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Wood, J.,
(after stating the facts). The testimony on behalf of the appellees, tended to show that the land in controversy, was worth from twenty-one hundre'd and fifty dollars ($2,150) to twenty-five hundred dollars ($2,500). The court might have found from the testi-mony of the Avitnesses for the appellees, that the land was worth as much as twenty-five hundred dollars ($2,500), at the time the deed in controversy was executed. From the testimony of about the same number of disinterested Avitnesses on behalf of the appellants, the court might have found that the land in controversy, was worth a great deal less than the value placed upon it by the witnesses for the appellees.
The question of the value of the land at the time of the execution of the deed in controversy, was one of fact, and the finding of the chancellor in this respect, in our opinion, is not clearly against the preponderance of the eAddence.
Assuming that the land was worth as much as twenty-five' hundred dollars ($2,500), and the grantees would have paid for it as much as eighteen hundred and fifty dollars ($1,850), the highest price shown by testimony of any of the witnesses on behalf of appellants, then there would have been a difference of six hundred and fifty dollars ($650) that the creditors of Phil Simon would have been entitled to, out of his landed estate.
. If the value of the land was but twenty-one hundred and fifty dollars ($2,150), there would have been a difference of but three hundred dollars ($300) between the price paid and the actual value of the land, to which the creditors would have been entitled.
The mere difference between the actual value of the land, according to the testimony of the appellees, and the price paid for same, would not alone be sufficient to show that there was any intent to defraud the creditors of Phil Simon in the conveyance made by him to his sons. But when this is considered in connection with the other facts in evidence it can not be said -that the chancellor erred in finding that the conveyance was made with the intent to defraud creditors. For the undisputed evidence shows, and it is admitted, that the appellant, Phil Simon, at the time the convey-ance was made, owed the appellees the amounts claimed by them respectively, and that suits were pending against him on these claims at the time he made the conveyance, and that judgments were thereafter obtained for the several amounts claimed.
For the appellant, Phil Simon, under these circumstances, to' sell all the land he owned, except his homestead, to his sons, for an amount considerably less than the value of the land, was a strong badge of fraud. It matters not that Phil Simon used the whole or a part of the proceeds of the sale, in payment on his debts, for he was unable to pay his debts and was insolvent, and the fact that the conveyance was made to his sons under such circumstances, would warrant the conclusion that he was making the conveyance in order to put the property in the hands of his children, and to give them the benefit of the difference between the price paid by them and the real value of the land.
This court has often held that “conveyances made to members of the household and near relatives of any embarrassed debtor, are looked upon with suspicion and scrutinized with care, and when they are voluntary, they are prima facie fraudulent, and when the embarrassment of the debtor proceeds to financial wreck, they are presumed conclusively to be fraudulent as to existing creditors.” (Wilkes v. Vaugh, 73 Ark. 174; McConnell v. Hopkins, 86 Ark. 225; Morgan v. Kendrick, 91 Ark. 394-399.)
To the extent that the price paid was less than the value of the land, the conveyance, so far as creditors are concerned, must be held to be voluntary and without consideration.
As was said in George E. Priest against Abraham W. Conklin and Hunter C. Conklin, Administrators, 38 Ill. App. 180, where an embarrassed debtor conveyed a farm that was under mortgage, to his son: “If the farm was worth no more than the incumbrances, he (the son) could abandon the title and suffer no loss. If it should be of greater value, then such excess would be a gift from his father.”
In Leonard v. Flood, 68 Ark. 162, we said: “Where an embarrassed debtor conveys his property to his son, the circumstance is such as to raise a suspicion of fraud, in a suit by his creditors attacking the conveyance as fraudulent, and to cast upon him the burden of showing a consideration.”
While the burden of proof is upon the plaintiff who alleges fraud, to show it, yet that burden has been discharged, where, as in this case, he shows that an embarrassed debtor, pending a suit against him by his creditors, has made conveyance of all the land he owned, except, his homestead, to his sons, for a consideration which upon the face of the conveyance appears to be a grossly inadequate one. Such circumstances are sufficient to raise a suspicion of fraud and to cast a doubt upon the legality of the transaction, and the burden is then on the one holding under the deed to show a consideration. (Leonard v. Flood, supra.)
The testimony of the appellants is not in entire accord as to the amount of the consideration that was paid for the lands. The testimony further shows, that although the deed was made on the 20th of August, 1910, it was withheld from the record until the 17th day of November, 1910, and then entered upon the records, just before judgments were rendered in favor of the appellees against appellant, Phil' Simon.
The testimony also showed, that although the lands had been conveyed from Phil Simon to bis sons on August 20, 1910, he continued to pay the taxes on them in 1911.
The testimony of Geo. R. Woo'd on behalf of the appellees, shows that Phil Simon, when he was attempting to borrow fifteen hundred dollars ($1,500) on the property, afterwards conveyed to his sons, represented to the cashier of the Citizens Bank, from whom he obtained the money, that the property was worth from two thousand to twenty-five hundred dollars. In his testimony given in this case, to sustain the conveyance, he states that the property was worth about fourteen hundred dollars ($1,400).
Phil Simon testified, that when he made the application to borrow the fifteen hundred dollars ($1,500) from the Citizens Bank, he might have told the cashier that the land was worth two thousand to twenty-five hundred dollars. He said he did not recollect telling bim that, but might have done so, as he was “needing money very bad.”
It thus appears that appellant, Phil Simon, is in the unfortunate attitude of being willing to make representations and shape bis testimony to suit his own selfish interests, regardless of the real facts. The testimony of such a witness should not be entitled to much consideration in a case where his own interest is involved.
We are of the opinion, that when the record is considered as a whole, the findings of the chancellor are sustained by the clear preponderance of the evidence and that his decree is in all things correct, and the same is therefore affirmed. | [
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Hart, J.,
(after stating the facts). There is no direct and explicit averment in the complaint that the contract for the sale of the goods was for the use and benefit of Mrs. Duncan L. Moore or for the use and benefit of her separate property. Moreover, the letter set out in the statement of facts was made a part • of the complaint and thus became a part of the record. It was the foundation of the action and will control the general allegations of the complaint. American Freehold Land Mortgage Co. v. McManus, 68 Ark. 263; Beavers v. Baucum, 33 Ark. 722; Buckner & Co. v. Davis & Wife, 29 Ark. 444 ; 31 Cyc. 85.
It is well settled in this State that a married woman can not bind herself as surety or guarantor for the debts of her husband or for a third person, but her personal liability on contracts is restricted to contracts made for her own use and benefit or for the use and benefit of her separate estate. Sidway v. Nichol, 62 Ark. 146; Hardin v. Jessie, (Ark.), 146 S. W. 499, and cases cited; McCar thy v. Peoples Savings Bank, 108 Ark. 151; Sparks v. Moore, 66 Ark. 437.
The contract in question was made for the purchase of certain dental supplies for the husband of Mrs. Duncan L. Moore, and was not made for .her use and benefit or for the use and benefit of her separate estate. She became a surety for her husband and her separate estate would not be chargeable for the performance of her undertaking unless her contract created a lien on her separate estate or some portion of it, as surety for the payment of the debt. The words used are “and pledge my separate estate for the payment of said account.” The question then is, does the language used create a lien upon her separate estate which a court of equity will enforce as an equitable mortgage? We think the language used is too indefinite and uncertain for that purpose. In such cases the form of the writing or agreement is not important, provided it sufficiently appears that it was thereby intended to create, a lien, but the particular property to which the lien is to attach must be clearly described or pointed out. In the case of Bell v. Pelt, 51 Ark. 433, the court held:
“Where an instrument is intended to secure a debt by fixing a charge on land which it' properly describes, equity will give effect to the intention of the parties by enforcing the lien, although the writing is not in the form of the ordinary technical mortgage and contains neither words of grant or defeasance. ’ ’
Mr. Pomeroy, in discussing the question, said:
“The form or particular nature of the agreement which shall create a lien is not very material, for equity looks at the final intent and purpose rather than at the form; and if the intent appears to give, or to charge, or to pledge property, real or personal, as a security for an obligation, and the property is so described that the principal things intended to be given or charged can be sufficiently identified, the lien follows. ’ ’
In the instrument sued on no particular property is described and in the application of the principles above announced, in order to create a lien, in equity, on defendant’s separate estate, it is necessary that the writing or agreement should describe or point out the particular property to which the lien is to attach, and, not having done so, it would not create an equitable lien.
The decree will be affirmed. | [
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Smith, J.
Appellee, who was the plaintiff below, was engaged in the retail millinery business in the city of Little Rock, Ark., and purchased certain merchandise in the city of Chicago, 111., which was received by appellant as a common carrier on October 30, 1911, for shipment and delivery to appellee in Little Rock, Ark. The goods cost and were of the value of $251.50 and were destroyed while in transit at a point near Hulbert; Ark., by train robbers on the 1st day of November, 1911, and none of the goods were ever delivered to appellee.
The defendant answered and admitted the loss of the goods, but alleged that its contract of carriage, which was evidenced by the receipt executed by it at the time of the delivery to it of the goods, contained the following provisions:
“Nor in any case shall this company be held liable or responsible, nor shall any demand be made upon them beyond the sum of fifty dollars on a shipment of 100 pounds or less, and not exceeding fifty cents per pound on a shipment weighing more than 100 pounds, and said property is hereby valued at and the liability of the express company is limited to the value above stated, unless a greater value is declared at the time of shipment.”
And it also further provided:
“The company’s charge is based on a value of not exceeding $50 on a shipment of 100 pounds or less, and not exceeding fifty cents per pound on a shipment weighing more than 100 pounds, and the liability of the express company is limited to the value above stated, unless a greater value is declared and paid for or agreed to be paid for at the time of shipment. ’ ’
And in addition, the answer contained the following allegations:
“Defendant states that at the time of shipment the owner did not declare a greater value than $50 per 100 pounds, but declared that said shipment did not exceed in value $50 per 100 pounds, and the shipper did not pay or agree to pay the charges on a greater value.”
It alleged that said shipment did not weigh exceeding 100 pounds, and that by the terms of said receipt, it is not liable to the plaintiff for any amount greater than $50.
It further alleged that its charges for transporting property are based on the value of the property to be transported. That these charges are shown by its tariff on file with the Interstate Commerce Commission; and that the rate of charge paid by the said Gage Brothers & Company on the shipment herein referred to was based on the rate for shipments not exceeding in value $50 per 100 pounds, and that this defendant can not lawfully pay any greater value for said shipment.”
The appellant on the 4th day of January, 1912, tendered to the plaintiff in full settlement of the claim sued on, the sum of $50 with interest at 6 per cent per annum from October 30, 1911, which tender was refused by appellee.
The material questions of fact were covered by an agreed statement of facts, which contained the following recitals:
‘ ‘ The plaintiff is engaged in the retail millinery business in Little Rock, Arkansas. The defendant is an association engaged in business as a common carrier by express between Chicago, Illinois, and Little Rock, Arkansas.
“Prior to October 30, 1911, the plaintiff ordered a number of hats from Gage Brothers & Company to be shipped to her by express from Chicago, Illinois. The plaintiff was to become the owner of said hats on delivery to the express company and was to pay all express charges and assume all risks incident to' the transporta tion as far as Gage Brothers & Company might be concerned. On said date the defendant received from Gage Brothers & Company two paper boxes and one paper case containing said hats which were of the value of $251.50, and the weight of seventy pounds, and properly addressed to the plaintiff. At the time the defendant received said hats for transportation, nothing was said about their value. It is true that the defendant had in force and effect a schedule of charges based upon the value of goods shipped. The defendant said nothing to the shipper concerning said schedule or the value of the goods and said shipper did not inform defendant as to the value thereof. The defendant gave the shipper a receipt for'said shipment as appears in the .deposition of George C. Woelfel, which deposition is taken as true throughout. The said shipment of hats was not delivered to the plaintiff nor was any part of said shipment delivered to her, although she has often demanded same from the defendant.”
Appellee contends that while her vendor, which was* the consignor, was instructed to deliver the goods to the express company, it was not authorized to make any-contract with the express company other than that implied under the common law from the mere delivery for carriage and that the consignor had not signed the receipt containing the stipulations limiting liability above quoted, and had not knowingly assented to any limitation of liability whatever.
The cause was by consent of the parties submitted to the court sitting as a jury and there was a finding for appellee for the full value of the shipment and judgment accordingly, and this appeal is prosecuted from that judgment.
The judgment of the court below was fully warranted by the previous decisions of this court. St. Louis, I. M. & S. Ry. Co. v. Pape, 100 Ark. 269; Southern Exp. Co. v. Meyer, 94 Ark. 103; St. Louis, I. M. & S. Ry. Co. v. Dunn, 94 Ark. 407; Kansas City So. Ry. Co. v. Carl, 91 Ark. 97; St. Louis S. W. Ry. Co. v. Grayson, 89 Ark. 154.
But since the decision of the above cited cases, several cases involving the questions here considered have been decided by the Supreme Court of the United States which overrule our cases on the subject.
In the case of Adams Express Co. v. E. H. Croninger, 226 U. S. 491, decided January 6, 1913, judgment was asked for the full market value of a small package containing a diamond ring which was delivered to the express company in Cincinnati, Ohio, for shipment to Augusta, Georgia. The package was never delivered and judgment was prayed for the full market value.
The express company made defense by answer, the substance of which was as follows:
“That the defendant was an express company engaged in interstate commerce within the provisions of the act of Congress of June 29,1906 (34 Stat. at L. 584, chapter 3591, U. S. Comp. Stat. Supp. 1911, page 1288), that in obedience to that act it had duly filed with the Interstate Commerce Commission schedules showing its rate and charges from Cincinnati to Augusta, Georgia, which schedules showed that its rates and charges, when the value of the property to be carried was in excess of $50, were graduated reasonably, according to the value, and that the lawful rate upon the package of the plaintiff from Cincinnati to Augusta was twenty-five cents if the value was $50 or less, and was fifty-five cents if its value was $125.
