rather the contrary meaning, for it was as if the court had said: “It is erroneous when standing alone, but, taken in its connection, and under the circumstances, it. is tolerated, since, notwithstanding its errors, it does no harm.” To substantiate this construction of the meaning of the court in that case, we have only to repeat what the court said immediately after in that connection: “In employing the deceased, the appellant assumed the duty of exercising reasonable care and prudence to provide him a safe place and tools to exercise the employment, and to maintain the place and tools in a reasonably safe condition.” The same may be said of the language of. the court in St. Louis etc. Railway v. Higgins, 53 Ark. 458. So, then, it is the conduct of the master that is the subject of the jury’s inquiry, and not the condition of the appliance with which the servant is employed to work; and the conduct of the master that will exonerate him from the charge of negligence is his exercise of mere ordinary care in respect to the use and keeping in repair of the appliance.
The instruction in question propounds another and radically different theory. It, in effect, directs the jury to find whether or not the appliance was in a reasonably safe condition at the time of the injury, and, if not, to find for plaintiff. What might have been a reasonably safe condition in the estimation of the jury is a question incapable of solution, and can never be answered, simply because the jury had no standard by which to determine such a fact, and were without power to fix one for themselves, and the court was as powerless to suggest one to them. The condition of the machine was an evidentiary fact merely, and one that was only serviceable in determining the ultimate fact—the care exercised on the part of the defendant.
Presumably, from their verdict, the jury found that the machine was not in a reasonably safe condition, but whether they found that the defendant had failed to exercise ordinal care and diligence, or had not exercised the highest degree of care known in the conduct of human affairs, and thus inflicted the injury complained of, does not appear. This exercise of, or failure to exercise, the proper degree of care, however, is the very thing that should appear as the result of their findings, and the reason why it does not so appear is that they were not instructed that such was the real and essential object of their inquiry.
Seemingly, appreciating the force of the appellant’s complaint against this instruction, the appellee contends that the error, if any, is remedied by the latter part of her fifth instruction. This seems to us however to possess the same vice as the first instruction, for it simply defines the duty of the vice-principal to be to maintain the machine in such a condition as not to incur the dangers incident to its operation, leaving out the idea that it was her duty, as a vice-principal, to exercise ordinary care only to keep it in proper condition.
It is also contended by the appellee that the error complained of is cured by directions in her seventh instruction. The jury in this seventh instruction were told that “if they believed from the evidence that appellant permitted the mangle to be out of level, and caused it to be operated in that condition, when they knew, or should have reasonably known, from circumstances within their knowledge, that such condition endangered their employees who were at work at it, and the rollers of the mangle, by reason of that condition, started in motion, caught her hand before she could withdraw it, and inflicted the injury complained, the appellant was liable.” Now, whether the jury construed the court to mean, by this instruction, that it was a fact that the condition of the machine was the proximate and efficient cause of the injury, or only that if they should so find, they might find so and so, we are unable to guess from the language of the instruction itself. Being doubtful as to its real meaning, the instruction is misleading in that particular, and of course falls far short of being so perfect as to remedy the defects of another erroneous one.
The third instruction given on behalf of the defendant, and referred to by appellee as calculated to cure the error. complained of, we may say states the law, but what effect it could have in neutralizing the effect of a radical defect, such as is complained of, we cannot say, and this may be said also of the ninth and thirteenth, given at the instance of the defendant and appealed to by appellee in the same connection.
The refusal of the court to give the second, fifth and fourteenth instructions asked by defendant, has the effect of emphasizing the error we have endeavored to'point out..
The ruling of this court in Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232, furnishes an easily understood guide to instruct the jury as to the duties a master owes to an inexperienced minor employed to work for him; and so does the case of Bloyd v. Railway Co. 58 Ark. 66, as to what constitutes a vice-principal; and while it is true that, to establish the fact of contributory negligence as a defense, the burden of proof is on the defendant, yet it must be understood, and so explained in every case, that this fact may appear as well from the testimony on the part of plaintiff as on the part of defendant.
Some of the questions discussed will probably not arise in another trial, and others we have not noticed because we find no error in the trial court’s disposal of them. Upon the whole case, without saying more, we think the instructions were misleading, and that a new trial is proper.
Reversed and remanded. | [
16,
120,
-104,
-67,
24,
99,
58,
-102,
81,
-115,
39,
-109,
-19,
-61,
-115,
97,
-11,
123,
81,
107,
85,
35,
7,
35,
-46,
51,
-15,
-44,
-79,
107,
-30,
-34,
77,
48,
-118,
-43,
-25,
2,
73,
-38,
-62,
4,
43,
-31,
121,
2,
48,
58,
-108,
79,
81,
30,
-29,
44,
35,
-49,
42,
38,
105,
37,
-15,
-15,
-101,
13,
127,
18,
-94,
7,
-100,
101,
-56,
44,
8,
25,
8,
-24,
18,
-74,
-125,
116,
43,
-101,
0,
66,
98,
-94,
9,
111,
-104,
-112,
47,
-22,
-97,
-91,
-101,
104,
43,
107,
-66,
29,
82,
20,
116,
-2,
-9,
21,
86,
101,
3,
-125,
-44,
-125,
-113,
102,
-36,
-114,
-18,
-121,
32,
81,
-98,
-86,
89,
3,
123,
27,
-97,
-106
] |
BATTLE, J.
Appellant was charged with burglary and latxeny in one indictment. He demurred to the indictment, because he was accused of two offenses. His demurrer was overruled, and he was tried and convicted of both charges.
The only question in the case is, can larceny, when committed jointly with burglary, be charged by different counts in the same indictment ?
Section 5 of article two in chapter 44 of the Revised Statutes is as follows : “ Por larceny committed jointly with burglary the offender shall be held to restitution, as in other cases of larceny, and the offender may be indicted for such offenses either separately or jointly in different counts of the same indictment.”
Section 125 of the Code of Practice in Criminal Cases, which was enacted subsequently to the Revised Statutes, provides: “An indictment, exceft in cases mentioned in the next section, must charge but one offense, but, if it may have been committed in different modes, and by different means, the indictment may allege the modes and means in the alternative.” And section 126, the next section, says : “The offense named in each of the subdivisions of this section may be charged in one indictment:
First. Larceny and knowingly receiving stolen property.
Second. Larceny and obtaining money or property on false pretense.
Third. Larceny and embezzlement.
Fourth. Robbery and burglary.
Fifth. Robbery and an assault with intent to rob.
Sixth. Passing, or attempting to pass, counterfeit money or bank notes, knowing them to be such, and having in possession counterfeit money or bank notes, knowing them to be such, with the intention of circulating the same.”
The effect of these two sections of the Code was the repeal of section five of article two in chapter forty-four of the Revised Statutes. But, notwithstanding this repeal, section five was brought forward and made section 1351 of Gantt’s Digest; and this court has held, in Dodd v. State, 33 Ark. 517, Toliver v. State, 35 Ark. 395, and Watkins v. Siate, 37 Ark. 370, that “burglary and grand larceny, if the one was connected with the other, might be charged in one indictment,” and cited section 1351 of Gantt’s Digest to sustain its decision. No mention is made in these cases of sections 125 and 126 of the Code. The court was doubtless misled by Gantt’s Digest.
The cases of Dodd v. State, Tolliver v. State and Watkins v. State, so far as they are inconsistent with this opinion, are overruled.
The judgment of the circuit court is reversed, and the cause is remanded with instructions to the court to sustain the demurrer, and for proceedings consistent with this opinion. | [
-16,
-5,
-71,
126,
10,
96,
42,
-88,
-21,
-127,
-80,
-109,
109,
-62,
4,
113,
-13,
123,
117,
113,
-28,
-74,
47,
3,
-14,
-77,
-63,
71,
-66,
79,
-20,
-74,
20,
48,
-62,
93,
71,
26,
97,
92,
-114,
8,
-86,
67,
-13,
64,
100,
43,
84,
11,
113,
-114,
-13,
43,
18,
90,
105,
44,
73,
-67,
-16,
-71,
-104,
77,
41,
21,
-93,
54,
-103,
13,
-30,
12,
-100,
81,
1,
-8,
115,
-106,
-122,
84,
77,
-101,
-115,
98,
98,
2,
69,
-49,
-100,
32,
38,
-5,
-97,
-89,
-40,
72,
73,
12,
-74,
-99,
119,
84,
6,
-10,
-15,
-44,
25,
108,
-123,
-82,
-108,
-77,
-115,
100,
94,
-13,
-30,
39,
32,
49,
-50,
-94,
92,
87,
88,
-101,
14,
-43
] |
FeETCHER, Special J.
This is an action by J. C. & W. H. Russell against the St. Douis, Arkansas & Texas Railway Company, and Fordyce and Swanson as receivers of said railway company, for damages alleged to have been occasioned to the farm and crops of the Russells, by reason of the improper construction of the roadbed of the company through their farm, and also by a number of jetties constructed in Red river on which ■said farm is situated. There was a verdict for the Rus-, •sells against both the railway company and receivers, ■and they have appealed.
The original answer did not deny that the defendant # 4 ^ railway company built the jetties, but there appears in the record an amendment to the answer, endorsed by the ■clerk as having- been filed after the trial had begun. This amendment denies that the jetties were built by the defendant company, and alleges that they were built by S. W. Rordyce, as receiver of the Texas & St. Louis Railway Company. There is no record entry of the filing, and it is contended on behalf of appellees that the amendment was not filed by permission of the court, and should not be regarded by this court. It is stated in the amendment that it is made “by leave of the court had and obtained,” and evidence was introduced without objection to sustain it. It was treated as having been properly filed, and we will so regard it. St. L. I. M. & S. Ry. Co. v. Harper, 44 Ark. 527; Railway Co. v. Triplett, 54 Ark. 289; Fordyce v. Hardin, 54 Ark. 554.
It is urged on the part of appellants that the court erred in giving numerous instructions for appellees, and in refusing and modifying instructions asked by appellants. The record shows that a general objection was made to the giving of instructions asked by appellees, but it does not appear that any objection was made at the time to the refusing or modifying of instructions asked by appellants. The only objection to the court’s ruling on appellant’s instructions is disclosed in the motion for a new trial. It is the settled practice of this court that objections to the rulings of the trial court shall be specifically pointed out, and that a general objection to several instructions, in gross, will not be entertained if any one of them be good. Atkins v. Swope, 38 Ark. 528; Neal v. Peevey, 39 Ark. 337.
The only question left for us to consider is as to the sufficiency of the evidence to sustain the verdict. The railroad passes through the farm of appellees, and one end of its bridge across Red river is constructed ” upon the farm. The farm borders upon the river for half a mile or more above the bridge. The jetties are six in number, commencing about one-fdurth of a mile above the bridge, and are placed about 150 or 200 yards apart, extending from the bank on which the farm is situated into the river about 150 feet. They were built principally in 1885, by S. W. Fordyce as receiver of the Texas & St. Louis Railway Company. Before that time the bank of the river above the bridge had been caving, and was then caving to such an extent as to endanger, as was thought, both the bridge and the farm. Henry Moore who then owned the farm says: “The railroad officials and myself met several times and examined the caving bank. I judge then that the jetties, were put in as the result of our correspondence and examination of the banks. * * In entering into the correspondence, I thought whatever protection the bridge would get would be of advantage to my plantation. This correspondence was all done by me as owner of the farm. As far as I thought, these were a protection to stop the cavings of the bank. Ultimately, in my opinion, it stopped the caving of the bank. I sold the place at the end of the year afterwards, and I thought I could see the benefit that was accruing to the place. * The jetties were satisfactory to me, and, I am satisfied, helped the place. * * * The results, as I observed them, were beneficial to the place.”
These jetties were not kept in repair. The brush and sand boxes washed out, and the bank cut away at the end of the jetties until a current ran between them and the bank. The bank continued to cave until the ends, of the jetties, which were originally against the bank, are now some distance in the river. In 1890, during an overflow of the river, the bank on which the farm is situated caved in, near the jetty next to the last up the-river from the bridge, to such an extent as to break the-levee which protected the farm, and it was overflowed and otherwise injured, and the crops thereon destroyed. The evidence was conflicting as to whether or not the jetties caused the bank to cave more than if they had not been placed there. But the jury found the issue in favor •of the plaintiffs, and there was evidence on which to base the verdict. We treat this as a fact established in favor of the appellees.
The jetties having been built by the Texas & St. Louis Railway Company, with the consent and concurrence of Henry Moore, and for the mutual benefit of both, the most that can be claimed by Moore, or those in privity with him, is that a duty was imposed upon that ■company to maintain them in good repair, and see that they would not become a source of injury to the farm. After they were built the railroad passed into the hands •of the defendant, St. Louis, Arkansas & Texas Railway Company, and still later, on May 14, 1889, into the possession of Pordyce and Swanson as receivers of the last named company. But there is nothing disclosed in the record by which, in the transfer from the Texas ■& St. Louis Railway Co., the St. Louis, Arkansas & Texas Railway Company assumed any obligation •or duty to maintain or keep these jetties in-repair, or to prevent them from injuring the farm. They are not npon the property or right of way of the company, and it is not shown that the defendant company, or Pordyce and Swanson, as receivers, ever assumed control of the jetties, or in any way adopted or tried to maintain them. The mere fact that they are the successors to the Texas & St. Louis Railway Company is not sufficient to charge them with liability for the jetties as a nuisance. In order to render them liable therefor, they must have done some positive act adopting them, and a mere failure on their part to remove or repair the jetties does not •create a liability. 2 Wood on Nuisance, sec. 838 ; Wayland v. Railway Co. 75 Mo. 548; Walter v. Wicomico Co. 35 Md. 385; Morris Canal & Banking Co. v. Ryerson, 27 N. J. L. 457.
J. C. Russell, one of the plaintiffs, testified that, in the year 1889, appellants had a small boat with a pile driver building a “water break” above the bridge ; but on cross-examination he stated that this work had nothing to do with the jetties. There is nothing in the evidence of this witness to charge appellants with liability for the nuisance.
It is also claimed that the road-bed or embankment, of the company which passes through the farm of appellees was so constructed as to obstruct the natural flow of the water, and form a basin, whereby, the water from the overflow was held upon the land much longer than it would have been had the embankment been built with proper openings or outlets for the water. We are unable to say that there was no testimony to sustain the verdict as to this allegation of the complaint, but there is no finding of the jury or statement of facts by which we can separate the damages on this account from the-other alleged cause of action; and, as the questions presented in argument arising out of this issue are not properly before us, we refrain from discussing the same.
Excluding the evidence touching the claim for damages by reason of the jetties, the verdict is excessive.
Reversed and remanded for a new trial.
Bunn, C. J., was disqualified. | [
117,
-20,
-108,
-98,
-86,
73,
56,
-102,
67,
-127,
-27,
83,
-19,
71,
0,
115,
103,
45,
81,
107,
-11,
-77,
7,
34,
-109,
-13,
-15,
-57,
-68,
73,
-28,
-9,
12,
48,
-54,
-43,
-25,
-64,
-59,
28,
-114,
-59,
-120,
-56,
-47,
0,
52,
97,
6,
79,
117,
-66,
-13,
40,
28,
-61,
13,
44,
-49,
45,
-39,
121,
-70,
-34,
95,
6,
-80,
68,
-101,
1,
-54,
56,
-112,
53,
12,
-24,
119,
-94,
-121,
-12,
9,
89,
8,
98,
99,
1,
37,
-121,
108,
8,
14,
-1,
-115,
-90,
-14,
9,
67,
77,
-65,
-107,
30,
16,
6,
-6,
-11,
-59,
25,
108,
-121,
-49,
-10,
-77,
-65,
40,
30,
7,
-21,
-127,
48,
97,
-49,
-70,
93,
5,
49,
-101,
-122,
-35
] |
Riddick, J.
The appellant, Rugene Donohoe, was indicted and tried in the Garland circuit court for the crime of obtaining property by false pretenses. It was alleged that he procured a quantity of lumber and building materiahfrom J. R. Loyd and J. M. Smith, partners under the firm name of J. R. Loyd & Co., by falsely pretending that he had purchased five acres of land from J. A. Smith at one hundred and twenty-five dollars an acre, upon which land he wished to erect a house, and that he had paid one-half of said purchase money. It was further alleged that these statements concerning the purchase of the land and the payment of half of the purchase money were false.
On the trial the evidence was conflicting. The prosecuting witness, Loyd, testified that defendant made the statement to him that he had purchased five acres of land from J. A. Smith, and had paid half of the purchase price, and wished to purchase lumber to build a house on said land; that on this statement he sold and delivered him a- quantity of lumber. That, but for this representation concerning the purchase of the land, and the payment of half of the purchase price thereof, he would not have sold him lumber. He also stated that, in addition to this representation, defendant agreed to pay for the lumber in monthly payments of fifteen dollars, and that this was another reason why he let him have lumber. It was shown that defendant had not purchased land, but only obtained permission of owner to build a cabin on it, with the understanding that the -owner would sell it to him when the title was cleared up.
Defendant, testifying in his own behalf, denied that he had stated to Doyd & Co. that he had purchased five acres of land, and paid half of the purchase price. That he had only stated that he was going to build on land of J. A. Smith, with whom he had made an arrangement for that purpose. That the only inducement he offered to obtain lumber was a promise that he would pay for it * in monthly instalments of fifteen dollars per month. That he was unable to pay promptly when the first instalment became due, and that Doyd & Co. took lumber away from him. That he had no intention to cheat and ■defraud them. There was other evidence, both on the part of the State and defendant.