“It was averred that the plaintiff knew that the charges upon the package shipped were based upon the value of the shipment, and that it (the defendant) required that the value should be declared by the shipper, and that if he did not disclose and declare the value when he delivered the shipment to it at Cincinnati for transportation to Augusta, the rate charged would be based upon a valuation of $50. It was alleged that the package so delivered was sealed, and that defendant did not know the contents or value, and that if it had, it would not have received it for carriage for less than the lawful published rate of fifty-five cents. The receipt or bill of lading issued shows no value, but contains a stipulation in these words:
“ ‘In consideration of the rate charged for carrying said property, which is regulated by the value thereof, and is based upon a valuation of not exceeding $50 unless a greater value is declared, the shipper agrees that the value of said property is not more than $50,.unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated nor for more than $50 if no value is stated herein.’ ”
A demurrer to this answer was filed and sustained and the express company declining to plead further, judgment was rendered against it for the full market value of the package.
It will be observed that the provision limiting liability to $50 was substantially the same in that case as in this, and Mr. Justice Lurton, who delivered the opinion of the court, said:
“The original interstate commerce act of February 4, 1887, was extensively amended by the act of June 29, 1906 (34 Stat. at L. 584, chapter 3591, U. S. Comp. Stat. Supp. 1911, page 1288). We may pass by many of the changes and amendments made by the latter act as not decisive, and come at once to the far more important amendment made in the twentieth section' — an amendment bearing directly upon the carrier’s liability or obligation under the interstate contracts of shipment, and generally referred to as the Carmack amendment, ’ ’ which amendment is as follows:
“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or over whose line or lines such property may pass; and no contract, re ceipt, rule' or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed; provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.
“That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage or injury shall have been sustained, the amount of such loss, damage or injury, as it may be required to pay to the owners of such property, as may be evidenced, by any receipt, judgment or transcript thereof. ’ ’
“Prior to that amendment, the rule of carrier’s liability, for an interstate shipment of property, as enforced in both Federal and State courts, was either that of the general common law, as declared by this court and enforced in the Federal courts through the United States (Hart v. Pennsylvania R. Co., 112 U. S. 331, 12 L. Ed. 717, 5 Sup. Ct. Rep. 151), or that determined by the supposed public policy of a particular State (Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 48 L. Ed. 268, 24 Sup. Ct. Rep. 132), or that prescribed by statute law of a particular State (Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133, 42 L. Ed. 688, 18 Sup. Ct. Rep. 289).
“Neither uniformity of obligation nor of liability was possible until Congress should deal with the subject.”
“That the legislation supersedes all the regulations and policies of a particular State upon the same subject results from its general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regulations or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject, and supersede all State regulation with reference to it. Only the silence of Congress authorized the exercise of the police power of the State upon the subject of such contract. But when Congress acted in such a way to manifest a purpose to execute or concede authority, the regulating power of the State ceased to exist.”
And he concludes a discussion of the question of the right of the carrier to limit its liability in consideration of a reduced rate by holding that it can be done, that while a carrier can not exempt himself from liability from his own negligence or that of his servants, he may,by a fair, open, and reasonable agreement, limit the amount recoverable by a shipper in case of loss or damage to an agreed value made for the purpose of obtaining the lower of the two or more rates of charges, proportioned to the amount of the risk. . The court concluded that the provisions of the contract, limiting liability was not in violation of the provisions of the Carmack amendment, quoted, and reversed the judgment of the State court and remanded the cause with directions to overrule the demurrer.
To the same effect are the case of Chicago, St. Paul, M. & Omaha Ry. Co. v. Latta, 226 U. S. 519; Chicago, B. & Q. R. Co. v. Miller, 226 U. S. 513; Wells Fargo & Co. v. Neiman-Marcus Co., 227 U. S. 469; Kansas City So. Ry. Co. v. Carl, 227 U. S. 639.
In the case of Wells Fargo & Co. v. Neiman-Marcus Co., supra, involving the construction of the same receipt which contained the clause limiting liability, Mr. Justice Lurton, for the court, said:
“But the shipper, in accepting the receipt reciting that the company “is not to be held liable beyond the sum of $50, at not exceeding which sum said property is hereby valued, unless a different value is hereinabove stated, ’ ’ did declare and represent that the value did not exceed that sum, and did obtain a rate which he is to be assumed to have known was based upon that as the actual value. There is no substantial distinction between value stated upon inquiry, and one agreed upon or declared voluntarily. The rate of freight was based upon the val uation thus fixed, and the liability should not exceed the amount so made the rate basis. Hart v. Pennsylvania R. Co., 112 U. S. 331, 338, 28 L. Ed. 717, 720, 5 Sup. Ct. Rep. 151.
Under the authority of these cases, the appellant was liable for only the amount of its tender, $50, and interest from the date of the loss of goods to the date of the tender, and judgment against it will be rendered here for that amount, and all costs of this cause subsequent to the date of the tender will be assessed against appellee. Mixon-McClintock Co. v. Kansas City So. Ry. Co., 107 Ark. 48. | [
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Smith, J.
Some time prior to May 16, 1895, Robert C. Brinkley died seized and possessed of the northeast quarter of section 28, township 9 north, range 5 east, Cross County, Arkansas. On that date his heirs executed a partition deed to his lands, dividing them among themselves. By said deed the tract above mentioned was conveyed to R. B. Snowden, trustee for Clara F. Brinkley, who was the wife of James M. Brinkley, one of the heirs of the said Robert C. Brinkley. Prior to this, in 1894, at the sale of lands delinquent for the taxes of 1893, said tract was sold to C. W. Riggs, but no tax deed was ever executed to him. Subsequently, in 1899, C. W. Riggs conveyed said tract of land to the Wales-Riggs Plantations, a corporation.
On October 17, 1907, Clara F. Brinkley and R. B. Snowden, as her trustee, brought an action in the chancery court of Cross County against C. W. Riggs and Wales-Riggs Plantations, alleging that the tax sale held in 1894, at which the tract of land above described had been sold to C. W. Riggs, was void for sundry reasons; that said lands were wild and uninclosed; that plaintiff, Clara F. Brinkley, at tbe date of said partition deed and ever since has been a married woman; that tbe defendants bad cut timber from said lands; and concluded with a prayer for tbe cancellation of tbe title of defendants; that tbe title of plaintiff, Clara F. Brinkley, be quieted as against them; and that a master be appointed to take an accounting of tbe timber cut. Tbe attorney for plaintiffs in this action was T. E. Hare, by whom the complaint was signed and who made affidavit in their- behalf for a warning order. Tbe answer and cross complaint which are filed is not set out, but at tbe September, 1910, term of tbe chancery court, a decree was entered which dismissed tbe complaint for tbe want of prosecution, and tbe court found that cross complainants bad paid taxes on tbe land for seven years under color of title and quieted tbe title of appellee as against appellant.
On May 6, 1911, tbe complaint in tbe present cause was filed by Clara F. Brinkley, in which tbe facts above stated were set forth, and in addition it was alleged that she and her trustee were nonresidents of tbe State of Arkansas, and that her said trustee bad employed T. E. Hare, a practicing attorney of Cross County, to file her original suit and that her said trustee died on or about October 7,1909; and that her attorney died on December 24,1909; and that she remained in ignorance of her attorney’s death until after tbe decree bad been rendered against her. That tbe death of her trustee and attorney was an unavoidable casualty or misfortune which prevented her from appearing and prosecuting her cause of action. In this last complaint, she alleges tbe .allegations of her original complaint were true and offers to prove them, and in addition offers to perform any condition which tbe court may see proper to impose to permit her to redeem from said tax sale. She alleged she was still a married woman and bad been ever since tbe decree was rendered. There was a prayer that tbe decree be set aside and that she be permitted to prosecute said origi nal suit and for all proper relief! Subsequently, an amendment to this complaint was filed, in which it was further alleged that no cross complaint had been filed, and that if filed, it did not state facts sufficient to constitute a cross complaint, upon which a default decree could be rendered, because thére was no allegation of the payment of taxes by defendants under color of title, and that as the plaintiff, Clara' F. Brinkley, was a married woman, neither payment of the taxes nor adverse possession would be a defense to her right to recover the lands.
C. W. Riggs entered a disclaimer, but the Wales-Riggs Plantations answered and denied that appellee had been prevented from asserting her rights by reason of unavoidable casualty or misfortune; denied that she had any interest in the land in controversy, and specifically denied all the material allegations of the complaint and the amendments thereto. It affirmatively alleged that C. W. Riggs had purchased the land at a tax sale and in 1899 had conveyed it to the Wales-Riggs Plantations, thus giving that corporation color of title to the land, which was wild and unenclosed, and had paid the taxes under this color of title continuously since, and for more than seven years before the institution of the original suit; The answer pleaded the seven-year statute of limitations and also that appellant had been guilty of negligence and laches in the prosecution of her original suit.
Counsel for both sides devote much time and give evidence of much research in the discussion of the character of the trust under which Snowden acted. Appellant insists that Snowden was merely a naked trustee with no duties to perform and that therefore he took nothing under the partition deed, though named as trustee, but the entire legal, as well as equitable, title at once vested in appellant. Appellee contends that the rule barring cestui que, trustent, when the trustee is barred, applies .when the trust is passive, because of its being executed by the statute of uses, and that while the 'courts will declare the trust estate executed when the same is passive, yet so long as the courts are not asked to declare a trust executed for such purposes as the right of the holder of the legal title to bring suit, for instance, the trust is not deemed to be executed whether the trust is active or passive. Appellee insists that the trust was an active and not a passive one. The chancellor probably made .a finding adverse to appellant on this question when he confirmed appellee’s title on its cross bill, but this we do not know. However that may be, under our view of the case, we deem it unnecessary to decide those questions for the reasons hereafter stated, and the facts out of which those questions arise are recited to some extent, because they bear upon the question which controls the decision of this case. There is no very serious conflict in the evidence and the facts are substantially as follows: Bobert C. Brinkley was á man of large wealth and had extensive holdings in this State, and upon the partition of his lands, B. B. Snowden was named in the partition deed as trustee for Clara F. Brinkley. The objects of the trust and the powers of the trustee are not recited. From then on neither appellant nor her trustee appear to have given much attention to these lands, evidently regarding them as of but little value, as they were the source of no income. Appellant paid no taxes on these lands and had no knowledge as to whether the taxes were being paid or not, and as a matter of fact, since 1894, neither she nor her trustee had paid any taxes. Appellant owned some income-producing property in Memphis which was controlled by her said trustee, and at regular intervals he rendered her statements of his’ accounts. Appellant testified that she knew Snowden had employed Hare to sue for these lands and that she expected them to attend to the litigation, and that one or the other of them would give her any notification she should have of the progress of the litigation. But she also testified that Snowden had been an invalid for a year before his death, and during the last six or eight months of his life spent his time away from home in search of health. Yet, notwithstanding her knowledge of these facts, 'she made no attempt to communicate in any way with Hare, who, she knew, had charge of her litigation and was unaAvare of his death until a short time before filing this last complaint. Yet in her original complaint she alleged “that her trustee, R. B. Snowden, has failed to look after her interests as he should and suffered her rights to become jeopardized somewhat, and caused much of said property to become a loss to plaintiff.”
Under the facts stated is appellant entitled under section 4431 of Kirby’s Digest to have the decree against her set aside? This is the section under which this suit was brought, and its provisions are as follows:
Section 4431. The court in which a judgment or final order has been rendered or made shall have power, after the expiration of the term, to vacate or modify such judgment or order.
First. By granting a neAv trial for the cause, - and in the manner prescribed in section 6220.
Second. By a new trial granted in proceedings against defendants constructively summoned.
Third. For misprision of the clerk. •
Fourth. For fraud practiced by the successful party in obtaining the judgment or order.
Fifth. For erroneous proceedings against an infant, married woman or person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings.
Sixth. For the death of one of the parties before the judgment in the action.
Seventh. For unavoidable casualty or misfortune preventing the party from appearing or defending.
Eighth. For errors in a judgment, shown by ah infant in twelve months after arriving at full age, as prescribed in section 6248.
The fifth subdivision of this section avails appellant nothing even though the proceeding against her was erroneous for the reason that her condition as a mar ried woman appears from the record. But appellant does earnestly insist that the facts stated bring her within the provisions of the seventh subdivision. . But we do not think so. Her entire conduct with reference to the land is that of indifference both before and after the institution of the suit and when she filed her original suit she made no tender or offer to pay any of the taxes for which the land had sold or those subsequently paid by appellee.
With the knowledge of the infirmity and inactivity of her trustee, and finally of his death on October 7, 1909, she made no arrangements for prosecuting the litigation, but allowed her complaint to be dismissed for want of prosecution and a decree to be rendered by default on the cross complaint at the September, 1910, term of the court, and then waited until the second term of the court thereafter to ask the vacation of these proceedings.
We are of opinion that the chancellor did not err in refusing to vacate the original decree “for unavoidable casualty or misfortune, preventing the party from appearing or defending,” and the decree appealed from is accordingly affirmed. | [
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Smith, J.
The complaint in this cause was filed on August 25, 1911, and it was alleged therein that the appellant insurance company on the 8th day of November, 1910, issued to appellee, who was the plaintiff below, its policy of insurance, covering his household effects; which, on the 11th day of September, 1911, and while said policy was in force, were destroyed by fire, and that the property destroyed was of the value of $567.25. He alleged further that the policy was not in his possession, but was sufficient in amount to cover the loss.
After a demurrer on the part of appellant had been overruled, it filed an answer, denying that it had insured appellee’s household effects, as alleged, and further alleged that on the 8th day of November, 1911, its agent at Helena wrote a policy of insurance on the household effects of the plaintiff to the amount of $300; that the Helena agency made a report of the policy to the appellant in its regular daily report, and upon the receipt of such report, the appellant notified said agency that it had ceased to write farm business, and instructed the Helena agency to cancel said policy and return it to appellant; and that on November 18, the following letter was written appellee:
“Helena, Ark., November 18,1910.
“Mr. Esley C. King, City.
‘ ‘ Dear Sir: We renewed your policy on the 8th inst. but the company has ordered the same cancelled, in as much as practically all the companies have discontinued the writing of country business, it will be impossible for us to rewrite your policy. We will cancel this policy tomorrow, and if you can make other arrangements, with some other agency, it will be well for you to do this before noon.
“Assuring you that we are sorry that we can not take care of this business for you, we are,
“Tours truly,
“Aaron Meyers & Son.”