The appellant has filed no brief in this case, but we have read the transcript, and conclude that no error was ■committed by the trial court. As, under our statute, the party who sells lumber to another to build a house has a lien on the house, and the land belonging to the purchaser upon which the same is situated, for the payment of the price of the lumber, it is therefore important for the seller to ascertain whether the purchaser is the ■owner of the land upon which the house is to be constructed. An intentionally false statement by the purchaser to the seller in this regard, by which the seller is deceived and induced to part with his property, is a false pretense, within the meaning of our statute defining that crime. The questions whether appellant ■obtained the lumber by the alleged representation, ' whether it was false and made with an intention to cheat and defraud the said J. R. Doyd & Co., were all submitted to the jury under instructions which correctly presented the law of the case, and, as there was evidence to support the verdict, we must treat the finding of the jury as conclusive on the facts. Although Loyd & Co. were induced to part with the lumber, not only by the statement of defendant that he had purchased and partly paid for five acres of land, but also-by the promise of the defendant that he would pay them fifteen dollars per month until the purchase price of the-lumber was paid, yet that did not take the case out of the statute, for, as is said by Mr. Bishop, in the eighth edition of his work on Criminal Law, vol. 2, sec. 424, speaking of cases of this kind, “it would be difficult to-find in actual life any case wherein a man parted with his property on a mere representation of fact, whether true or false, without an accompanying promise.” The court charged the jury that the evidence must show that Loyd & Co. “were chiefly induced to part with their property by such representation, and that but for such representation they would not have done so.”' The statement of the law on this point was as favorable-to the defendant as the court could correctly make it.
The fact that Loyd & Co. regained possession of the lumber did not relieve defendant of the consequences-of the crime, for that was complete when he- obtained possession of the goods by means of the false pretense-alleged.
It is also stated in the motion for new trial that outside matters not in evidence were brought before the-jury, after they retired to consider of their verdict, by members of the jury, and that the jury were thus prejudiced against defendant, and, further, that the verdict was not the verdict of the whole jury. But there is-nothing in the transcript that tends to sustain either of these grounds for a new trial, and we treat them as abandoned. The sufficiency of the indictment was questioned by a motion in arrest of judgment, but we have discovered no substantial defect in it, and none has been pointed, out.
The judgment of conviction is affirmed. | [
-16,
110,
-36,
-113,
26,
-32,
40,
-70,
-45,
-93,
103,
87,
-19,
70,
72,
63,
-89,
109,
-44,
124,
-121,
-77,
123,
-29,
-14,
-69,
-37,
-43,
-68,
-51,
-27,
-43,
76,
48,
-64,
85,
-30,
-62,
-25,
88,
-114,
-127,
-87,
-24,
-45,
81,
48,
-105,
5,
10,
117,
-114,
-13,
40,
49,
75,
73,
46,
-17,
41,
97,
-31,
-106,
21,
-3,
23,
-94,
6,
-103,
1,
-54,
12,
-104,
53,
0,
-39,
119,
-76,
82,
116,
79,
-117,
8,
34,
103,
0,
-19,
-65,
36,
-128,
63,
62,
-99,
-89,
-47,
80,
27,
104,
-67,
-35,
112,
16,
44,
100,
102,
-35,
93,
104,
1,
-17,
-108,
-109,
-113,
48,
-98,
19,
-42,
21,
49,
80,
-49,
-94,
84,
39,
112,
-101,
-115,
-31
] |
Jim Johnson, Associate Justice.
This is an appeal from an order of the White County Circuit Court dismissing an action for debt filed by appellant. Appellant’s suit was on an open account arising out of an alleged sale of chickens to appellees. The trial court dismissed appellant’s complaint upon a finding that appellant had elected to proceed upon the same cause of action in the Chancery Court of Independence County and that having received the benefits of its action in Chancery Court appellant was estopped from prosecuting the instant case. The court further found that the so-called "election” of appellant resulted from an order of the Independence Chancery Court directing appellant to dismiss a previous action for the same debt in the White County Circuit Court or to dismiss the action in the Independence Chancery Court. Thus it is seen that the determination of the issues in this case necessarily involves a consideration of three separate cases wherein some of the parties were the same.
Appellant prosecutes this appeal and states only one point upon which he relies for reversal, i.e., "No Election of Remedies Was Ever Granted.” Under this point appellant argues that it never made an election between inconsistent remedies, and that its prosecution of the suit in the Independence Chancery Court did not operate as a bar to the maintenance of the present action.
In order to understand the issue presented to the Court here, it is necessary to know something of the history of the litigation which preceded this suit. In chronological order, the appellant first filed suit on the cause of action in the White County Circuit Court on June 12, 1958. On December 31, 1958, in an action for accounting against a creditor of the defendant, Wayne Wyatt, Wyatt was made a party defendant on a claim by the appellant for the same debt upon which suit was brought in the case at bar. Subsequently, Wyatt moved in the Chancery Court of Independence County to require appellant to elect as to whether he would pursue the action filed in the White County Circuit Court in June 1958, or whether he would dismiss that action and proceed in the Independence Chancery Court. The record is somewhat ambiguous as to whether the Independence Chancery Court granted the motion or whether appellant acted without an order of the court. The order appealed from shows that appellant was ordered to make such election by the Independence Chancery Court, while the pleadings on behalf of the appellee, which gave rise to the order complained of, would indicate that the action of appellant was voluntary. However, as we view the problem, this is a matter of little consequence since the appellant did dismiss the first suit in the White County Circuit Court. On December 1, 1959, the Chancery Court of Independence County entered a decree dismissing appellant’s complaint against appellee for the same debt sued upon in the case now under consideration. This Chancery Court order was predicated upon a Motion for Dismissal filed by appellees, but such motion does not appear in the record before us on appeal. This decree leaves much to be desired by way of clarity as to the actual ruling of the court and the reasons and grounds therefor. The last. two paragraphs of the decree read as follows:
‘ ‘ That the motion heretofore . filed and not passed upon the Court, and filed on behalf of the Respondents to dismiss Plaintiffs complaint, should be and is hereby granted; and Plaintiffs cause of action is dismissed on the grounds set out in said Motion, and said Action is dismissed at the costs of the Plaintiffs, so far as the Respondents are concerned.
“The Court further finds that since the cause of action of the Plaintiff’s must be dismissed for want of equity, it is not necessary that the Court shall pass upon the motion of the Respondents to make Quaker Oats Company Incorporated, a Third Party Defendant nor to pass on the motion of Quaker Oaits Company, Incorporated to quash Service of Summons upon them.”
On December 1, 1959, the same day that its action was dismissed by the Independence Chancery Court, the appellant commenced the present action in the White County Circuit Court seeking judgment for the same claim asserted in the first case in the White Circuit Court and subsequently asserted in the Independence Chancery Court. The record is not clear as to whether the instant action was commenced after the Chancery Court action was dismissed or whether it was commenced prior to the order of dismissal. There are assertions on behalf of the appellee that the present case was commenced after the order of dismissal. However, the order of dismissal makes no finding as to the precise time that the last case was filed. Subsequently, on March 18, 1960, appellee filed the Motion to Dismiss which resulted in the Order of Dismissal from whence comes this appeal.
With the foregoing facts in mind, it is our opinion that this case must be reversed and. remanded for the following reasons:
1. The Motion to Dismiss is not the proper remedy for interposing the defenses of: (A) An irrevocable election of remedies and (B) res judicata.
2. There is no evidence in the record to sustain the finding of the trial court.
3. Where the record is abbreviated with consent or without objection, there is no presumption that any deleted material would sustain the finding of the trial court.
This Court has consistently held that pleading res judicata is available only by way of answer and is not properly raised by a Motion to Dismiss. Bolton v. Missouri-Pacific Railway Co., 148 Ark. 319, 229 S. W. 1025; Adams v. Billingsley, 107 Ark. 38, 153 S. W. 1105. In this we are in accord with the majority rule set out in 50 C. J. S. “Judgments”, § 824, wherein it is said:
“On the other hand, if the facts and nature of the former adjudication are not disclosed by the face of plaintiff’s pleading, the defense of res judicata usually must be pleaded affirmatively, and cannot be raised by demurrer, or by a motion directed to the sufficiency of the complaint, such as a motion to strike or to dismiss. . . .”
It is premature to attempt to move to dismiss a case on either the ground of irrevocable election of remedies or res judicata. Under our system of pleading the only proper way to raise such matters is by way of plea in the answer. The plea corresponds to the common law plea of confession and avoidance. It is an affirmative plea in nature and, as we will later discuss, the burden of proof is upon the party asserting the defense. While the parties have made free use of the term “election of remedies”, and there is a reference thereto in the order appealed from, a thorough analysis of the Motion to Dismiss and the order appealed from shows that the Motion was granted upon the theory of res judicata. Since res judicata is not available by way of a Motion to Dismiss, the action of the trial court in attempting to separate this one issue and dispose of the case upon its merits upon this one issue without consideration of the other issues of fact is manifestly erroneous.
The record on this appeal shows that the trial court decided this issue upon the pleadings and the argument of counsel without benefit of evidence. The recital of the matters upon which the Motion to Dismiss was submitted makes this fact abundantly clear. There is no reference whatever to any testimony or evidence having been received by the court in the consideration of the Motion to Dismiss. Rather, there is an affirmative showing that the court decided the matter upon the pleadings, the exhibits thereto, the argument of counsel and memorandum briefs of the parties. It would appear that the trial court felt that it could dispose of the Motion upon the pleadings without hearing evidence.
This is an erroneous concept. We pointed out in Denton v. Young, 145 Ark. 147, 223 S. W. 380, that a judgment relied upon as a bar to an action could not be considered unless introduced into evidence. We said in part: “The judgment relied upon in support of this contention was not introduced into evidence in the instant case and was not and could not have been brought into this record by a Bill of Exceptions.” In Running v. Southwest Freight Lines, Inc., 227 Ark. 839, 303 S. W. 2d 578, in discussing the necessity for evidence on a Motion to Dismiss, we said in part: “Since the record in this case contains ... no testimony on which we can say whether the trial court abused its discretion, it becomes necessary to determine which party had the duty of producing such testimony. ... In the ordinary Motion to Dismiss, where testimony is required, the burden is always on the moving party to produce evidence to sustain the allegations of his motion and we know of no good reason why the same rule should not apply here.” It is asserted by appellees that the exhibits attached to the pleadings were actually introduced into evidence in the determination of the Motion. However, the record does not show that these exhibits were introduced as evidence. In fact, the record on appeal in the instant case is absolutely devoid of any transcript of any evidence which the court might have received upon the matter of the Motion to Dismiss.
Appellees contend that exhibits to pleadings are evidence and should be treated as such and in support of their contention cite McMillen v. Morgan, 90 Ark. 190, 118 S. W. 407; and Cummings Bros. v. Subiaco Coal Co., 150 Ark. 187, 233 S. W. 1075. These cases are not authority for this contention. Both of the cited cases actually hold that exhibits to pleadings are part of the record in Chancery cases. In law cases the rule is different, Bouldin v. Jennings, 92 Ark. 299, 122 S. W. 639; Foster v. Elledge, 106 Ark. 342, 153 S. W. 819, and this is a law case. Exhibits must be introduced in evidence in order to be considered. Taylor v. Robinson, 94 Ark. 560, 127 S. W. 972. An exhibit is merely a part of the pleading and has no greater dignity than the pleading to which it is attached.
The only mention in the record here of any matter which could possibly sustain the trial court in granting the motion to dismiss is the decree of the Independence Chancery Court dismissing a proceeding wherein appel lant was plaintiff and appellees were defendants. This is one of the exhibits which appellee contends should be considered as evidence. However, there is no pleading admitting the authenticity of this exhibit nor the rendition of such Order of Dismissal and therefore there is no evidence of the rendition of the Order of Dismissal in the Chancery Court of Independence County.
In this connection, it cannot be said that the Circuit Court of White County, Arkansas, had a right to take judicial notice of the record and proceedings of the Chancery Court of Independence County, Arkansas.
In Bolton v. Missouri Pacific Railway Company, 148 Ark. 319, 229 S. W. 1025, we said:
“We do not take judicial notice of the decrees and orders of other courts. In 7 Enc. of Evidence, page 1003, it is said: ‘The general rule is that a court will not take judicial notice of its own records or proceedings in another independent case or proceeding unless required to do so by statute.’ We do not have a statute requiring us to take judicial notice of the proceedings of other courts; and in the case of Murphy v. Citizens Bank of Junction City, 82 Ark. 131, 112 R. A. (N. S.) 616, this court held that ‘courts can not take judicial notice of their own records in other causes pending therein, even between the same parties. Gibson v. Buckner, 65 Ark. 84; Watkins v. Martin, 69 Ark. 311; Hall v. Cole, 71 Ark. 601; 16 Cyc. p. 918, and cases cited.’ See also Fry v. Chicot County, 37 Ark. 117, Adams v. Billingsley, 107 Ark. 38.”
Even though there is no evidence in the record to sustain the trial court in its ruling, we are aware of the fact that there is a iine of cases which holds that where the record is not complete, it is presumed that the omitted matter would sustain the ruling of the trial court. However, this concept and line of cases was nullified by the adoption of Act 555 of 1953, which provides in part in Section 12 (Ark; Stats. § 27-2127.6), “Where the record has been abbreviated by agreement or without objection from opposing parties, no presumption shall be indulged that the findings of the trial court are supported by any matter omitted from the record.” We have applied this rule in Griffin v. Young, 225 Ark. 813, 286 S. W. 2d 486; Manila School District No. 15 v. Sanders, 226 Ark. 270, 289 S. W. 2d 529; and Kemmery v. Shockley, 226 Ark. 437, 290 S. W. 2d 442. In the last two cited cases it was vigorously contended that evidence had actually been introduced which would sustain the findings of the trial court, but had been omitted in the record on appeal. These eases can be summed up by stating that an appellee who does not object to the filing of an abbreviated record acts, or fails to act, at his peril and if the record omits something vital to appellee’s position, he must fail. There are some assertions in the brief of the appellee herein to the effect that some evidence was heard by the trial court, but in view of the statute and the cases cited, we cannot indulge any presumption that the alleged omitted material would sustain the Circuit Judge.
Reversed and remanded. | [
-48,
-20,
-4,
76,
24,
32,
34,
14,
67,
-127,
103,
-45,
-85,
-61,
4,
101,
-5,
25,
85,
123,
69,
-77,
119,
-32,
-10,
-77,
-56,
77,
-73,
76,
-11,
127,
76,
112,
26,
-107,
70,
-126,
-59,
28,
-52,
0,
-5,
104,
-15,
-117,
56,
-7,
84,
15,
21,
-89,
-29,
46,
57,
66,
-55,
40,
-37,
9,
-48,
-7,
-116,
-123,
125,
84,
49,
103,
-97,
-121,
120,
46,
-112,
57,
2,
-39,
114,
-74,
-122,
20,
77,
-103,
40,
98,
98,
2,
-95,
-17,
-72,
-87,
47,
30,
31,
-90,
-110,
25,
75,
8,
-66,
-99,
125,
16,
-121,
-2,
-27,
-124,
25,
46,
-126,
-66,
-106,
-73,
-113,
36,
30,
71,
-25,
-74,
16,
113,
-51,
-22,
124,
-57,
51,
59,
-60,
-108
] |
Paul Ward, Associate Justice.
This litigation between father and son involves a partnership accounting in chancery, and also a suit by the father on a note in circuit court. The two suits were consolidated in the chancery court. The son, appellant herein, prosecutes this appeal.
The issues involved will be more easily understood from a brief statement of facts and events preceding the litigation. In 1942 appellee, Sam Peden, and Leland King formed a partnership lumber company. Among other things the company manufactured ammunition boxes for the government. Later appellant, who was released from the Army, acquired 1/3 of his father’s interest. This partnership will be referred to as the Peden-King partnership. That partnership, apparently a prosperous one, was dissolved in 1945 by agreement of all interested parties. The dissolution, put in writing and signed by all parties (including appellant), revealed considerable cash assets of which $11,927.73 belonged to the father (appellee) and $18,724.68 belonged to the son (appellant).
Sometime after the Peden-King partnership was dissolved (as above set out) another partnership lumber company was organized, composed of appellant, appellee, Leon Peden, and J. E. Harris. (Harris later sold to appellee.) This will be referred to as the Peden Lumber Company. In order to pay for his 1/4 interest in the new company, appellee executed his note in the amount of $6,071.05 to his father.
On August 26, 1952, Sam Peden filed suit in circuit court against his son, W. C. Peden, to collect the balance due together with interest on the note heretofore mentioned. Judgment was also sought for $1,050 for house rent and $35.06 for water and gas bill.
On September 9, 1952, Sam Peden and Leon Peden filed a suit in chancery court against W. C. Peden (appellant) to dissolve the Peden Lumber Company, and to have a receiver appointed pending final disposition. It was alleged, among other things, that Sam Peden owned a 1/2 interest and W. C. and Leon owned a 1/4 each; that W. C. had failed to cooperate and had withheld funds belonging to the company, and; that the company would deteriorate unless dissolved.
On December 15, 1952, appellant filed an answer in the chancery case (and on same day filed an answer in the circuit court case wherein he asked for a consolidation) in which he also asked for a dissolution of the Peden Lumber Company, and alleged substantially as follows: for 39 months the plaintiffs refused to work, causing him a loss of $2,500; plaintiffs sold equipment causing him a loss of $2,000; they sold timber at a loss to him of $500. Appellant asked for a recovery of $10,500 for loss of profits and $5,000 for his 1/4 in the partnership. In appellant’s answer in the circuit court, he admitted executing the said note to appellee for $6,071.05, but that it had been paid in full from partnership profits.
Then on December 28, 1955 after the cases had been consolidated, and after the receiver had been appointed, appellant filed an amendment to his answer in which he asked to reopen the settlement in the Peden-King partnership which, as before stated, was dissolved by agreement in 1945.