It was further alleged in the answer that the said policy was never delivered to King, and that the premium had not been paid at the time it was cancelled, and that appellee had made no inquiry about the insurance until after the destruction of the property by fire, which occurred on the 11th day of September, 1911. That said policy contained the following provision in regard to its cancellation: “This policy shall be cancelled at any time at the request of the insured or by the company giving five days’ notice of such cancellation.”
The answer further alleged that appellee had failed to make the proof of loss required by the policy, but as there was a denial of any liability under the policy, that question passes out of the case. Woodmen of the World v. Hall, 104 Ark. 538; Dodge v. Thompson, 94 Ark. 21.
The cause was tried before a jury and under the directions of the court, a verdict was returned for the plaintiff for $300, and this appeal is prosecuted from the judgment pronounced thereon. In determining the correctness of the trial court’s action in thus directing the verdict, we are required to take that view of the evidence which is most favorable to the appellant. Farmers Bank v. Johnson, 105 Ark. 136.
There is but little conflict in the evidence, however, and snch conflict as is material, is pointed ont. Appellee testified that Meyers & Son, appellant’s local agents, had written his insurance for several years past, and that it was understood that they would keep his property insured, and they would notify him if any new insurance had been written, and that his custom was to pay the premiums when called upon to do so. That he would have paid for this last policy, but was never asked to do so, and that while this policy had never been delivered to him, none of the policies had ever been delivered. That he called upon Meyers the next morning after the fire and demanded payment of his loss, but was informed that the policy had been cancelled eleven days after it had been written; and on his cross examination, he testified that Meyers had been writing him annual policies for the past four years and that his postoffice address was Helena and he came to town nearly every day for his mail, but had received no notification of the cancellation of the policy. The evidence on the part of appellant was to the effect that the policy was issued on November 8, 1910; and while this agency had been writing insurance for appellant for a few years prior to this loss, none of the policies had been written for appellant company. That when the local agents' reported the policy in question, a letter was written by the general agent to the local agents-, directing the cancellation of this policy and the letter dated the- 18th, set out above, was written and properly addressed and posted in the United States mails in an envelope with a return card printed thereon. The above mentioned letter was taken from the carbon copy kept by the local agent. This agent testified that appellee had never paid, nor had he been asked to pay for this insurance for the reason that the policy had been cancelled, pursuant to the notice given appellee to that effect. That their custom was to charge themselves with the premiums and to send out monthly statements of the amounts due, but no statement was sent appellee and tbe subject was never mentioned between them for the reasons stated, and the policy was never delivered, but was returned to the company when it was cancelled.
Appellant offered to introduce the letter cancelling the policy, but the court refused to permit its introduction and made the following ruling with reference thereto:
By the Court: “Let your exception go into the record. Your own witness stated that the letter or notice was given one day and the policy cancelled the next. The policy states the notice shall be given five days before the cancellation shall occur.”
In making this ruling, the court evidently assumed that notice of cancellation had been received by appellee, but was insufficient for the reason given. As the case will be remanded, we take occasion to say that receipt of the letter by appellee is an essential fact to be affirmatively shown and the burden of proving its delivery is upon the appellant, and if its receipt is not established by the proof, then the jury should be instructed to return a verdict for the appellee. Runkel v. Citizens Ins. Co., 6 Fed. 143; Farnum v. Phenix Ins. Co., 23 Pac. 872; 19 Cyc. 646.
But this evidence, viewed as we must view it, presents the question of the receipt of the notice for the determination of the jury.
We think, however, that the court erred in holding that the letter was insufficient as a notice of cancellation. The policy in question is what is known as a standard policy and the provision with reference to cancellation upon five days’ notice has been passed upon by many courts and uniformly held valid. But this right of cancellation, where a policy has been fairly entered into and has taken effect, can be exercised only because it is reserved in the policy, and can only be exercised as it is there provided. Davis Lbr. Co. v. Hartford Ins. Co., 70 N. W. 88; American Fire Ins. Co. v. Brooks, 34 Atl. 376. The notice from the general agent to the local agent, di recting the cancellation of the policy did not accomplish that result. Farnum v. Phenix Ins. Co., 23 Pac. 872.
The notice must be given to the insured, and it should state not merely an intent to cancel, if some condition be not complied with, but it must be an actual notice of cancellation within the meaning’ of the policy and so unequivocal in its form, that the insured may not be left in doubt that his insurance will expire on the time limited by the terms of the notice, and that the company will not be liable for any loss after the expiration of that time. Southern Ins. Co. v. Williams, 62 Ark. 386; German Fire Ins. Co. v. Clarke, 39 L. R. A. (N. S.) 829; Lattan v. Royal Ins. Co., 45 N. J. L. 453. Of course, this policy remained in force for five full days after the receipt of this notice, if it was received, for it was a condition precedent to the right to cancel that this time be given in order that other insurance might be procured if desired before the cancellation became final. American Ins. Co. v. Brooks, 34 Atl. 376.
There was nothing uncertain about the notice set out above. If it was in fact received, appellee was advised in terms, which he could not fail to understand, that appellant had exercised its right to cancel' the policy and had cancelled it. It is true, this notice stated the policy would be continued in force for only one day, but that statement did not affect liability for the five days following its receipt, and the fire did not occur until long after the five days had expired.
The question which is usually found in similar cases about the return, or the offer to return, the premium does not arise here for the premium had not been paid.
We conclude, therefore, that the notice claimed to have been given cancelling the policy was sufficient to accomplish that purpose, if it was in fact delivered, and the judgment is therefore reversed and the cause remanded with directions to submit that issue to the jury under appropriate instructions. | [
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Kirby, J.
On March 24, 1911, Sledge & Norfleet Company brought suit for the balance due upon a promissory note of S. H. and Addie A. Lenox and to foreclose a mortgage given to secure the payment thereof. At the October term, 1911, a decree was rendered in their favor for $1,844.25, and the property conveyed by the trust deed ordered sold and a commissioner appointed for that purpose. The commissioner advertised the sale for January 22,1912, and on that day sold the real estate for $3,850 to M. Wolchanski, who waived the right to credit and paid the amount of his bid in cash and received from the commissioner a certificate of purchase which he subsequently assigned to J. E. Wells, appellant. The commissioner reported the sale to the April term, 1912, of the court and appellees, S. H. and Addie A. Lenox, filed exceptions to the report.
In February, 1912, appellees, S. H. and Addie A. Lenox, filed a complaint in the chancery court against the purchaser and his assignee, J. E. Wells, alleging that Wolchaski had assigned the certificate to Wells, that the latter had taken possession of the lands before the confirmation of the sale, that a part of the lands sold by the commissioner was not their property but the property of Addie F. Lenox, who was also a party to this suit, that the sale by the commissioner was fraudulent, unjust, inequitable and for a grossly inadequate price, and prayed an order restraining Wells from taking possession and other relief. The temporary restraining order was issued.
J. E. Wells, the assignee of the certificate of purchase, answered that he was the owner of the certificate of purchase issued to Wolchaski, that the property had been abandoned by Lenox at the time of his purchase thereof and that he entered for the purpose of protecting his interests as the holder of the certificate of purchase; denied the alleged right of redemption and that the sale was fraudulent,, unjust, inequitable and for a grossly in adequate price; alleged the existence of a prior mortgage uppn the said land to secure a debt of $4,700, the payment of which he assumed by the purchase thereof and $380 past due interest upon said first mortgage, all of which he was compelled to pay to the holder to protect himself. He also filed an intervention to the original, setting up the same matters.
The suits were consolidated, and upon hearing the chancellor found that no fraud was perpetrated upon appellees, S. H. and Addie A. Lenox, in reference to the sale. That they were by accident and mistake deprived of the opportunity of attending the sale of the land and of the opportunity to procure funds to satisfy the amount due thereon prior to the date of the sale and that the price for which the land sold at' the commissioner’s sale was grossly inadequate.
It ordered the appellees to pay to Sledge & Norfleet Company $1,948.30 and cost, and upon the payment refused to confirm the sale and decreed that it should be set aside. It further directed the court commissioner to pay to appellant, John E. Wells, the $3,850 he had paid for the certificate of purchase for said land. From the decree this appeal comes.
Appellant contends that the court erred in sustaining the exception to the report of the sale and setting aside the same.
From our review of the testimony we are not able to say that the chancellor’s finding that the land sold for a grossly inadequate price is against the preponderance of the testimony. Several of the witnesses testified the lands were worth between $15,000 and $25,000 — some of them placing the value at $20,000, an amount double the price for which they sold; the inadequate price alone, however, would not invalidate the sale. “The rule in reference to judicial sales is that in the absence of fraud and unfairness, mere inadequacy of price, however gross, does not invalidate the sale.” Brittin v. Handy, 20 Ark. 381; Fry v. Street, 44 Ark. 502; Colonial & United States Mortgage Co. v. Sweet, 65 Ark. 152; Sawyer v. Hentz, 74 Ark. 324.
Such, a sale is not complete, however, until confirmation and may be set aside before it is confirmed.
In Wells v. Rice, 34 Ark. 346, the court said: “But until confirmed by the court, a sale made under its decree is not completed and a deed to the purchaser confers upon him no right to the property.
■ “The theory of sales of this character is ‘as the court says in Sessions v. Peay, 23 Ark. 41, ‘that the court is itself the vendor, and the commissioner, or master, its mere agent in executing its will. The whole proceeding, from its incipient stage, up to the final ratification of the reported sale, and the passing of the title to the vendee, and the money to the person entitled to it, is under the supervision of the court. The court will confirm or reject the reported sale, or suspend its completion, as the law and justice of the case may require.’ Ror. on Jud. Sales, § 1; 2 Frem. Void Jud. Sales, § 41.”
And in Greer v. Anderson, 62 Ark. 215, the following :
“Courts may generally be expected to confirm sales which have been conducted according to the directions and upon the terms prescribed by them, unless intervening circumstances should make it unwise or unjust to do so. But they are not compelled to confirm them, and no purchaser at such a sale has the right, to rely absolutely upon the order of the court directing the sale, and the fact that the agent of the court has pursued the terms prescribed in making the sale.”
In The Bank of Pine Bluff v. Levi, 90 Ark. 166, the court said: “Before the confirmation of the commissioner’s sale, irregularities may be shown that the sale was not made in accordance with the provisions of the decree; or any misconduct or unfairness may be shown, in order to set aside such sale. And upon all these matters, the chancery court passes when it makes its decree of confirmation. And from such an order or decree of confirmation an appeal lies. Ror. on Judicial Sales, par. 132.”
It is nevertheless true that the purchasers at such sale acquired rights which can not he disregarded except for sufficient reason. In Robertson v. McClintock, 86 Ark. 255, the court said:
“It is now, however, the settled law of this State, as it is of most of the States, that the highest bidder at a judicial sale, to whom the property has been struck off by the commissioner, acquires vested rights, which must be respected by the court. Colonial & U. S. Mortgage Co. v. Sweet, 65 Ark. 152; Banks v. Directors of St. Francis Levee Dist., 66 Ark. 493; George v. Norwood, 77 Ark. 216.
“Under these decisions, the confirmation is not the sale, but only what the word implies, the approval of something already done. The sale is made by the commissioner. Confirmation only gives the court’s sanction to something that has already taken place, and authorizes the commissioner to execute the deed. The purchaser can not take possession until he receives this, but it will not do to say that a sale which the court must confirm amounts to nothing. If the sale has been unfairly made, or is for a shockingly inadequate price, the owner can object to the confirmation.”
The evidence shows that appellees were and had been long indebted to Sledge & Norfleet Company and that upon the recovery of the judgment and the decree of the sale of the property mortgaged to secure the debt, S. H. Lenox went to the Union Trust Company of Little' Eock to borrow money to pay off said judgment and the prior mortgage upon said lands. He was told by the president of said banking company that he thought that there would be no trouble about lending, him the amount desired and that he should get up his abstracts and submit them as soon as he could. He immediately ordered the abstracts made in December in Desha County; there was some delay about their completion and when finally delivered they were found not to be correct. Meanwhile the date of sale was approaching and appellee, Lenox, was anxious about procuring the loan and insisted with the officers of the company that it should not be longer de layed, and, that the lands having been advertised for sale, that the bank should lend them enough money in any event to pay off the judgment under which the sale was ordered. He was assured by the president of the company that he would let him have the money as soon as they could look over the abstracts, and also that he would arrange the matter, and thought he could get Mr. Norfleet to extend the time of sale until the abstracts could be received and the necessary papers prepared. Lenox was thereafter assured by another person that he could and would procure the loan for him if the trust company did not, but understood that he was to get the money from the trust company and declined the offer.
About the 10th or 12th of January, 1912, Lenox again went to the officers of the trust company about the loan and was urged to hurry his abstracts. He thereupon directed by telephone the abstract company at Arkansas City to prepare and deliver the abstracts by a certain day, which it agreed to do. It failed, however, to finish the abstracts in that time. The trust company wrote to Sledge & Norfleet Company at Memphis that they expected to make the loan to pay off the decree and subsequently Mr. Reyburn, its president, had several telephone conversations with Mr. Norfleet at Memphis, in one of which he suggested a postponement of the sale until matters could be concluded. He stated “Mr. Nor-fleet did not expressly agree to a postponement at that time but did not refuse it, and I understood that' there would be no difficulty about it. I asked Norfleet to send his mortgage and what abstracts of title he had in his possession in order that the trust company might determine the amount necessary to take up the outstanding debts. Mr. Norfleet agreed to have Mr. Rogers send all papers to me for his information. On January 12, 1912, Mr. Rogers wrote a letter to the Union Trust Company, addressing it by mistake to Pine Bluff, Arkansas. The letter was forwarded to Little Rock and reached me on January 15. In this letter Mr. Rogers said: ‘At the request of Mr. P. M. Norfleet, I herein enclose you origi nal mortgage to S. H. Lenox, and a pencil memorandum, showing the various payments made on the note and the balance as due thereon on the 15th day of March, 1911. The original note is filed in the chancery court at Arkansas City. The decree was for the amount shown due on this statement, plus interest up to the 20th day of October, 1911; it bears interest from that date up to the present time at the same rate. I sincerely trust that you will make the loan. Kindly advise me both here and at Arkansas City how the matter progresses, as I will be at Arkansas City all next week. ’ ’
On receipt of this letter the Union Trust Company wrote Messrs. Sledge & Norfleet that they had received the Lenox papers and that they were misdirected, but they did not include the abstract of title which it was necessary to have before the loan was made, and that Mr. Lenox had assured them that it was with these papers, and concluded by asking them to send the abstract at once if they had it, and saying it is only about a week now until the sale, and if we are going to do anything we must do it promptly. On the 18th of January, Mr. Rogers wrote the Union Trust Company, suggesting the postponing of the sale until February 10, as follows:
“Gentlemen: Mr. Lenox wrote the Desha Bank & Trust Company requesting an abstract of two tracts of land to be completed and delivered by the 20th. I take it that this was in reference to procuring the loan from you to pay off Sledge & Norfleet’s decree. Mr. Thane and I find that Mr. Lenox has 160 acres which was not covered by any mortgage except to Sledge & Norfleet. If you make the loan, this will give you first lien on this acreage. Mr. Thane tells me that he can not get the abstract ready under ten days. Neither Sledge & Nor-fleet or I wish to sell this property if the sale can be avoided. I therefore suggest that if there is a strong-probability of your making the loan that you have Mr. Lenox and his wife write immediately by return mail at this point, requesting that the sale be postponed until February 10. This will give ample time to complete the loan.”
Reyburn testified this letter was probably received at tbe bank’s office on tbe-afternoon of January 19, but tbat be was not in at the time and it. was put on tbe file of correspondence witb reference to tbe Lenox matter and in some way covered up by some other letters in tbe file. Tbat be was in tbe office a short time Saturday morning on tbe 20th but did not discover tbe letter until about noon of tbe 2-2d of January, nor bad any intimation of its contents until Monday, January 22. On Saturday night, January 20, tbe day after tbe receipt of said letter in tbe office of which he was ignorant, be telephoned from bis residence to Mr. Norfleet at bis home in Memphis, asking why be bad beard nothing further about tbe Lenox matter and “Mr. Norfleet told me be bad written Judge Rogers, tbat Judge Rogers bad written me or would write me tbat there would be an adjournment of tbe sale so as to give me time to go through papers and complete tbe loan witb Lenox for tbe purpose of paying off tbe decree. When I' bad this telephone conversation I was satisfied tbat tbe sale would not be made on tbe following Monday, January 22, and gave tbe matter no further concern. After talking with Mr. Norfleet I tried to get Mr. Lenox on tbe phone in Little Rock but could not find bim tbat night. Sunday night be called my residence on tbe phone and I advised bim of tbe information which Mr. Norfleet bad given me and told him tbat Mr. Rogers would not make tbe sale next day — Monday—but would adjourn it. He was greatly relieved, and I beard nothing further about tbe matter, until about 12 o’clock on January 22, when Mr. Lenox phoned me tbat Mr. Rogers was going ahead and make tbe sale and wanted to know why I bad not answered bis letter of tbe 18th. I told bim that I bad no such letter and immediately began an investigation and found tbe letter already referred to. Mr. Rogers’ letter was dated January 18, which was Thursday, and my last telephone conversation witb Mr. Norfleet was on Saturday night, January 20, and I thought Mr. Rogers bad received or would receive further notice from Mr. Norfleet not to make the sale, while Mr. Norfleet had evidently thought I had received the Rogers letter of the 18th and knew the conditions on which the sale would be adjourned.
On the 22d, the day of the sale, Norfleet wrote Reyburn as follows: “I had a letter today from Judge Rogers, saying there were 160 acres of land described in our trust deed not in the one held by Mr. Rose, and he had adjourned the sale of the land on a request he expected to receive from you in the mail of Saturday’s or Sunday’s date, asking him to do so, with the understanding if the title was satisfactory, which he was satisfied it was, you would take up the loan, and there would be no occasion for making the sale.”
On the 22d Mr. Lenox called up Mr. Thane, the abstracter at Arkansas City, on the telephone and understood he had a conversation with Mr. Rogers and Mr. Rogers was present with Thane listening to the conversation. Lenox asked if Rogers had received Mr. Nor-fleet’s message and' Thane, after talking with Rogers, replied, “No; no other than his instructions.” Lenox said, “Why, Mr. Rogers, Mr. Reyburn had told me a few minutes ago they had instructed you to call this sale off,” and Mr. Rogers replied, “I am following my instructions.” Lenox then asked Rogers to call Reyburn over the telephone and Rogers replied that he should have Reyburn call him. He was unable to get Reyburn by telephone for an hour or such a matter, and finally got him on the phone and Mr. Reyburn. told him that Mr. Norfleet had given Mr. Rogers his instructions and that he would not be molested down there. Lenox then went to Reyburn’s office, still feeling uneasy about the situation, but did not find him until about 3 o’clock on the day of the sale and after it was made. Rogers stated that he did not communicate with Lenox over the phone prior to the sale, that on that day about noon he was in the director’s room in the bank at Arkansas City awaiting a reply to his letter of the 18th inst.; that Mr. Thane was called to the phone and he heard him say, “He is here.” Thane then turned to me and said, “Lenox is now talking about Ms matter; do you wish to say anytMng to Mm?” and my reply was, “Please tell Mm that unless he or Mr. Reyburn requests the postponement, the sale will occur before 3 o’clock this afternoon. I am not positive but my recollection is that I said “request by wire. ’ ’ After the day of the sale, the next day, probably, Mr. Lenox called me over the phone and asked what had been done. I told him and he said, “Why did you sell it?” I replied, “Because you would neither pay nor ask a postponement.” “Why did you not act on my message to you through Mr. Thane on yesterday?” His reply was, “That he could not find Mr. Reyburn.” My recollection of the hour of Lenox’s conversation was about 1 o’clock. I remained at the bank waiting for the message until 2:10 p. m., and then went to the courthouse and had the commissioner make the sale.
Lenox on cross examination by Rogers answered as follows:
Q. 6. Did he not tell you that I requested him to say to you that that sale would occur before 3 o’clock unless you' or Mr. Reyburn asked me to adjourn the sale over?
A. 6. Well, now, I did not understand it that way, Mr. Rogers; the way I understood that was I said, ‘Why, Mr. Rogers, Mr. Reyburn said he told you to put off this sale,’ and the way I understood it you said, ‘Well, you tell Mr. Reyburn to call me up, you tell Mr. Reyburn that I want to talk to him, to call me up before 3 o’clock;’ I think that’s the identical words.
Q. 7. Don’t you remember that Mr. Thane told you that.I asked him to say to you that the sale would occur before 3 o’clock unless I was requested by you or Mr. Reyburn to adjourn it over?
A. 7. I do not remember it that way; no, sir. It might have been, but I did not take it that way.
On re-direct examination Lenox answered as follows:
Q. Mr. Rogers asked you in cross examination if you did not understand him to say at the telephone, or asked Mr. Thane to tell you over the telephone, that the sale would not be postponed unless you or Mr. Reyburn requested it. If you had understood that message as Mr. Rogers stated it to yon, would you not have requested postponement?
A. Most assuredly I would, then and there.
It is evident that Sledge & Norfleet and their attorney were disposed to accept the payment of their judgment instead of compelling a sale under the decree of the court for its satisfaction, and that they were willing to grant a continuance of the sale to another day to give time in which to complete the papers necessary to procure the loan for the payment of their claim. It is also apparent that the bank and trust company had led Lenox to believe that it would make the loan and its president had understood from Mr. Norfleet at Memphis that the sale would be postponed and assured Lenox that it would be done, and after this assurance, which was justified certainly by the letters of Norfleet to Reyburn, Lenox took no steps to get the money from others from whom he could have procured it to pay the judgment and was necessarily prevented from attending the sale on account of it, not thinking it necessary to be there upon that day, and understanding that it would be postponed.
After his conversation on the day of the sale with the attorney who was directing the commissioner, he was unable to find the president of the trust’ company and have him assure the commissioner that the judgment would be paid upon postponement of the sale and he also states that he understood from the attorney that he was following his instructions and not that the sale would be made in any event unless its postponement was requested. His calling the attorney on the next day after the sale, asking why it had been made, shows that he did not understand that it would be made and still thought the sale would be postponed. There Avas no fraud intended by the conduct of any of the parties, but certainly it can not be said that there was not such a mistake on the part of Lenox warranted by the conduct of the, judgment creditor, Norfleet, as would render unfair and inequitable the confirmation of the sale made upon the day it was advertised for an inadequate price as the testimony shows. Under all the circumstances we are not able to say that the sale was not unfairly made as found by the chancellor, and the decree setting the same aside and refusing to confirm it is not erroneous, and is accordingly affirmed. | [
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McCulloch, C. J.
This is an appeal from a .judgment of conviction of the crime of murder in the first degree. Appellant, Boss Gaylord, is accused of murdering one Herbert Williams, who was a rural mail carrier, and the crime was committed on a country road while Williams was on his route collecting and delivering mail. He was riding a bicycle, and he was found desperately wounded lying on the roadside near the bicycle. He had three distinct wounds on his head which, according to the testimony of experts, were inflicted by a blunt instrument and which caused his death. One of the blows fractured the skull and proved fatal, though he lived nearly a month. The surgeon who attended him testified that he appeared to be in a dying condition from the time he first saw him after the wounds had been inflicted. Ap pellant was arrested the next day, and the State adduced at the trial proof of many circumstances which tended to establish his guilt. In addition to that, it was proved by testimony of several witnesses that he made a confession in which he stated that he assaulted Williams and inflicted the blows which caused his death. What purports to be a written confession, signed by appellant and attested by two witnesses, appears in the record. •
The first and principal contention of appellant’s counsel is that the -bill of exceptions does not show that the written confession was read to the jury and'that it was improper to admit oral testimony as to its contents.
One of the witnesses testified to an independent confession, and three or four witnesses who were present when the confession made in the jail of Pulaski County was reduced to wilting, were introduced, and some of them stated the substance of what appellant said.
We are of the opinion that the record fairly reflects the fact that the written statement, after being identified by the witnesses, was introduced in evidence and read to the- jury. It was handed to the witnesses while they were on the stand and they identified it. The filing mark of the clerk appears on the paper, and in the bill of exceptions it immediately follows the testimony of the witnesses who identified it. It is true the instrument is not preceded by an affirmative statement that it was then read to the jury; but it is fairly inferable from the way in which it appears in the record that it was read to the jury. The bill of exceptions recites in the beginning that what follows was the testimony adduced in the case, and it would be a strained construction of the bill of exceptions to say that it fails to show that this paper, about which all the witnesses were asked, was not before the jury.
The witnesses who related what defendant said in his confession stated nothing further than what the writing- itself showed, and it is, therefore, unnecessary to decide how far the State had the right to go in introducing- proof concerning the confession which had been re dueed to writing. Inasmuch, as we hold that the writing itself was introduced, and that the witnesses stated no more than what it contained; no prejudice' could, in any event, have resulted.
Error of the court is assigned in refusing to give an instruction telling the jury that there were “no dying declarations of the deceased to be considered in the case.”
The State did not attempt to prove a dying declaration of the deceased and did not rely on that character of proof to sustain the conviction. Therefore, it was unnecessary to say anything about a dying declaration in the instructions.
The court gave correct instructions to the jury upon all the phases of the case, and the record as presented to us is entirely free from error. The testimony is abundantly sufficient to sustain the verdict.
Judgment .affirmed.. | [
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Wood, J.
The appellant was convicted on an indictment which charged her with grand larceny, committed by stealing sixty-four dollars ($64), the personal property of one Luther Stevens. One of the grounds of the motion for a new trial is that the verdict is contrary to the evidence.
The evidence tended to show that the appellant, in Sebastian County, Arkansas, some time in November, 1912, did steal the sum of sixty-five dollars ($65), the property of a “certain white man.” But there is no evidence in the record identifying the money which appellant is alleged and shown to have stolen, as the property of Luther Stevens, as charged in the indictment. There is a total lack of evidence to show that the “white man,” whose money appellant is alleged to have stolen, was Lnther Stevens.' In indictments for larceny, th'e allegation of ownership is material and must be proved as alleged. Correctly naming the owner is essential to identify the stolen property. Fletcher v. State, 97 Ark. 1; Merritt v. State, 73 Ark. 32. See also Andrews v. State, 100 Ark. 184; McCowan v. State, 58 Ark. 17; Blankenship v. State, 55 Ark. 244.
As the evidence failed to sustain the allegation that the money was the property of Luther Stevens, the judgment' must be reversed and the cause remanded for a new trial. | [
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Hart, J.,
(after stating the facts). In the case of Earnest v. St. Louis, Memphis & Southeastern Railway Co., 87 Ark. 65, we held that by the common law, the death of a human being could not be made the subject of a civil action, and that where a stautory right of action is given, which did not exist at common law, and the statute giving the right also fixes the time within which the right may be enforced,.the time so fixed becomes a limitation or condition upon the right of action, and will control. Mr. Tiffany says that, inasmuch as the act which creates the limitation also creates the action to which it applies, the limitation is not merely of the remedy, but is of the right of action itself. Tiffany on Death by Wrongful Act, (2'ed.), section .121.
Section 6290 of Kirby’s Digest, commonly known as Lord Campbell’s Act, upon which the claim of the plaintiffs is based, contains the proviso, “that every such action shall be commenced within two years after the death of such person.” Inasmuch as the statute creates no saving clause for the benefit of persons under disability, the infancy of the plaintiffs at the time-the cause of action accrued, does not postpone the running of the statute. 13 Cyc. 340; Tiffany on Death by Wrongful Act, (2 ed.), sections 121, 122. It follows that the bringing of the suit within two years from the death of the person whose death has been.caused by the wrongful act is made an essential element of the right to sue. As said in the case of The Harrisburg, 119 XJ. S. 199, “The time within which a suit must be brought operates as a limitation of the liability itself as created, and' not of the remedy alone. It is a condition to' sue at all.” But counsel for plaintiffs claim that the proviso of section 6290, above quoted, is repealed by section 5075 of Kirby’s Digest, which reads as follows:
“If any person entitled to bring any action, under any law of this State, be, at the time of the accrual of the cause of action, under twenty-one years of age, or insane or imprisoned beyond the limits of the State, such person shall be at liberty to bring such action within three years next after full age, or such disability may be removed.”