The record discloses that an accountant examined and reported on the financial status of the Peden Lumber Company’s books, and that a Special Master was appointed, agreeable to both parties, to hear the testimony. Much testimony and voluminous exhibits were introduced in evidence.
The Master, after several hearings, found:
(a) Appellant was indebted to appellee on the note (after deducting payments and counting interest to August 4, 1960) in the sum of $6,178.54, in the sum of $1,050 for rent, and $35.06 for water and gas bill.
(b) In regard to the dissolution of the Peden Lumber Company, there was owing (after deducting all expenses of the receivership) to Sam Peden the sum of $9,741.51 and to W. C. Peden the sum of $1,469.48. This accounting did not include land belonging to partnership. A decree was entered in accordance with the above, fixing a lien on appellant’s 1/4 interest in the land to secure payment of the amount due on the note.
Certain exceptions were filed by appellant to the Master’s report and disposed of by the trial court, but they blend and will be discussed, where pertinent, along with the points set out for reversal.
Appellant relies on three separate assignments of error set out, in substance, in the following order: (1) Neither the statutes of limitations nor laches barred appellant from an accounting of the Peden-King partnership; (2) Appellant does not owe appellee anything on the note, and; (3) Appellant was entitled to damages.
(1) Statutes of Limitations and Laches. This point arose as an incident to appellee’s first exception to the Master’s report. The Master did not consider the statutes of limitations and laches because he conceived it to be a legal question for the Chancellor’s decision. The Chancellor then held that appellant could not reopen the dissolution and settlement of the Peden-King partnership because of the said statutes and also because of laches, and we think the Chancellor was correct. The partnership was dissolved in 1945. Appellant made no objection to the accounting and failed to assert any supposed rights based on the same until he filed his amended answer on December 28, 1955 — a lapse of 10 years. If the partnership was based on an oral agreement (and there was testimony to this effect), then the three years statute of limitations would apply. If the partnership was based on a written instrument the five years statute would apply. See: Williams v. Walker, 148 Ark. 49, 229 S. W. 28; Luke v. Rhodes, 117 Ark. 600, 176 S. W. 111, and Booth v. Hayde, 228 Ark. 244, 307 S. W. 2d 227.
It is appellant’s further contention, however, that laches and not the statutes should apply. This argument is based on the contention that a trust relationship between him and appellee was created because appellee came into possession of his money ($18,724.68) and did not account for it. For several reasons, hereafter set out, we cannot agree with this argument and contention.
In the. first place there is a sharp conflict in testimony as to whether appellee paid appellant all of the money due him from the Peden-King partnership. However, even if it be conceded that appellant did not receive all money due him, he still is barred under the facts in this case as the Chancellor found them to be. It is (as must be, to prevail) appellant’s contention that he did not know (and had no cause to suspect) until 1958 he received less than what was due him from the PedenKing partnership. This contention on the part of appellant is difficult to sustain in the face of the undisputed facts revealed in the record. The dissolution of the Peden-King partnership in 1945 was reduced to writing and signed by appellant, and it showed exactly what was due him. The Chancellor’s finding that there was no fraud or concealment practiced by appellee is supported by the weight of the testimony. It clearly appears that appellant, a man over thirty years of age at the time, was in possession of sufficient facts about the dissolution to put him on inquiry as to any undisclosed material facts if any existed. In the case of Smith v. Olin Industries, Inc., 224 Ark. 606, 275 S. W. 2d 439, this court quoted with approval the following statement:
“It is well settled that when the question of laches is in issue the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known to him were such as to put the duty of inquiry upon a man of ordinary intelligence.”
(2) It is here insisted that the trial court erred iii' holding appellant indebted in the sum of $7,263. The record discloses that this is the exact amount the court found due on the note previously mentioned plus rent and the gas and water bill. The record discloses ample evidence to support this finding. In fact it appears appellant’s only defense is that this amount is offset by what he had coming to him from the Peden-King part nership. This defense was disposed of in our previous discussion under point (1) above.
(3) A careful reading of the record convinces us the trial court was correct in dismissing appellant’s claim for damages. The several grounds on which damages were predicated have been heretofore set out. It would unduly lengthen this opinion for no useful purpose to set forth the testimony tending to support and to refute appellant’s claim. We have read it carefully and are satisfied that the Chancellor’s finding on this point is well supported by the testimony. In fact we fail to get the impression that appellant was seriously pressing this claim. At one point in the trial appellant made this statement, shown on page 252 of the record: “I am not claiming for damages. . . .
From all the above we conclude that the decree of the trial court must be, and it is hereby, affirmed.
Affirmed. | [
112,
125,
-4,
28,
26,
-32,
42,
58,
90,
-30,
103,
87,
-21,
-58,
17,
111,
-9,
93,
85,
122,
-27,
-77,
3,
99,
-46,
-77,
-15,
-35,
-76,
-19,
-11,
87,
76,
32,
10,
81,
2,
-128,
-59,
20,
78,
8,
57,
-32,
121,
17,
52,
-117,
84,
11,
117,
-114,
-77,
44,
53,
-25,
72,
46,
-19,
9,
-48,
-72,
-114,
5,
127,
19,
-111,
6,
-68,
76,
72,
46,
-120,
-80,
-120,
-87,
123,
-76,
-58,
124,
35,
-67,
41,
102,
66,
2,
1,
-25,
-104,
-120,
46,
110,
29,
-89,
-121,
56,
3,
121,
-66,
-99,
112,
84,
23,
-2,
-4,
5,
26,
108,
3,
-113,
-58,
-125,
-103,
-30,
-100,
-109,
-18,
-127,
50,
112,
-33,
-96,
93,
71,
56,
-69,
-116,
-77
] |
Carleton Harris, Chief Justice.
This is an appeal from the Logan County Chancery Court, Southern (Booneville) District, wherein appellants, Frederick Salzer and Clara Joan Salzer, seek reversal of a decree of that court entered on February 3, 1961, directing appellants to remove a certain fence, which appellees contend was placed in a public road, and restraining the Salzers from constructing any other fence “any closer to the road than a line parallel to the present fence and seven feet to the west thereof.” The evidence reflects that appellants purchased the land, over which the road in question is located, in 1949, and in March, 1960, Salzer replaced an old fence which ran parallel to the road, with a new fence seven feet to the east. For reversal, appellants principally argue that the use by the public of the road involved was permissive, and that no rights were ever acquired by prescription. It is also argued that the seven-foot strip in question is not a part of the road; further, that the county had abandoned any right it had to the road involved.
The road in question was principally used by those traveling to Highway No. 109, or to Ellington Cemetery, a community cemetery near the town of Magazine (though there was also evidence that it was used as a “lover’s lane”); it lay over unenclosed ground, and from the evidence, had apparently been used by the public for a long period of years prior to 1949. In fact, there is no dispute on this point. Salzer, who, as heretofore stated, purchased the property in 1949, contends that the use by the cemetery frequenters and others, over this long period of years, was entirely permissive, and several cases are cited to the effect that the use of unenclosed lands for passage is presumed permissive and not adverse. See Boullioun v. Constantine, 186 Ark. 625, 54 S. W. 2d 986; Bridwell v. Arkansas Power & Light Co., 191 Ark. 227, 85 S. W. 2d 712; Brumley v. State, 83 Ark. 236, 103 S. W. 615. It is true that this is the general rule, but even the. cases cited mention exceptions. For instance, in Boullioun, the Court said:
‘ ‘ Cases might, and do, arise where those using a private way over uninclosed lands may, by their conduct, openly and notoriously pursued, apprise the owner that they are claiming the way as of right and thus make their possession adverse, but there were no such circumstances in this case, and therefore the user must be deemed to have been by consent of the owner, and, being permissive, could not ripen into a legal right.”
Also, in the Brumley case, this Court said:
‘ ‘ They were dirt roads leading through unfenced and wild lands, and the mere fact that the public may use such roads leading through the open forest for seven years or over does not as a rule make them public roads. When the public use a road running through open and unfenced lands without any order of the county court making it a public road and without any attempt to work it or exercise authority over it as a public highway, the presumption is that the use of the road is not adverse to the rights of the owner of the land, but by his consent.” The above sentence is italicized because in the case before us, while no order was ever entered establishing this road as a county road, the evidence does establish that the road was maintained over a long period of years by the county. This maintenance apparently was regular and consistent, rather than occasional; in fact, so much so, that appellant Salzer, himself, referred to the road as a county road. From the testimony:
“Q. You knew this county road was there when you received the deeds?
A. Yes. At the time I received the deed there was just one road.
Q. And that road was worked by the county?
A. Yes.
Q. You saw the county work that road?
A. Yes.
Q. Did you know where that road was located with reference to the property you bought?
A. Yes, sir.
Q. You knew that the old county road went across part of the property that you received a deed to ?
A. Yes.”
That a public way by prescription may be established over unenclosed lands is evident by our decision in Martin v. Bond, Trustee, 215 Ark. 146, 219 S. W. 2d 618. There, these same cases were cited that are presently cited by appellee, but this Court held that the presumption of permissiveness is not conclusive, and found that the evidence in that case established the public way by prescription. The facts in Craig v. O’Bryan, 227 Ark. 681, 301 S. W. 2d 18, cited by appellants, are far different from those in the case at bar. In that case, those claiming the right to use a road had conferred with Craig relative to whether they had the right to use same; also, we held the evidence did not establish the roadway to be a public road, and it was pointed out that most of the people asserting a right to use the road had not used same for a sufficient period of time to establish their adverse rights. Here, in addition to the county maintenance, it appears that the public asserted a right to use the road in question. Prior to 1949, it would seem that this road was used exclusively for entrance to the cemetery by funeral processions, and those visiting graves of loved ones or friends. Noteworthy evidence that the public had acquired a prescriptive right is contained in the testimony of Salzer himself. Following the last question and answer heretofore quoted, Salzer was asked: “And you recognized the right of the public to use that road?” The answer was, “Yes.”
Nor can we agree that the road had been abandoned. This contention by appellant is based on the fact that a new road was constructed by the county, over which people may also reach the cemetery. This road was built along about the same time Salzer acquired the property in question, and during the same period of time that a new portion was added to the cemetery. This part of the cemetery is north of the old cemetery and is divided by the old road, here in controversy. The proof on the part of appellees reflects that after the new road was built, the public continued to use the old road, much as in the past, and the county continued to maintain it. People still traveled to the cemetery over the old route, and cars parked on each side of the road at funerals, still leaving space for other cars to traverse the disputed way. This newer road was built in 1949 or 1950, but the fence was not moved until 1960. There is nothing in the record to establish that the later road was constructed to be used in lieu of the original road; nor is there evidence that it was constructed pursuant to the application of the public for a new road, made because of a threat to fence off the old one. Of course, Salzer did not move the fence until ten years after the new road had been constructed. In fact, Logan County intervened in this action, asserting:
" That the road described in the complaint of plaintiffs, and which is the subject matter of this action, has been established for at least the past fifty years by prescription and the general public has used said road continuously for said period of time under a claim of right; that during the past fifty years said road has been worked and maintained by the County of Logan, State of Arkansas, as a public county road.”
Further, the fence erected by appellants was “interfering with the right of the public to use said road.” It is apparent that the facts herein are far different from those set out in Holt v. Crawford County, 169 Ark. 1069, 277 S. W. 520, cited by appellants.
Appellants argue that the seven-foot strip involved is not a part of the road; rather, they contend that the seven feet is only a ditch to the west of the road, which was filled with beer cans and debris, and very much needed ' ‘ cleaning up. ’ ’ The testimony was in conflict as to the prior use of this seven feet as a road, and the photographs offered as exhibits do not make the matter clear. J. W. Balkman, who testified on behalf of appellees, stated that the new fence “was in the road proper”, and other witnesses testified that the construction of the fence had considerably shortened the width of the road, though this was disputed by witnesses on behalf of appellant. This leaves the matter purely a question of fact, but aside from that, it does appear, at any rate, that the fenced portion served as drainage for the road. Some of appellant’s witnesses concurred in this view. From the testimony of Laddie Hopkins:
“Q. You talked about a ditch on the west side of the road?
A. Yes.
Q. That was not part of the roadway but it was a ditch to carry the water?
A. That was what it was put there for.
Q. Is that the ditch that carried the water off that you are talking about being grown up?
A. Yes. It grew up every year with weeds and biishes and such.
Q. And it carried the water on that side of the road?
A. Yes.”
We think the evidence in this case establishes a prescriptive right to use of the ditch as well as use of the road. Though we need not go so far in this instance, it is interesting to note there is authority that “when a road is established by prescription, the right is not limited by the beaten path used, but may be made to include sufficient land for drainage ditches, repair, and the convenience of the traveling public.” Haby v. Hicks, 61 S. W. 2d 871 (Texas).
Some space is devoted in the briefs to the question of whether the road in question was a county road, but we need not discuss that issue, since the determinative point is whether the public had acquired a right to the road by prescription.
The Chancellor, who heard the witnesses testify, and was thus in a more favorable position to evaluate their testimony, found:
‘ ‘ The old road was never closed or abandoned at the points involved in this action, but was in uninterrupted, continuous service by anyone who cared to use it for access to the cemetery, for parking, for a lover’s lane, or for access to the hayfield gate of the defendants.
* # * #
The Court finds that the semi-circular drive through the cemetery is now and for many years past has been a ‘Public Road’. This road includes the drainage area on each side of the road. Both the road, the drainage area and the fence line have become established and defendants had no right to move the fence at the points in question any nearer to the road than where it had been maintained for more than 50 years past immediately prior to the acquisition of the land by the defendants, that space between the old fence line and the crown of the road being a part of the public road.”
We are unable to say these findings are against the preponderance of the evidence.
Affirmed.
Point IV asserts that appellees have no right of necessity to the road in question, but appellees make no such contention, and that point is not at issue.
Emphasis supplied. | [
-16,
-20,
-100,
124,
27,
64,
24,
26,
115,
-71,
-12,
83,
-81,
72,
20,
115,
-93,
-67,
117,
105,
-11,
-78,
83,
-127,
50,
-13,
-101,
85,
-78,
89,
-28,
103,
76,
96,
-54,
-43,
70,
72,
-51,
94,
14,
6,
-103,
93,
-39,
80,
56,
43,
22,
31,
21,
-97,
-29,
46,
24,
-61,
104,
44,
75,
45,
25,
50,
-70,
95,
127,
6,
-127,
-90,
-104,
5,
72,
122,
-112,
21,
8,
-8,
115,
-74,
-106,
116,
9,
-39,
8,
-94,
-30,
19,
109,
-1,
-96,
-120,
14,
-9,
9,
-90,
-124,
25,
-63,
0,
-65,
-107,
89,
20,
67,
122,
-28,
21,
89,
56,
37,
-54,
-110,
-91,
-61,
56,
-108,
2,
-21,
7,
114,
113,
-49,
-22,
95,
-57,
115,
-101,
-114,
-47
] |
Sam Robinson, Associate Justice.
This is a personal injury case. There was a judgment in the sum of $1,500 for appellee, W. M. DeFreece. The issue here is whether the trial court erred in failing to direct a verdict for appellants, Bob Baccus and Dr. Pepper Company, the defendants in the trial court.
Appellee, DeFreece, is the production manager of the Dr. Pepper Company at Newport. The Dr. Pepper Company, appellant here, is the Dr. Pepper Company located at Birmingham, Alabama, and it sells to local Dr. Pepper Companies such as the one in Newport syrup used in bottling cold drinks. The syrup is shipped in stainless steel barrels which along with the contents weigh about 658 pounds.
The appellant, Bob Baccus, works for the Dr. Pepper Company of Birmingham. He drives a truck and delivers the syrup to the local bottlers. On July 7, 1958, at the noon hour, Baccus arrived at the Dr. Pepper plant in Newport with 30 barrels of syrup to be unloaded. There were two men with the Dr. Pepper truck, Baccus and Sam Shellnutt. The two men took turns driving the truck, which was equipped with a sleeper cab. I. C. C. regulations require that a driver get four uninterrupted hours of sleep. When the truck arrived at the Newport plant, Shellnutt was in the sleeping compartment of the cab. Ordinarily both, drivers would do the unloading, but on the occasion in question Shellnutt had not had his four hours of sleep and Baccus therefore did not call him.
All of the employees at the Newport plant had gone to lunch except appellee, DeFreece. He had his lnnch with him, however, and went to his car and ate it. Baccus commenced to unload the truck by himself. It was not difficult for him to do this. He had unloaded it by himself many times. He had in the truck a mechanical device that let the barrels of syrup down from the bed of the truck to the unloading dock without much effort on the part of the one doing the unloading.
The mechanical unloader works in this manner: There are two metal runners that extend from the end of the bed of the truck to the unloading dock at a slope of about 45 degrees. The two runners are about two feet apart and are held together by steel rods. On each of four of the steel rods, there is a pair of steel arms extending upward. The arms are held in an upright position by strong springs and shock absorbers. When a barrel of syrup is rolled against the top pair of arms, the barrel presses them backward and down, but they exert enough resistance to cause the barrel to be let down slowly. When the barrel is free of the first pair of arms, the springs cause them to snap back to an upright position and the barrel is engaged by the next pair of arms, and so on down the runners of the unloading device until the barrel is rolled onto the unloading dock.
The following is what occurred, according to the testimony of appellee, DeFreece: After he finished eating his lunch, he returned to the unloading dock. Baccus had unloaded all except three or four of the 30 barrels. Space needed to be cleared on the unloading dock to make room for the three or four barrels yet to be unloaded. On his own initiative DeFreece helped to clear the necessary space. Then Baccus said to him, “Well, let’s get a couple more off of here and save me climbing back up there. ’ ’ The remaining barrels in the truck had been rolled up against the end of the unloader. Baccus walked to the left side of the unloading device and DeFreece went to the right side. They reached up and rolled a barrel onto the unloader. DeFreece then reached up to catch hold of the next barrel, and one of the arms of the unloader, returning to an upright position, struck him on his elbow, breaking a small chip from the hone.