We can not agree with his contention. Section 5075 of Kirby’s Digest, was passed April 17, 1899, and was entitled, “An Act to amend section 4833 of Sandels & Hill’s Digest,” and is also a part of the chapter relating to the statute of limitations. In the case of Sims v. Cumby, 53 Ark. 418, it was held that the general saving clause in the act of December 14, 1844, in favor of infants and persons under disability was limited in terms to laws then in force, and was inapplicable to statutes of limitations subsequently enacted. The act of April 17, 1899 (section 5075), was passed to remedy this defect, and it also extended the time for bringing actions of persons under disabilities mentioned in the section to a period of three years after their disabilities were removed. Section 5075 is a part of our general statutes of limitation, and does not refer to section 6290, and does not expressly repeal it. In Coats v. Hill, 41 Ark. 149, the court said:
“Repeals by implication are not favored. To produce this result, the two acts must be upon the same subject, and there must be a plain repugnancy between their provisions; in which case, the later act, without the repealing clause, operates, to the extent of repugnancy, as a repeal of the first. Or, if the two acts are not in express terms repugnant, then the later act must cover the whole subject of the first and embrace new provisions, plainly showing that it was intended as a substitute for the first.” See also, C., R. I. & P. Ry. Co. v. McElroy, 92 Ark. 600; Welch Stave & Mercantile Co. v. Stevenson, 92 Ark. 266; State v. Southwestern Land & Timber Co., 93 Ark. 621.
In the application of this rule, we do not think that section 5075 repeals' the proviso contained in section 6290. As we have already seen, the limitation contained in the proviso of section 6290 is n’ot merely of the remedy, but is of the right of the action itself. We can not find that the Legislature, by the passage of section 5075, intended to repeal the proviso contained in section 6290. The two statutes relate to different subjects, and there is no necessary repugnancy between their provisions. It follows that this action is barred under section 6290, of Kirby’s Digest.
The complaint shows on its face that the action was not brought within the two years required by the statute and in the case of Earnest v. St. Louis, Memphis & Southeastern Ry. Co. 87 Ark. 65, we held that the defendant may avail himself of the objection by demurrer. The reason for this is well stated in Hanna v. The Jeffersonville Railroad Co., 32 Ind. 113. The court said:
“It only remains to ascertain whether the point can be raised in this case by demurrer to the complaint. Ordinarily, statutes of limitations must be pleaded though the facts appear by the averments of the complaint. The reason for this is, that usually there are exceptions to statutes of limitations, and the plaintiff should therefore have the opportunity of replying to the plea, so that he may show that the case is within any of the exceptions. To compel him to make these averments in the complaint, would tend to inconvenient and needless prolixity. But in the case before us there are no exceptions, and consequently there is no reason why the defendant should plead the fact. There could be no reply avoiding the plea. The complaint brings upon the record all the facts concerning the matter that could be of service to either party* and the answer would be but a repetition of them, accomplishing no useful end. We think, therefore, that the question was properly raised by the demurrer, and that it was correctly sustained. ’ ’
The judgment will be affirmed. | [
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Kirby, J.,
(after stating the facts). It is contended that there was no contract of employment between said special school district and appellee, authorizing him to teach the school, and that the purported contract was void, because appellee was not a regularly licensed teacher in the State of Arkansas at the time of the signing of the contract and because same was not executed in triplet form, as the statute requires.
The undisputed testimony shows that the action of the school board authorizing the employment of appellee and fixing the terms thereof was participated in by all six of the directors of the district, and it makes no difference whether it was taken at a regular or a special meeting, or with or without notice, as all were present and participating as a board of directors at the time. School Dist. v. Allen, 83 Ark. 491.
A contract was drawn in accordance with the authority, fixing the terms for employment, signed by the president and secretary, of the board, and forwarded to appellee for his signature. He immediately signed and returned it to the board. This contract bears date of April 22, 1912, and stipulates that the teacher is employed to teach school for a term of six months, beginning October 28,1912, and at the time of the execution of it appellee was not a regularly licensed teacher in the State, although he had been for some years before, his present license being granted June 8, 1912.
The law authorizing the employment of teachers by the board of directors of special school districts provides that they “shall have power * * * to hire teachers for all public schools of the district; * * * provided, no teacher shall be employed who does not hold a certificate from the State Superintendent or County Examiner.” Section 7684, Kirby’s Digest.
And the general law, authorizing the employment of teachers of common schools embodied in section 7615, of Kirby’s Digest, as amended by act of April 24, 1911, provides:
‘ ‘ They shall hire for and in the name of the district only such teachers as have been„ licensed according to law, and employ no person to teach in any common school of their district unless such person shall hold, at the time of commencing his school, a certificate and license ■ to teach, granted by the county examiner or State Superintendent ; and they shall make with such teacher a written contract in triplet form, specifying the time for which the teacher is to be employed, the wages to be paid per month, and any other agreement entered into by the contracting parties, and shall furnish the teachers with a duplicate of such contract, keep the original, and immediately file an exact copy of such contract in the office of the county treasurer of the county in which the contract is to be enforced; and the county treasurer shall not pay the warrants of any school district until a copy of such contracts have been filed with him. ’ ’
The general law will be considered in the construction of the one relating to employment of teachers in special school districts (section 7695, Kirby’s Digest), and, from the reading of both, it is clear that it was the intention of the Legislature not to authorize the employ ment of teachers for the common schools of the State, who are not qualified to teach therein, and whose qualifications do not appear from the holding of a teacher’s license. If it had been the intention that no person should be employed to teach in any of the common schools of the State unless he should hold a teachers’ license at the time of the employment and execution of the contract, without regard to his holding such license at the time of the commencement of the school, there was no reason to go further and provide, “And employ no person to teach in any common school in their district unless such person shall hold, at the time of commencing his school, a certificate and license to teach, etc.”
It was the evident purpose that none but qualified and duly licensed persons should teach in the common schools, but it is not necessary that such teacher shall have a license to teach upon the date of the execution of the contract, if the school is not to commence until thereafter; the contract of employment may be entered into and will be a valid contract, subject to be avoided by the failure of the person to provide himself with a teacher’s license before the date fixed for commencement of the school. The teachers and the directors know the law, and that none can teach who do not hold a teacher’s license, and the contract is entered into with that understanding, and will be void if the license be not procured before the date for the commencing of the school.
The law further provides that they shall make with the teacher a written contract in “triplet form” specifying the terms of the contract, “and shall furnish the teacher with a duplicate of such contract, keep the original and immediately file an exact copy of such contract in the office of the county treasurer of the county in which the contract is to be enforced; and the county treasurer shall not pay the warrants of any school district until a copy of such contracts have been filed with him. ’ ’
There can be no doubt but that the action of the board in specifying the terms of employment and authorizing the making of the contract and the execution of the written contract by tbe president and secretary of tbe board of directors for the district, and by tbe teacher constituted a binding contract subject only to be invalidated by tbe failure of tbe teacher to procure tbe requisite license before tbe date fixed for commencement of the school, unless tbe provisions of tbe statute requiring tbe directors to make a written contract with tbe teacher ‘ ‘ in triplet form,” and furnish him a duplicate of such contract and file an exact copy of tbe contract in tbe office of tbe county treasurer are mandatory. Neither can there be any doubt under said section of tbe statute, but that tbe treasurer is prohibited from paying tbe warrants of any teacher of any district until a copy of tbe teacher’s contract has been filed with him, in accordance with tbe provisions of tbe statute, but it is made tbe duty of tbe board .of directors to file a copy of tbe contract with tbe treasurer, and to furnish tbe teacher a duplicate thereof to be kept by him, tbe original contract being required to be kept by tbe school directors.
Tbe terms of tbe agreement between tbe parties are included in tbe written contract signed by them, and when it was reduced to writing and signed by tbe parties, it became effective and binding under tbe law, and tbe fact that a director or an officer of tbe school board refused thereafter to do bis duty and execute duplicate contracts that tbe teacher might sign in order that tbe law might be fully complied with relative thereto could not release tbe district from tbe performance of tbe contract entered into. School District v. Allen, supra; McShane v. School District, 70 Mo. App. 624.
Although tbe teacher can not draw bis pay from tbe county treasurer upon tbe warrants of tbe district until tbe statute be fully complied with, by filing an exact copy of tbe contract with him, be could, by proper procedure, compel tbe filing of such copy with the treasurer or tbe payment of bis salary in accordance with tbe terms of bis contract after a performance of it.
Tbe decree is affirmed. | [
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Smith, J.,
(after stating tbe facts). As an owner of property within tbe improvement district, appellee bad tbe right to sue to prevent the city from wasting, or mismanaging, or improperly diverting, tbe funds of tbe improvement district. Russell v. Tate, 52 Ark. 541; Jacksonport v. Watson, 33 Ark. 704; section 13, article 16, of tbe Constitution; section 5485 of Kirby’s Digest. But be bad no right to demand that tbe court order tbe city to construct a water main to bis property, and all other questions involved in tbe original decree were collateral to that one. Browne v. Bentonville, 94 Ark. 80. As to tbe court’s order, directing tbe action to be taken with reference to tbe outstanding warrants, payable out of tbe Avater fund, and in regard to their cancellation, it is sufficient to say that their holders are not parties to this proceeding, and tbe court was therefore without authority to make any order wbicb affects their validity.
We are of tbe opinion that tbe court had tbe authority to direct that these funds be separately kept, and accounted for, and bad tbe authority to make proper orders to enforce that decree, but we think there has been a substantial compliance with its terms, so far as tbe question could be decided Avith tbe parties before tbe court.
It appears that accounts have been separately kept, and that the $1,000 Avas actually paid out of tbe general revenue fund to the credit of the waterworks fund, although we do not think the court had the authority to administer and direct the expenditures of the city’s revenue subsequently collected. The courts can not take upon themselves the burden and responsibility of administering the affairs of the municipalities of the State in the disbursement of their public revenues. The rule in such cases is well stated in the opinion in the former appeal of this case. Browne v. Bentonville, 94 Ark. 80.
The decree of the court is therefore reversed and this supplemental complaint is dismissed. | [
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Hart, J.,
(after stating the facts). The plaintiff, in his complaint, bases his right to recover on the alleged fraudulent representations made in the letters set out in the statement of facts. The particular representations which he alleges were false and which were made with intent to deceive him, and which were relied upon by him to his loss and injury, are contained in a letter written by the defendants to Carlton on the 28th day of January, 1909. In that letter, the defendants stated that the assets of the Southern Insurance Company were in good condition and ample to meet the outstanding claims. In it the defendant stated: “We have arranged with the Fidelity & Deposit Company for them to assume payment of any losses that may occur under Southern policies in connection with liabilities that now exist to the extent of $20,000.”
The natural effect of this statement would be to repress any further inquiry upon the part of the plaintiff as to the solvency of the insurance company, and to lull him into a sense of security as to his policy. Bepresentations of this character, if false and made with intent to deceive the plaintiff, and relied upon by him to his loss and injury, are actionable. The undisputed evidence, however, shows that the statement was true in every respect, and was made by the defendants in good faith. The receiver had in his hands four thousand dollars of the assets of the company. In addition to this, he had made an agreement with the surety company to deposit in the chancery court the sum of $20,000, the full amount of the bond upon which it was liable as surety, and under the agreement, the amount of the bond was to be administered as assets of the company. This made the sum of $24,000 as available assets of the company at the time the letter was written. The claims proved and allowed by the court amounted to $22,170.64. Thus, it will be seen that the assets were sufficient to pay all the outstanding claims against the company. It is true the chancellor disallowed the claim of the plaintiff, but under the ruling of this court in the case of the Federal Union Surety Co. v. Flemister, 95 Ark. 389, his action in so holding was error. In that case, which was decided after the chancellor had refused to allow the claim of the plaintiff in the present case, the court, in deciding a precisely similar question, held :
“1. The courts of this State have no authority to dissolve a foreign corporation, but may appoint a receiver to collect and distribute its assets in this State to its creditors.
“2. Where there was no adjudication of the insolvency of a foreign mutual insurance company, and no decree dissolving the corporation, but there was an order of a chancery court appointing a receiver to collect and distribute its assets in this State to the creditors, a policy holder whose policy has not been cancelled, may recover for a loss which accrued after the receiver’s appointment. ’ ’
So it may be said that if the plaintiff had prosecuted an appeal from the action of the court in not allowing his claim, he would have recovered. Not having done so, he is in no attitude to complain of the defendants. Cotnam presented his claim to the chancellor for allowance, and the chancellor disallowed it on the ground that the loss occurred after the receiver had been appointed. Cotnam notified him of the ruling of the chancellor and of his reasons for so holding. It was not then the duty of Cotnam to prosecute an appeal from the decree of the chancellor. It was the duty of the plaintiff, himself, to do that. Hence, the loss suffered by the plaintiff arose from his neglect to prosecute an appeal from the decree of the chancellor refusing to allow his claim, and his loss did not result from any false representations made to him by the defendants in regard to the ability of the insurance company to pay losses on claims outstanding against it. The representations made by the defendants to the plaintiff in the letters set out in the statement of facts were true in every respect, and did not cause his loss in the present case. The testimony on this question is undisputed, and no inference unfavorable to the view we have expressed could be deduced from it.
It follows that the court erred in not directing a verdict for the defendants as requested by them, and for this error, the judgment must be reversed, and, it appearing that the case has been fully developed, and that no other testimony favorable to the plaintiff could be obtained on a new trial of the case, it is ordered that the •complaint of the plaintiff be dismissed. | [
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Hart, J.,
(after stating the facts). It is claimed by counsel for the defendants that the nine hundred dollars paid by Hulsey, the lessee, to Mrs. McClure, the les sor, was in the nature of a deposit by the tenant to secure the performance of stipulations contained in the lease and that upon their eviction by Mrs. McClure they were entitled to recover the balance of same, after deducting the rent due Mrs. McClure. They rely upon the case of Cunningham v. Stockton, 81 Kan. 780; 106 Pac. 1059, and other cases of like character. In that case the court said:
“The lease did not contain an express statement that the money advanced should constitute a deposit to insure performance by appellee, but the advancement of so large an amount, the payment of the same before the construction of the building was begun and about six months before possession could be obtained, and the provision that the amount advanced should be applied on the rental for the last year of the term clearly indicated that it was. a deposit to insure performance, by appellee.”
The monthly rental in that case was $350, and the amount paid in advance and stipulated to be applied on the rent for the last year of the term was $4,200.
In the instant case the facts are essentially different. The defendants refused to pay the rent after it became due and contended that the nine hundred dollars was to sechre the payment of the monthly instalments of rent after they matured. Their position leads to the conclusion that they, as assignees of the lessee, would be entitled to remain in possession without payment until their default amounted to a sum equal to nine hundred dollars, and that Mrs. McClure could not evict them for such default since she could apply the deposit in satisfaction of the delinquent rent. In discussing a similar contention, in the case of Barrett v. Monro, 40 L. R. A. (N. S.) 763, the Supreme Court of Washington said:
“This construction would read into the lease a stipulation which it does not contain. Had appellants thus applied the deposit, and had the default continued until it was .exhausted, they would have been without security for future :rent, or for damages which might result from' a- further breach, and thereafter would have been subjected to a constant liability of losing their lease for the remainder of the term, without certainty of obtaining another tenant at an equally remunerative figure. They would also have been subjected .to any damages they might sustain in recovering possession, and by reason of depreciation in rental value for the remainder of the term. It was respondent’s duty to make the stipulated monthly payments.”
It'is a fundamental principle of law that courts do not make contracts for parties but only enforce their rights under contracts made by them. The contract under consideration here does not provide that the nine hundred dollars should be returned to the lessee after the termination of the lease, nor can it be gathered from the terms of the lea-se itself, or from them when considered in the light of the attendant circumstances that it was the intention of the parties to secure performance of the stipulations contained in the lease by a deposit of the nine hundred dollars. By the direct and express terms of the lease itself, the payment of the nine hundred dollars was simply a payment in advance of the rent. At the time ’ the defendants refused to pay the rent the lease had over four years to run and it will be noted that" the payment of the nine hundred dollars was made by the original lessee. He still stands liable to his lessor for the rent after it accrued subsequently to his assignment of his lease. This is so because Mrs. McClure did not accept a surrender from him and agree to release him from liability. Underhill on Landlord & Tenant, Yol. 2, § 650; Tiffany on Landlord & Tenant, Vol. 1, page 1130. By the express terms of the contract the nine hundred dollars paid by the original lessee to the lessor was, as we have already seen, simply a payment in advance of rent and the contract, not containing any provision that it should be paid back, and it is not recoverable by the defendants. See Bloch v. Tucker, 107 Ark. 349; Werner v. Padula, 49 App. Div. N. Y. 135; Forgoston v. Brofman, 84 N. Y. Supp. 237.
The facts in this case were undisputed and presented for the decision of the trial court a question of law only. The trial court certified that a short statement of facts might properly have been prepared and this the defendants offered to do, but they were, required by plaintiff .to put into the record the detailed testimony of the witnesses at a cost of $41.70.
Therefore, under rule No. 15 of this court, the cost so incurred, viz.,. $41.70, will be taxed against the plaintiff. It follows that the judgment will be affirmed. | [
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Per Curiam.
This action involves the title to real estate. John R. Jarratt filed his petition in the chancery court of Lee County to confirm his title to the tract of land in controversy, and appellant intervened, claiming title to the land and objecting to confirmation.
The cause was prosecuted as an adversary proceedr ing, and resulted in a decree in favor of plaintiff, which was rendered on November 21, 1911, a day of the November term, 1911, of said court. The clerk failed to enter the decree upon the record until the next March term of court, but entered it on March 20, 1912.
Appellant filed with the clerk of this court on March 3, 1913, a transcript of the record, and prayed an appeal which was granted by the clerk, and on March 10 sug.gested the death of John R. Jarratt and moved that the cause be revived in the name of his widow and heirs at law.
It appears that John R. Jarratt died on January 1, 1912, which was more than one year before the motion to revive was filed. '
On May 8, 1913, the chancery court of Lee County, on motion of the widow and heirs of John R. Jarratt, made an order directing the entry of said decree as of November 21, 1911, the true date of its rendition. This order was made upon notice to appellant, who was present by attorney.
The case is presented now on motion to revive, and the question also arises whether the appeal was.taken in time to give this court jurisdiction.
The statute provides that “-an appeal or writ of error shall not be granted except within one year next after the rendition of the judgment, order or decree sought to be reviewed, unless the party applying therefor was an infant,” etc. Kirby’s Digest, § 1199.
The question presented, therefore, is whether the time for appeal runs from the date of the rendition of the judgment or the date of its entry.
Counsel for appellant cites in his brief numerous authorities holding that the time for appeal runs from the date of the entry of the judgment and not from the date of its rendition.
It may be conceded that the weight of authority is on that side of the question; but there are authorities holding to the contrary, and our court has already taken a position on the side which holds that, under a statute providing for appeal within a given time after the rendition of the judgment, the time begins to run from that date, and not from the date of the entry. Ex parte Morton, 69 Ark. 48. We think that view is undoubtedly correct, for the language of the statute is plain. There is a well-defined distinction between the rendition or pronouncement of a judgment and the entry thereof upon the record, and the law-makers have seen fit to give a certain time running from the date of the rendition of the judgment.
In California the statute was the same as our statute on the subject, and the courts of that State held that the time for appeal ran from the date of the rendition of the judgment. The California cases were cited with approval by Judge Riddick in delivering the opinion in the case of Ex parte Morton, supra..
We are thus committed to that rule.
It is argued that the rule ought to be otherwise, for the reason that it is necessary to present to this court a transcript of the judgment or decree appealed from in order to give the court jurisdiction and that that can not be done until the judgment is entered.
If we concede that reasoning to be sound, still it does not help that view of the question. The law-makers have prescribed a certain time within which to take an appeal and perfect it, and it is the duty of the appellant to take all necessary steps to perfect the record within that time which was deemed sufficient by the law-makers for that purpose. If the judgment or decree has been omitted from the record, it is within the rights of the losing party to move for an entry of it, and it is his duty to do so if he desires to appeal from it. It devolves upon him to take whatever steps are necessary to perfect his appeal.
It is further insisted that the chancery court should not have made an order for a nunc pro tunc entry until the cause had been revived in the name of the widow and heirs.
After the rendition of the judgment the case was at an end so far as the successful party was concerned, and it was not essential to the enforcement of the judgment that it should be entered of record. Ex parte Morton, supra. The chancery court had no jurisdiction to revive the cause after it was ended, but those who succeeded to the rights of the plaintiff, that is to say, his privies in estate, had the right to move the court to make an order for the entry of the judgment as of the true date of its rendition. The only way for the losing party to proceed was to appeal within the time prescribed by statute and move here for a revivor. Temple v. Culp, 105 Ark. 222.
It follows, therefore, that the appeal was not taken within the time prescribed and that this court has no jurisdiction of the cause, and the appeal is hereby dismissed. | [
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McCulloch, C. J.
Appellants sued appellee in the circuit court of Pulaski County to recover, upon written contract, the sum of $3,000 for the lease of a patented machine or device called a “Rectigraph,” used in photographing records.
Appellee denied personal liability under the contract, and the case was tried before a jury. Both sides, without asking that the disputed questions of fact be submitted to the jury, requested the court to give a peremptory instruction in their respective favor, and the court gave a peremptory instruction in favor of appellee.
The case stands here, therefore, upon the sole question of the legal sufficiency of the evidence to sustain the verdict in appellee’s favor. St. Louis S. W. Ry. Co. v. Mulkey, 100 Ark. 71.
In March, 1907, appellee and certain other persons joined in an effort to organize a corporation, with a capital stock of $25,000, to engage in the business, at Little Rock, of abstracting titles to real estate in Pulaski County. A subscription contract was reduced to writing, dated March 28, 1907, whereby the subscribers agreed to take stock for the organization of the corporation, to be known as the “Title Guaranty Company,” and stipulated that the subscriptions were conditioned upon their being bona fide subscriptions for at least $20,-000 to the capital stock. Several persons, including appellee, signed the contract as subscribers; but the subscriptions did not amount to $20,000, the stipulated sum. Appellants owned or controlled certain territory, including Pulaski County, Arkansas, for the use of the Rectigraph, and on April 2, 1907, appellants and appellee entered into the following written contract:
“This indenture, witnesseth, that George Vaughan, as agent and trustee for the Title Guaranty Company, a corporation to he organized under the laws of Arkansas, for the purpose of doing an abstract business in Pulaski County, Arkansas, this day agrees to and with George R. Belding and J. A. Stallcup, owners of Lease No. 23 of the Rectigraph Company of Oklahoma City, for the use of the Rectigraph for Pulaski County, Arkansas, to pay to said Belding & Stallcup on May 1,1907, or earlier upon the organization of said corporation the sum of three thousand dollars, for said lease. And the said Belding & Stallcup, in consideration of the said agreement, have this day subscribed for forty shares of stock in the said corporation. Witness our hands in duplicate this 2d day of April, 1907. (Signed) Geo. Vaughan, Geo. R. Belding, J. A. Stallcup.”
Upon the execution of this contract appellants signed the subscription contract, whereby they took forty shares of the capital stock of the proposed corporation.
Efforts were continued to procure subscribers, but there was not enough obtained to raise the requisite amount of $20,000; therefore the plan failed and was finally abandoned. The effort was, however, continued during a considerable period of time, and in the meantime there was much correspondence between the parties hereto concerning the matter. The manufacturers of the machine sent one to Little Rock, where it was set up and demonstrated by their agent, sent for that purpose, and it remained here in possession of appellee. After the abandonment of all effort to organize the new corporation there was an effort made to dispose of the machine, or, rather, the lease thereof, to another corporation engaged in the business of abstracting titles, and considerable correspondence took place between the parties hereto with respect to that, but nothing came of it, and appellants demanded payment of appellee, which being refused this action was instituted.
It is insisted that the written contract amounts to a personal obligation on the part of appellee to pay to appellants the sum of money named on a certain date, “or earlier upon the organization of said corporation,” and that parol evidence is inadmissible to vary or contradict the terms of the written instrument by showing that it was not intended as a personal obligation of appellee.
Our conclusion is that the two instruments herein-before referred to, that is to say, the written subscription list and the contract for the lease of the Rectigraph, were executed contemporaneously so far as the parties to this controversy are concerned, and should be considered together in interpreting the meaning of the contract sued on. No rule of evidence is violated in considering the two together in determining the true intention of the parties. Vaugine v. Taylor, 18 Ark. 65; Railway Co. v. Beidler, 45 Ark. 17; Ford Hardwood Lumber Co. v. Clement, 97 Ark. 522. When thus considered, it is manifest that this contract was not intended as a personal obligation, unconditional, of appellee Vaughan, but rested upon the condition that the proposed corporation should be organized.
Appellants invoke the familiar rules that one becomes personally liable who acts as agent for an undisclosed principal, or who assumes to act for a principal who does not exist; but neither of those rules are applicable to the facts of the case, for appellee did not act for an undisclosed principal, nor did he assume to act for a principal who did not exist. His undertaking was to act for the principal (the proposed corporation) when it came into existence, and not before. Therefore, he is not liable personally. Hersey v. Tully, 8 Colorado Appeals, 110, 44 Pac. 854.
If the corporation had, in fact, been organized pursuant to the terms of the- subscription contract, then the obligation of appellee would have been complete, for he undertook to pay as the agent of the corporation when organized, and if, upon the occurrence of that event, ■authority from the corporation should have been withheld, then his personal obligation and liability would have attached, for his undertaking was, as before stated, to pay, as agent of the corporation, as soon as it was organized. That would have constituted a case of one who had impliedly contracted that he had authority, in the contingency named, to act for the corporation, and the obligation would have rested on him to make good the contract if the actual authority should be withheld.
It is also argued that appellee is liable as a promoter of the proposed corporation who induced a third party to extend credit, and is personally liable.
The rule upon which liability in that case rests is, however, limited to dealings with strangers who act in expectation of payment from the prospective corporation. 2 Cook on Stock, Stockholders, etc., § 705.
The rule does not apply in this case for the reason that appellants became equally interested with appellee in the promotion of the affairs of the proposed corporation, and there is no reason why either one should be liable to the other except under the strict letter of the contract. If appellee had induced appellants to accept an unconditional obligation of the proposed corporation, then there would be reason for holding him personally liable as a promoter of the corporation; but that is not the case here, for, as before stated, the parties were jointly interested in the enterprise, and by the terms of the contract itself the obligation to pay was based on the condition that the corporation should thereafter be organized. The rule with reference to liability on that score is stated by the author of a recent textbook as follows:
“Promoters are merely persons who, for purposes of their own, bring about the formation of the corporation. In assuming to make contracts in its name or behalf before it comes into existence, they do not stand in the relation of agency, and they represent only themselves, inasmuch as a nonexisting body can not have agfents.” Alger on the Law of Promoters and Promotion of Corporations, p. 199.
Stress is laid upon the language of the'contract stating the promise to pay on a definite date “or upon the organization of the corporation” as characterizing the obligation as an absolute one to pay on the date named, whether the organization be completed or not. Authorities are cited in suits based upon promissory notes where similar obligations are construed to amount to an absolute one to pay on the date named, or earlier upon the happening of a certain contingency. Ordinarily that is the proper interpretation of a written obligation for the payment of money; but when this contract is read as a whole and in the light of the attending circumstances, it is manifest, as we have already shown, that it was not intended as an absolute and unconditional obligation to pay but was merely an obligation to pay upon the organization of the corporation, which the parties to this contract were jointly interested in organizing. After the abandonment of this project there were further negotiations between the parties looking to a sale to another abstract company, but the evidence does not establish any contract or obligation on the part of appellee except the written contract which we have already quoted.
Upon the whole, we are convinced that the trial court properly interpreted the contract between the parties and that the evidence was legally sufficient to sustain the verdict. The judgment is therefore affirmed. | [
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Wood, J.