Appellee claims, first, that he was an emergency employee and as such the employer is liable for negligence. The trial court refused to submit that issue to the jury, holding that as a matter of law under the evidence DeFreece was not an emergency employee of the Dr. Pepper Company of Birmingham. Secondly, appellee says that he was an invitee of that Company, and on this theory appellants are liable for negligence, and that negligence of appellants caused his injuries.
Appellants are not liable on the theory that appellee was an emergency employee or an invitee or on any other theory, for the reason that there is no substantial evidence in the record that anyone was negligent except DeFreece himself. There is nothing complicated about the unloader. Any person could look at it and see how it works. No one needs to be told that if hit hard by a. heavy piece of iron it will hurt and perhaps a hone will he broken. Jamieson v. Woodward & Lothrop, 247 F. 2d 23 (D. C. 1957). DeFreece’s injury was due solely to his. own negligence in placing his arm in a position where it would be struck by one of the arms of the unloader on the return to the upright position.
It is clear from the evidence that DePreece had seen the unloader work many times. It was shown that all the syrup shipped from Birmingham was unloaded, with an unloader such as the one in question. During a period of about eight months preceding his injury,. DePreece had signed receipts for syrup on 18 different, occasions. DePreece testified: “Now, I expect that I have seen it [the unloader] about every time that they used it, but as far as being anything like in a close-distance of it to where I could observe any of the operations of it, why I’d say that maybe I checked the-syrup half of the time or was hack around when they were unloading half of the time during that time.”
In other words, on as many as nine different occasions DeFreece had been around when they were unloading. He could not have been around where they were unloading nine times without observing that the arms of the unloader snapped back to an upright position when free of the barrel. It was no more necessary to tell him that if hit by one of the arms he might be injured than to tell him that he might be injured if hit by any other hard object.
In Tucker Duck & Rubber Co. v. Harvey, 202 Ark. 1033, 154 S. W. 2d 828, the Court said: “ ‘Something may properly be left to the instinct of self preservation and to the exercise of the ordinary faculties which every man should use when his safety is known to be involved,’ as we said in Mo. Pac. R. Co. v. Martin, 186 Ark. 1101, 57 S. W. 2d 1047. In Williams Cooperage Co. v. Kittrell, 107 Ark. 341, 155 S. W. 119, Chief Justice McCulloch quoted from 1 Labatt on Master & Servant, § 238, as follows: ‘ The master is not required to point out dangers which are readily ascertainable by the servant himself if he makes an ordinarily careful use of such knowledge, experience and judgment as he possesses. The failure to give such 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 the means necessary for ascertaining the conditions, and there was no concealed danger which could not be discovered. ’ ’ ’
Baecus had no reason to think that DePreece would not see that which was clearly obvious and which De-Preece had been in a position to observe, according to his own testimony, more than half a dozen times.
DeFreece is in no stronger position as an invitee. Liability for an injury to an invitee must be predicated upon negligence. Kroger Grocery & Baking Co. v. Dempsey, 201 Ark. 71, 143 S. W. 2d 564.
On the invitee theory, appellee cites Restatement, Torts, § 343. But there it is said: “A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he . . . has no reason to believe that they will discover the condition or realize the risk therein.” Here Baccus had no reason at all to believe that DeFreece would not discover the condition and realize the metal arm of the unloading machine might hurt him if it struck him.
Appellee argues that the unloading machine was out of repair. There is no substantial evidence to that effect and there is no substantial evidence that if it was out of repair such condition caused or contributed to cause the injury.
Reversed and dismissed. | [
-16,
-20,
-20,
-116,
42,
-96,
26,
-6,
77,
-53,
119,
-45,
-19,
-27,
13,
37,
-11,
125,
85,
59,
-75,
-93,
3,
-29,
-62,
-65,
-7,
-61,
49,
-54,
108,
-2,
-51,
28,
-118,
-43,
-26,
88,
-63,
92,
-52,
4,
121,
-31,
113,
18,
48,
58,
50,
15,
65,
-116,
82,
44,
24,
-53,
13,
40,
-23,
45,
-63,
-24,
-118,
13,
103,
22,
-95,
36,
-98,
-121,
-40,
62,
-112,
49,
40,
-24,
83,
-76,
2,
84,
33,
-99,
0,
34,
99,
2,
-115,
-81,
-8,
-72,
55,
-18,
29,
-106,
-12,
25,
74,
2,
-65,
28,
122,
30,
-108,
126,
90,
69,
29,
109,
2,
2,
-80,
-77,
-81,
32,
-98,
55,
-21,
-89,
32,
37,
-35,
-78,
93,
5,
115,
27,
-57,
-42
] |
Jim Johnson, Associate Justice.
This is an action in eminent domain brought by appellee, Trunkline Gas Company, against appellant, Karoline Feibelman, for the acquisition of an easement for pipeline purposes across land owned by appellant.
The strip of land condemned for the construction of the pipeline ran diagonally across a sizeable portion of appellant’s property and cut across a canal leading from a deep well which carried irrigation water from the well to other parts of the farm.
At the time of the construction of the pipeline, the land was being farmed in rice and the crop was almost ready for harvest. It was stipulated that the value of appellant’s interest as landlord in the crop of rice on the right-of-way which was destroyed by construction was $371.25. In addition to this stipulated amount, the jury returned a verdict for damages to the land in favor of appellant in the sum of $1,267.50, making a total judgment in favor of appellant in the sum of $1,638.75.
From this judgment appellant appeals.
For reversal, appellant contends, inter alia, that the trial court erred in sustaining the objection to the question and answer of J. C. Emenhiser.
The witness, J. C. Emenhiser, after being qualified as a person who knows the land here in question, [he has farmed it; he owns land in the area which was bought in fairly recent years], testified on direct examination that the “before” value of this land was, in his opinion, $66,000, and the “after” value was $48,000, for a difference of $17,000. Immediately after this statement he was asked the following:
“Q. Upon what do you base your opinion? What factors do you consider?
“A. You mean on the . . .
“Q. Why do you feel the market value has been reduced?
“A. Well, on the condemned line, now I’m a rice farmer, and on a condemned line, the pipeline is not going to pay no damages whatsoever from here on and for that reason. . . .”
Condemnor’s Attorney:
“We object to that testimony. That expression, and ask it be stricken.”
The Court:
“At this time I will tell the jury to disregard that question and answer. Objection sustained.”
Landowner’s Attorney:
“No further questions.”
Condemnor’s Attorney:
“No question, Your Honor.”
Landowner’s Attorney:
“Before resting, the Defendant objects to the ruling of the Court for denying the question and answer.”
The Court:
‘ ‘ The jury will disregard the entire testimony of the witness. ’ ’
Landowner’s Attorney:
“The Defendant objects to the ruling of the Court in striking the last question and answer and makes this offer of proof from the witness Emenhiser. What he would have given if allowed to answer, would have been substantially in accord with previous testimony of previous witnesses as to factors affecting the value. . . . The factors and considerations upon which he bases his opinion goes to its credibility under the instructions of the Court, and the Plaintiff has the right to cross-examine and bring out those factors if he so desires, and disqualify that witness’ opinion in that manner. The above goes to the questions of the before and after damages. . . .”
Certainly it was proper for appellant to offer evidence as to the “before and after” value of the land, but as here correctly recognized by the attorney for appellant in his objection to the ruling of the court, the statement by a witness of naked figures alone will not meet the test of the rule laid down in State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738, wherein it was held that a mere statement of the before and after value without stating and taking into consideration the related factors upon which that opinion is based is no evidence of damages. See also: St. Louis Southwestern Railway Co. v. Braswell, 198 Ark. 143, 127 S. W. 2d 637. Following this rule in the instant case, the witness should have been permitted to state the related factors upon which his opinion was based and to otherwise explain his reasons for testifying that the market value of the land had been reduced because of the taking. The question was absolutely proper. The answer from the portion we have before us prior to the interruption appears to be laying a proper foundation for a competent answer to the question propounded.
Therefore, the judgment is reversed and the cause is remanded. Other alleged errors are of such a nature that they will probably not occur in the event of a new trial.
George Rose Smith and Robinson, JJ., not participating. | [
-48,
-24,
-71,
76,
8,
-96,
8,
-104,
65,
-94,
-10,
83,
-115,
-54,
0,
63,
-25,
121,
101,
-5,
-41,
-93,
111,
-46,
-106,
-13,
-109,
-3,
56,
76,
-10,
-33,
76,
17,
74,
85,
-62,
-126,
121,
92,
-50,
-122,
-103,
104,
-51,
96,
52,
75,
86,
79,
53,
-113,
115,
44,
49,
-29,
-55,
36,
-21,
61,
65,
-40,
42,
-98,
79,
20,
32,
38,
-98,
67,
-54,
42,
-112,
-71,
8,
-56,
115,
-90,
-122,
116,
3,
-69,
12,
-30,
107,
1,
101,
111,
-6,
-56,
13,
-6,
13,
-90,
-64,
88,
-61,
-32,
-97,
-97,
120,
20,
-121,
126,
-2,
5,
95,
109,
7,
-114,
-106,
-79,
15,
-84,
-104,
11,
-17,
3,
48,
97,
-51,
-22,
92,
103,
50,
-97,
-113,
-71
] |
Neill Bohlinger, Associate Justice.
The appellants in this case are man and wife who own 20 acres of land in Desha County. Being indebted to the appellee, T. H. Johnson, on January 19, 1956 the appellants executed to the appellee a mortgage on 20 acres of land to secure an indebtedness of $420.98. This indebtedness and interest was paid in full after the tractor notes hereinafter referred to were made but before this suit was filed. The mortgage contained the further provision that it was also security for any other indebtedness of what soever kind that the grantees or the holder of the mortgage might hold against grantors by reason of future advances made thereunder by purchase or otherwise to the time of the satisfaction of the mortgage.
On April 23, 1956, the appellee sold to J. D. Washington, one of the appellants, a tractor and equipment and J. D. Washington at that time executed two promissory notes in the sum of $825.00 each payable on October 15, 1956 with interest. The notes executed by J. D. Washington for the tractor are in the usual form of title retaining notes and recite the contingencies under which the owner of the note may take possession of the chattel and a provision for sale of the property in the event of default in payment.
On March 20, 1961 the appellee filed his complaint in the Desha Chancery Court against the appellants, J. D. Washington and Nola Washington and attached to his complaint the two promissory notes given by J. D. Washington in the purchase of the tractor. He alleged that no payments had been made on the notes and that same were past due and unpaid and he prayed judgment in the sum of $2,295.92; that such judgment be decreed a lien on the lands described in the mortgage, a copy of which together with copies of the notes was attached to the complaint, and he asked that the land be sold to satisfy his debt.
Summons was issued and duly served on both the appellants who failed to plead within the time provided by statute and the appellee filed his motion to strike the answer which had been subsequently filed, which motion was granted by the chancellor and judgment and decree of foreclosure on the land was entered on June 15, 1961. From that judgment and decree of foreclosure comes this appeal.
The filing of the answer was not timely and the chancellor was correct in striking it and the only thing we can consider here would be objection to the jurisdiction of the court over the subject matter or the objection that the complaint does not state facts sufficient to constitute a cause of action. The matter of jurisdiction is not open to question and we address ourselves to the objection that the complaint does not state facts sufficient to sustain the judgment in this case. [Manhattan Credit Company v. Bond, 223 Ark. 480, 266 S. W. 2d 815.]
We note first in that connection that the mortgage is made security for advances made to grantors, Nola Washington being one of the grantors. The sale of the tractor was a separate transaction by J. D. Washington who alone signed the notes. The notes are obligations of J. D. Washington only and not the grantors and the record in this case does not link Nola Washington with the transaction in any manner.
The testimony of the plaintiff, offered at the trial and not in the record before us, could not have changed or altered the terms of the mortgage. Furthermore, the complaint did not allege that Nola Washington signed the tractor notes or that she in any way had agreed to pay them, so no proof could have been offered looking to that effect. In the absence of any such allegations the court could not render judgment against Nola Washington on the tractor notes and they constitute the only indebtedness sued on since the original land note was paid long before this suit was instituted.
The record before us is silent as to the title to the land. While there are some statements in the briefs on that point, there is nothing from which we can judicially determine what the interest of Nola Washington is but certain it is that while the appellee would be entitled to judgment in whatever amount the trial court might find due on the tractor notes, the interest of Nola Washington in the land cannot be subjected to the payment of a separate debt of J. D. Washington.
We conclude that the chancellor is in error in holding that the mortgage covers the notes sued on and this cause is therefore reversed and remanded with directions to enter judgment against J. D. Washington in favor of the appellee for such sum as the trial court finds due on the notes but such interest as the trial court may find the appellant Nola Washington has in the lands described in the mortgage will not be subjected to the payment of the notes sued on herein.
It is so ordered.
Harris, C. J., George Hose Smith and Johnson, JJ., dissent. | [
-11,
-19,
-112,
76,
-118,
-32,
8,
-102,
91,
-96,
38,
83,
-21,
-62,
4,
109,
-26,
25,
101,
104,
-91,
-78,
115,
64,
82,
-13,
-55,
-51,
-68,
-49,
-28,
-41,
76,
4,
-62,
-43,
-30,
-126,
-59,
30,
-50,
6,
11,
108,
-39,
66,
52,
-21,
84,
78,
117,
-97,
-14,
46,
53,
74,
109,
46,
91,
41,
-64,
-7,
-119,
4,
127,
7,
-111,
6,
-120,
65,
74,
10,
-104,
49,
5,
-24,
122,
-90,
-122,
52,
11,
27,
8,
38,
102,
2,
45,
-17,
-72,
-104,
14,
-34,
31,
-122,
-112,
88,
50,
34,
-66,
31,
116,
21,
70,
126,
107,
-123,
31,
108,
7,
-50,
-106,
-79,
-113,
120,
-98,
3,
-5,
-121,
37,
113,
-49,
-78,
92,
103,
59,
59,
70,
-103
] |
Sam Robinson, Associate Justice.
Appellant, Louise Ballard, filed this suit alleging that she is a resident of New York; that she is the owner of certain property in Helena, and delivered possession of the property to appellee, John Wesley Jackson “with the directions that he was to look after and care for said property, collect the rental accruing from the same, and remit to her the unconsumed portion of the rentals.” Appellant asked that appellee be required to make a statement of account of rents received and that he be permitted to ‘ ‘ take credit for all amounts that he has expended, if any, for taxes, insurance, and repairs, if any, and that he be required to produce as exhibits the receipts and invoices showing the amounts of his expenditures.”
Jackson answered alleging that appellant had conveyed the property to him by deed reserving to herself a life estate. He further alleged that appellant had authorized repairs to the property and the payment of taxes and insurance; that he had expended $2,363.61 on those items and that the rents had not been sufficient to repay him for the money he advanced for such purposes. He submitted an itemized statement of account showing the expenditures.
Appellant then filed an amended Complaint and acknowledged that she had conveyed the property to Jackson reserving the rents and profits during her lifetime. AppeHant did not testify in the case either directly or by deposition. After considering all of the evidence, the Chancellor rendered a decree in favor of Jackson.
Jackson claims to have spent $2,363.61 on insurance, taxes and repairs, but $300.00 of this amount was for his own services. Under the circumstances we do not think he is entitled to be reimbursed for that time. He has collected $916.00 in rents. Prior to making the repairs, the two houses involved were vacant, uninhabitable, and produced no revenue.
Appellant executed the deed to Jackson in April, 1957, and subsequently authorized him to do what he considered best in connection with the property. On one occasion she wrote “I told John Wesley (the appellee) to do the very best he could with those shacks down there.” On July 31, 1957, she wrote to appellee “I am going to send you something on my tax bill I owe you.” On August 5, 1957, she wrote “I told Mrs. Douglas to talk to you about securing a loan from the Building and Loan Association.” On November 15, 1957, she wrote to appellee “I am leaving all decisions and deliberations up to you.” On October 1, 1957, she wrote “You can do whatever you feel necessary about the repairs.”
The evidence is overwhelming to the effect that appellant authorized the expenditures necessary to put the property in condition to be rented. Appellee mortgaged his farm to raise the money to make the repairs and pay insurance and taxes. He is entitled to be reimbursed out of the rents as indicated herein.
Affirmed.
Harris, C. J., and George Rose Smith, J., dissent. | [
-16,
104,
-40,
-82,
24,
48,
42,
-126,
67,
2,
-90,
83,
-5,
70,
4,
111,
-15,
125,
117,
98,
-121,
35,
6,
34,
-46,
-13,
-23,
-35,
-76,
92,
-28,
-41,
72,
33,
-54,
-99,
98,
-62,
77,
88,
22,
-125,
10,
-28,
-7,
64,
48,
73,
2,
15,
117,
7,
-13,
46,
17,
78,
76,
46,
109,
51,
-40,
-80,
-114,
5,
123,
70,
-80,
117,
-110,
-123,
-22,
8,
-104,
49,
0,
-87,
123,
-90,
-126,
116,
74,
-69,
8,
38,
98,
16,
-59,
-9,
-4,
-112,
15,
-12,
-67,
-89,
-109,
88,
19,
105,
-67,
-99,
125,
-64,
-17,
-12,
-2,
-124,
29,
40,
31,
-114,
-42,
-95,
-113,
116,
-112,
19,
-25,
7,
96,
113,
-49,
-96,
92,
103,
50,
27,
-97,
-14
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.