The appellant was convicted of the crime of receiving stolen property, and sentenced to one year in the penitentiary. The indictment (omitting formal parts), is as follows:
The grand jury of Lafayette County, in the name and by the authority of the State of Arkansas, accuse the defendant, Brooks Brown, of the crime of grand larceny, committed as follows, towit: The said defendant, on the 10th day of February, 1913, in Lafayette County, Arkansas, six (6) pairs of men’s shoes, of the value of $5 per pair, the property of the St. Louis Southwestern Railroad Company, feloniously did steal, take and carry away, against the peace and dignity of the State of Arkansas.
The grand jury of Lafayette County, in the name and by the authority of the State of Arkansas, accuse the defendant, Brooks Brown, of the further crime of knowingly receiving stolen goods, committed as follows, towit: “The said defendant, on the 10th day of February, 1913, in Lafayette County, Arkansas, six (6) pairs of men’s shoes, of the value of $5 per pair, then and there lately before then, unlawfully and feloniously stolen, taken and carried away; did then and there, unlawfully have and receive, with the intent to deprive the true owner thereof, he, the said Brooks Brown, then and there, well knowing that the said six pairs of men’s shoes had been so unlawfully and feloniously stolen, taken and carried away, as aforesaid. The crime charged in this count being the same as the crime charged in the first count of this, indictment, but charged in a different mode, against the peace and dignity of the State of Arkansas. ’ ’
The indictment alleges that the shoes were the property of the St. Louis Southwestern Railroad Company. The proof tended to show that the shoes, at the time the same were stolen, were in the possession of the St. Louis Southwestern Railway Company. Appellant contends that proof that the shoes were in the possession of the St. Louis Southwestern Railway Company, was not proof that they were in the possession of the St. Louis Southwestern Railroad Company, and that therefore, there was a fatal variance between tbe allegation of ownership and the proof thereof.
The appellant also contends that there was no evidence that -the railroad company was a corporation, and that therefore, there was no proof of ownership of the property, as made in the indictment. There was evidence tending to prove that there were only two railroad companies at the town of Stamps, where this offense is shown to have been committed, one being the Louisiana & Arkansas Railroad, and the other, the St. Louis Southwestern Railway Company. It was shown that the St. Louis Southwestern Railway Company was generally known as the “St. Louis & Southwestern,” the “St. Louis Southwestern Railway Company,” the, “St. Louis Southwestern Railroad Company” and the “Cotton Belt;” that if you called it by any one of these names, persons living in the community would understand what railroad was meant.
The statute provides: “That no indictment is insufficient, nor can the trial, judgment or other proceedings thereon, be affected by any defect which does not tend to the prejudice of the substantial right of the defendant on the merits. ’ ’
The alleged variance here, between “Railway Company” and “Railroad Company,” did not prejudice the substantial rights of the defendant on the merits. The allegation was sufficient to advise appellant of the name of the owner of the goods which he is alleged to have received. In Price v. State, 41 Tex. 215, 216, it was held not to be necessary to “set out the charter in the indictment, or allege it to be a chartered company, otherwise than by naming it.” In Calkins v. State, 18 Ohio St. 366, it was held “That the corporate character of the party injured might be proved by reputation, and that it was only necessary to show a corporation de facto.” See also, Fleener v. State, 58 Ark. 98; Burke v. State, 34 Ohio St. 81; State v. Savage, 60 Pac. (Ore.) 610, 616.
It was sufficient to meet the requirements as to ownership to show that the St. Louis Southwestern Railroad Company or Railway Company was doing business at the town of Stamps, and that it had the possession of the shoes at the time that they were alleged to have been stolen, and it was generally known by that name. “If a corporation is alleged as owner, only its cle facto existence need be shown in evidence.” 3 Bish., New Crim. Proc., section 752 (2).
In McCowan v. State, 58 Ark. 17, the indictment charged that the allegation of ownership was that the articles stolen were the property of ‘ ‘ W. L. C. & Co., ’ ’ and we held that this was not a snf&cient allegation of ownership, because it showed that the goods stolen were owned by a firm or partnership — a joint ownership, and in such cases it is necessary that the names of the several persons who compose the firm, or who constitute the joint owners, should be stated. But that case is different from this, because here the allegation shows that the property was owned by the railroad company, which is a sufficient allegation of the corporate character of the alleged owner, and shows on its face that it was not the property of a partnership or joint owners.
In State v. Rollo, 54 Atl. 683 (N. J. Law), it was held that, “An indictment alleging a larceny of goods from a designated corporation, need not specifically allege that the owner of the goods was a corporation, it being sufficient to allege the name by which the corporation was generally known. ’ ’
It is contended by appellant that there was no proof of ownership of the goods alleged to have been stolen, because it was not shown that the railroad company owned the shoes, and there was no allegation that it held the same as bailee. The allegation that, “The shoes were the property of the St. Louis Southwestern Railroad Company,” was sufficient to warrant proof that the railroad company had possession of the shoes as bailee.
“The allegation of general ownership is sufficient to allow proof of special ownership.” Merritt v. State, 73 Ark. 32. Where one is in possession of goods as a common carrier, it is proper to charge ownership in the common carrier, for his possession as bailee is sufficient to warrant an allegation of ownership in him. See 25 Cyc. 89, cases cited in note 94.
The court told the jury that appellant could not be convicted under this indictment for both crimes of grand larceny, and knowingly receiving stolen goods, that there is only one offense charged in the indictment, and that they could only convict him on une offense. The instruction was not technically correct, because the appellant was charged with the offense of grand larceny and also the offens'e of knowingly receiving stolen property. But there was no prejudicial error in the court’s charge to the jury, because, under "section 2231 of Kirby’s Digest, the separate and distinct offenses of grand larceny and knowingly receiving stolen goods, could be joined in one indictment, and the evidence was amply sufficient to sustain the verdict finding the defendant guilty of the offense of knowingly receiving stolen property, of which the jury convicted him.
The statement in the indictment that only one offense was charged, was surplusage, and the court, in embodying this language in its charge, meant no more than that under the proof in the case, the appellant could be convicted of only one offense — that of either grand larceny, or knowingly receiving stolen goods, but that he could not be convicted of both.
Appellant’s motion to require the State’s attorney to elect, was properly overruled, as the offenses could be joined in one indictment. Sec. 2231, of Kirby’s Digest. The motion to arrest the judgment was also properly overruled, because the indictment, in apt language, did charge a public offense, and the appellant was convicted of one of the offenses with which he was charged. Jones v. State, 100 Ark. 195.
Finding no error, the judgment is affirmed. | [
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Wood, J.,
(after stating the facts). The indictment was sufficient. Jones v. State, 61 Ark. 88; Turner v. State, 61 Ark. 359; LaRue v. State, 64 Ark. 144; Green v. State, 71 Ark. 150; Harding v. State, 94 Ark. 65.
The court did not err in excluding the offered testimony of the conduct of Blue Jackson not in the presence of the appellant. It is neither alleged nor proved that Blue Jackson and deceased Woodfork were in a conspiracy to assault the appellant,0 and the testimony is not shown to have been connected in point of time so as to constitute a part of the res gestae. McElroy v. State, 100 Ark. 301-12. Any threats or other conduct of Blue Jackson towards appellant could not have been competent un der appellant’s plea of self-defense, for it could have had no bearing on the question of whether or not the deceased was the aggressor. Jackson v. State, 103 Ark. 21, 145 S. W. 559.
Moreover, the appellant, after the court had announced that it would exclude the offered testimony, did not offer to show what Jackson did or said concerning him.
The testimony of the appellant to the effect that when he returned to the restaurant, Woodfork “kinder put his hands around here and turned,” in connection with the other testimony, in which the position of the deceased was demonstrated before the jury, was sufficient to call for a submission of the question to the jury as to who was the aggressor immediately before the fatal shot was fired. This testimony of appellant tended to show that the deceased, Woodfork, was the aggressor, and the offered testimony of the uncommunicated threats of Woodfork against appellant just prior to the fatal rencounter, and also the offered testimony as to the character of Woodfork for turbulence and violence,, was competent as tending to corroborate the testimony of the appellant on this point.
In Palmore v. State, 29 Ark. 248, we said: “Threats, as well as the character and conduct of the deceased, are admissible when these circumstances tend to explain or palliate the conduct of the accused. These are circumstantial facts which are a part of the res gestae whenever they are sufficiently connected with the acts and conduct of the parties, so as to east light on that darkest of all subjects, the motives of the human heart.” See also, Jackson v. State, supra; Long v. State, 76 Ark. 493.
It follows that the court erred in excluding the offered testimony as to the uncommunicated threats of Woodfork against the appellant, and also the offered testimony of witnesses as to the character of the deceased for turbulence or violence.
The court also erred in not giving appellant’s prayer for instruction No. 12. The uncontroverted evidence, however, of the hppellant himself shows that he was at least guilty of voluntary manslaughter. He armed himself and returned to the scene of the previous altercation when there was no necessity for doing so, and the conduct of the deceased, as shown by the appellant’s own testimony was not sufficient to justify or excuse the homicide. Even according to his own testimony, he acted without due care and circumspection, and that is no testimony to warrant a finding that the killing was done in self-defense. The proof was ample to have sustained a verdict of murder in the first degree, but under the testimony of appellant, the jury could have found him guilty of voluntary manslaughter.
Therefore, appellant was prejudiced in the refusal of the court to allow the offered testimony, and in refusing to give prayer No. 12 of appellant. All possible prejudice, however, from these errors, in our opinion, may' be removed by sentencing appellant for voluntary manslaughter, and if the Attorney Greneral so elects within fifteen days a judgment will be entered remanding the cause with directions to that effect, otherwise the judgment will be reversed and the cause remanded for a new trial. | [
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Kjrby, J.
John W. Hamilton brought an action in replevin in the justice court against Charles A. Rankin for one hundred and one bushels of corn of the value of seventy-five cents per bushel and recovered judgment, from which an appeal was taken to the circuit court and upon the trial there the court directed a verdict against him, and from the judgment thereon he prosecutes this appeal.
It appears from the testimony that Doctor Land phoned Hamilton, asking the price of corn, and upon being told it was seventy-five cents per bushel, directed him to bring him one hundred bushels and deliver it at the barn of Charles A. Rankin. Hamilton brought the corn, threw it into two stalls in Rankin’s barn, in one of which there was already some corn, and, after doing so, took the weight tickets to Doctor Land to get the money. Doctor Land refused to pay in cash, but offered in payment his (Hamilton’s) note for $75, which he (Hamilton) had before made to Mrs. Ed Marks and which had been assigned to Doctor Land. Hamilton refused to accept the note in payment for the corn, giving as his reason that he sold the corn to pay his rent, and that he could not take the note in payment, and demanded the money and also the weight tickets, which Doctor Land refused to return and also to pay the money. He then demanded the corn from Rankin, who refused to give it to him.
Doctor Land testified that hé called Hamilton on the phone, and, after learning the price of corn, told him to bring him one hundred bushels and deliver it to Rankin’s barn. That he sold the corn to Rankin, and offered to pay Hamilton with his note given to Mrs. Marks; that Hamilton refused to take the note in payment and replevied the corn from Rankin. He said also that he owed Rankin on account, and that he sold him the corn, and that Rankin applied it and gave him credit on his account; he did not pay him any money. He did not tell Hamilton before getting the corn that he had the Marks note, nor that he would be expected to take it in payment therefor until after the corn had been put in Rankin’s barn.
It was also shown that appellee bought some other corn after appellant demanded payment of him before the suit was brought and had it thrown in on top of the corn brought to the barn by Hamilton, and that all of the corn was of about the same kind, quality and value, and that there was more than 100 bushels of corn in the stall when the suit was brought.
Rankin testified that he bought the corn from Doctor Land and paid him therefor by crediting the amount to his account, which was the agreement when he purchased it.
There was nothing said as to the time of payment for the corn after the price was learned and the seller was directed by. the purchaser to deliver it at a designated place, and the law presumes that it was a cash sale and. the delivery and payment were concurrent acts and conditions. There was no intention to sell on credit, nor any waiver of the right to receive cash, and no title passed to the vendee, the purchase price not having been paid in ■cash. 1 Mecham on Sales, § § 538-543; Tiffany on Sales, 4 268; 35 Cyc. 325.
Neither can the appellee be regarded as a bona fide purchaser in any event, and entitled to protection as such, having only credited his account against Doctor Land with the purchase price of the corn and paid nothing in fact of value therefor. Ames Iron Works v. Kalamazoo Pulley Co., 63 Ark. 87; Sheeks-Stephens Store Co. v. Richardson, 76 Ark. 282.
The fact that appellee mixed other corn with that ■of appellant before the suit was brought can make no difference in his right to recover, and it was also shown that all the corn was virtually of the same kind, quality .and value. Russ Land & Lbr. Co. v. Isom, 70 Ark. 105; Cobby on Replevin, § § 399, 400.
Appellant was entitled to a judgment for the return ■of the corn or $75, the cash value of it and the court erred in directing a verdict against him. The judgment is reversed and the cause remanded for a new trial. | [
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Kirby, J.
Appellant was charged with being an accessory before the fact to the murder of Charley Moore, and was convicted and sentenced to five years ’ imprisonment in the penitentiary, and from the judgment, he brings this appeal.
The testimony shows that on February 19, 1912, Charley Moore had started to his home from town in a buggy, in company with Will Melton, and that, as they Avere crossing Warm Fork Creek, he was shot from ambush, apparently Avith a shotgun and a rifle, and Melton saw two men running away over the hill. The men ran from the place where the shots were fired, and an examination of the ground showed that two men had been standing there. Moore died that night.
The sheriff and two of his deputies testified. J. B. Hodges, one of them, that the appellant told him he knew who killed Charley Moore; that Eliphns Davis and Howard Sayers killed him, and that he had furnished the guns to kill him with, and they had told him how it was done. Sharp, the other deputy, testified that when he had Jones under arrest in connection with the hank rob-' bery at Mammoth Spring, and told him of the attempted robbery, and that his son, Ben, had been killed, he asked who gave it away, and upon being told it was Lifus Davis, said: ‘ ‘ Then, if they are doing that way about it, I will tell who killed Charley Moore.” Being asked who did the killing, he said, “Lifus Davis and Howard Sayers,” and to the question how he knew, replied, “I know, because I furnished them guns to kill him with. ’ ’
The sheriff testified that the appellant told him he knew who killed Charley Moore, that the plot to kill him was made up at his house and at his table, and that Davis and Sayers had his guns. The sheriff stated, further: “J. E. Davis (Lifus) was convicted at the last August term of the killing of Charley Moore, and I took him to the penitentiary.” This statement was objected to, and the objection being overruled, exceptions were duly saved.
John Caruthers also testified that the defendant stated to him that Lifus Davis and Howard Sayers killed Charley Moore; that they had his guns, and that they would do the work.
Another witness, Mrs. Hutchinson, testified that she was at Doctor Jones’s home about February 15, and saw Howard Sayers and Lifus Davis there; that Doctor Jones, the appellant, went through the room where she was sewing and came back with a shotgun and a riflegun in his hands, and took them out on the porch where Davis and Sayers and his son, Ben Jones, were. That she did not see what he did with them, but when she started home, she had to get up on the hub of the wagon to get on her horse, and saw something wrapped up lying in the wagon, which belonged to Lifus Davis. That, after Charley Moore was killed, she was at Doctor Jones’s home when Lifus Davis came there and wanted her to swear an alibi, and that Ben Jones, Howard Sayers and Doctor Jones were present. She then related how Lifns Davis suggested she should testify in order to show that he was not present at the killing, and that Doctor Jones nodded his head toward her during the conversation, as if to give his approval to the suggestions that she should swear to the statements made, and that there was no truth in the statements. Appellant called at Davis’s house after he had been sent to the penitentiary, and got his gun. He did not testify at the trial.
Certain remarks of the prosecuting attorney were objected to, and after the jury had been out considering the verdict, it returned into court, and asked if they must consider defendant’s confessions against him, to which the judge replied: “Yes, in connection with all the other evidence in the case,” and to the jury’s further question: “Was the evidence of Davis’s conviction of murder in the second degree evidence of Davis’s guilt?” to which the court replied: “Yes.” To all of which the appellant at the time objected and saved proper exceptions.
It is contended, first, that the court erred in permitting the sheriff to testify that J. E. (Lifus) Davis, was convicted of the killing1 of Charley Moore, and that he had taken him to the penitentiary.
It is not denied that such was the fact, but contended only that the guilt of the principal, Davis, could not have been shown otherwise than by the introduction of the record of the conviction. The objection went to the introduction of any such testimony at all, rather than to the manner thereof, and had a specific objection been made, it would doubtless have proved effectual, but none was made.
The conviction of the principal is prima facie evidence. of his guilt on the trial of an accessory before the fact of the crime, but the record of the conviction does not exclude other competent evidence of the guilt of the principal, nor does it prevent the dispute of such record collaterally on the issue of the guilt of the accessory. State v. Mosley, 31 Kan. 357; 1 Wharton, Criminal Law, p. 350. At the common law, the record of the conviction, if it had transpired, conld not be dispensed with, but, under the statute (sections 1560-1, Kirby’s Digest), an accessory before the fact of the crime of murder “shall be deemed in law a principal, and be punished accordingly,” although he must be indicted as such accessory, and can not be charged as a principal offender. Hunter v. State, 104 Ark. 245, 149 S. W. (Ark.) 99. And the common law, relating to the trial and conviction of such accessory, has also been changed, it now being provided that “An accessory before or after the fact may be indicted, arraigned, tried and punished, although the principal offender may not have been arrested and tried, or may have been pardoned or otherwise discharged.” Section 1566, Kirby’s Digest.
. The .testimony is sufficient to show the killing of Charley Moore, by Lifus- Davis shooting him from.ambush with guns furnished him • for the purpose by- the appellant, without' regard'to the sheriff’s statement that he had been convicted of the crime and sent to the penitentiary.
No error was committed by the court answering trie question of the jury that Davis’s conviction of murder in the second degree was evidence of his guilt, for, as already said, the conviction of a principal is prima facie evidence of his guilt, upon the trial of an accessory. .
Neither did the court err in answering the jury’s question, “Must the confessions of the defendant introduced in evidence be considered against him?” by replying, “Yes, in connection with all the other evidence in the case.”
■ ■ There was no intimation of the court’s opinion of the truth or falsity of the confession, or tbe guilt or innocence of the defendant in making such reply; nor au}r suggestion that the confession should be taken as true, but only that the jury should consider it as evidence in connection with all the other evidence in the case.
Some remarks of the prosecuting attorney, objected to,, were invited, and were not more than a statement of his opinion from the evidence in the case, and others, upon .being objected to, were withdrawn, and the jury directed to disregard them,'and no prejudice could have resulted to the defendant therefrom.
Finding no prejudicial error in the record, the judgment is affirmed. | [
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Hart, J.
Appellant prosecutés this appeal to reverse a judgment rendered against it in favor of appellee for damages for personal injuries alleged to have been sustained by him by reason of the negligence of the appellant. This is the second appeal in the case. The opinion on the former appeal is reported in 104 Ark. 236, under the style of the St. Louis, Iron Mountain & Southern Ry. Co. v. Wirbel.
On the 15th day of December, 1909, Harry Wirbel went to the office of the master mechanic of the appellant’s line of railway at McGfehee, Ark., for the purpose of securing employment as a locomotive fireman. The office of the master mechanic was situated in the yards of the company, and the person in charge of the office directed Wirbel to seek the master mechanic in the yards. Wirbel went out into the yards, and went down a path running by the coal chute. He saw a door open there, and asked the man who was running the machine if he had seen the master mechanic. About that time the coal- hoisting machinery broke, and Wirbel was severely injured thereby.
The evidence adduced in his behalf tends to show that the machinery was defective, and that appellant had been advised of that fact. R. McCuen testified that he worked for appellant in the capacity of engineer and coal chute fireman at McGehee during the latter part of October and November, 1909. He said that the master mechanic hired the fireman, and that he was hired in the yard. That he did not know Avhether or not it was the custom of the master mechanic to hire firemen in the yards or in-his office. Joseph Paffe was the engineer and fireman in charge of the coal-hoisting machinery at the time Wirbel was injured, and had been so employed for about fifteen days. His deposition taken on interrogatories and cross interrogatories, was read in evidence at the trial. We copy from his direct examination the folloAving:
Q. Do you' know whether or not the master mechanic was in the habit of transacting business outside of his office and in the yards of the company at McGehee ?
A. Yes; the master mechanic did transact all kinds of business outside of his office, and in the yards at Mc-Gehee. As a matter of fact, he was in the yards a great part of the time , and transacted the greater part of his business, and that fact was generally known and acted upon.
Q. Was the master mechanic, or any other official of the company, hiring firemen at McGehee during the month of December, 1909, or at any other time or times %
Objected to by counsel for defendant on the ground that the witness has not shoAvn that he was qualified to answer this question. The objection was overruled by the court and the defendant, at the time, duly saved its exceptions.
A. Yes; the master mechanic was hiring firemen at McGehee in December, 1909, and both previous to and subsequent to December 15, 1909. That was part of his business, and he hired them in his office, in the yard, or anywhere else he saw them.
On cross examination, he was asked:
Q. Did you ever see the master mechanic employ locomotive firemen in the railway company’s yards, outside of Ms office?
A. No; I never saw Mm hire anybody.
Here counsel for defendant renewed Ms objection to the testimony of the master mechanic employing firemen in the yards of the company.
Q. Did you ever see the master mechanic at Mc-Gehee hire a locomotive fireman at all, inside of Ms office or outside? If you did, state when it was, where it was, and who the fireman was ?
A. I have already answered this question.
The testimony on the part of the appellant showed that the master mechanic had authority to employ firemen, but that he could only do so in Ms office upon written application filed by the person seeking such employment. That it was against the rules of the company for Mm to employ them in the yards of the company.
On the former appeal, the court held that if the master mechanic had authority to employ firemen, and was accustomed to doing so anywhere in the yards where he might be found, and the person in charge of the office of the master mechanic directed Wirbel to seek him in the yards, Wirbel had a right to rely upon the invitation, and it was the duty of appellant to exercise ordinary care to protect Mm from injury while he was seeking the master mechanic. The court held, further, that if he was injured by the negligence of appellant wMle so engaged, and while in the exercise of ordinary care himself, appellant would be liable for the injury.
The existence of a custom on the part of the master mechanic of employing firemen in the yards of the company at McGehee was a question of fact for the jury, and the court submitted it to them under the evidence stated above. Counsel for appellant contend that this was error, and that it was error to admit the testimony of Mr. Paffe to the effect that the master mechanic at McG-ehee was accustomed to hiring firemen in the yard's. A custom must be certain, uniform, definite and known, and the existence of a particular custom of the kind under consideration here may be testified to by any person who possesses knowledge of the custom. For instance, as applied to the present case, if one or more persons had knowledge that the master mechanic commonly and uniformly performed the duty of hiring locomotive firemen in the yards of the company at McGehee for a certain and definite period of time, such testimony would establish a reasonable presumption or inference that the master mechanic, in so-doing, was acting in the line of his duty, as a matter of custom, acquiesced in by the appellant for the purpose of its business. See St. L., I. M. & S. Ry. Co. v. Hendricks, 48 Ark. 177; see also St. L., I. M. & S. Ry. Co. v. Caraway, 77 Ark. 405. The difficulty here is, that the testimony is not sufficient to show the existence of such custom on the part of the master mechanic. It is true that in response to a question on his direct examination, Paffe stated that the master mechanic was in the habit of hiring firemen in the yards of the company at McG-ehee, but on cross' examination, he also stated that he never saw him hire anybody. It will be remembered that Paffe had only been in the employment of the company for a short time, viz., a period of about fifteen days. His cross examination must be considered as explanatory of his testiomny given on direct examination, and, when so treated and considered, it is manifest that he possessed no knowledge whatever of whether or not the master mechanic, as a matter of custom, hired firemen in the yards of the company. So, then, it will be seen that his testimony amounted to no more than a mere conclusion on his part, or at most a statement of matters which he had learned from others, and would be merely hearsay. In either event, his testimony was not competent to show the existence of a custom of which he possessed no knowledge whatever. This leaves only the testimony of witness, McCuen, to establish the existence of the custom. His testimony only showed the single act of hiring himself, and falls far short of establishing the existence of a custom on the part of the master mechanic of hiring firemen in the yards of the company.
It follows that the court erred in admitting the testimony of witness, Paffe, to establish the existence of a custom on the part of the master mechanic of hiring locomotive firemen in the yards of the company, and the court also erred in submitting the question of the existence of the custom to the jury, because there was no evidence upoii which to base a submission of this question.
For the errors indicated, the judgment must be reversed and the cause remanded for a new trial. | [
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Kirby, J.,
(after stating the facts). Without regard to whether he was'a trespasser or a licensee upon its tracks, the railroad company owed the deceased the duty to keep a constant lookout to avoid injuring him, and his contributory negligence would not excuse its failure to discharge this duty, where if such lookout had been kept, his perilous position could' have been discovered in time to háve prevented the injury by the exercise of ordinary care. Acts 1911, p. 275; St. Louis, I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431, 155 S. W. (Ark.) 510.
The undisputed testimony shows that the tracks at the' place of the injury were straight and unobstructed in any way from north of the Frisco crossing, where the,, engine was placing the coaches on the switch track, to the place-.where the injury occurred. A man upon the engine keeping a lookout could have easily discovered deceased upon the speeder on the track before running him down.
The testimony is in conflict as to whether the wind was blowing and it was raining at the time as the helper said it was, making it necessary for him to keep his head down, in order to keep his hat on, which caused his failure to see the deceased and it is also in conflict as to the time' the deceased got on the track and the distance from the engine at the time of getting'on the track, and, under all the circumstances of the case, the jury could have found that a proper lookout might .have discovered deceased’s perilous position in time to have avoided injuring him, by the exercise of .ordinary care.
' ' ' Whether, under the circumstances as detailed, the railroad company’s employees exercised that degree of care in keeping the lookout required by law, was a question properly for the jury. Several witnesses thought deceased had time to jump or fall off of the speeder and escape from the train- after he discovered' its near approach, but the fact remains that he did not do so, and even if he had had time he may have been so paralyzed by fright as to have been unable to do so, and, from the evidence,-it appears'that such was the case; but if he negligently failed to escape from the engine, that did not warrant the railway company in running him down, nor excuse its failure to keep the lookout required by law, nor its duty to avoid injuring him if it could do so by the use of ordinary care after his peiilous position was, or could have been,-discovered.
We are of the opinion, however, that the undisputed testimony shows that the death of the deceased was instantaneous and painless. He was virtually cut in two above the hips by the wheels of the tender and engine passing over him and only moved his head slightly and gasped after it passed over him. The physicians testified that these movements were due to muscular relaxation and contraction and the shock was complete and death painless. ■ Such being the case, there can be no recovery for pain and suffering for the benefit of the estate and the court did not err in directing the verdict.
The judgment is affirmed. | [
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McCulloch, C. J.
The defendant, Will Dempsey, was indicted and convicted under the following statute:
“If any man shall, without good cause, abandon or desert his wife, or abandon his child or children under the age of twelve years, horn in or legitimatized by lawful wedlock, and shall fail, neglect or refuse to maintain or provide for such wife, child or children, he shall, upon conviction, he punished by imprisonment in the county jail not more than one year, or by a fine not less than fifty nor more than one thousand dollars, or by both such fine and imprisonment.” Acts of 1909, page 134.
In the case of Green v. State, 96 Ark. 175, we held that' the statute is a valid one.
! ■ Tt is insisted that the testimony was not sufficient to 'sustain the verdict. The defendant and his wife lived in Lonoke County, having children under the age named in the statute, and while living there it is claimed the defendant deserted Ms family and neglected to support them. The'principal witness against the defendant was Ms wife, and in her examination it is clearly manifested that she had, for some reason, concluded to shield Mm as much as possible, though she had appeared before the grand jury when the indictment was returned.
It appears from the testimony that some time during the summer of the year 1912, defendant began illicit relations'with a married woman living in the neighborhood, and.'that he abandoned Ms wife on the former’s account. The defendant came to Little Rock, and shortly there-a'fter ;the woman moved here with her husband, and the improper relations continued between her and the defendant. The indictment was returned by the grand jury on 'February 11,1913, and it is proved that from the time defendant left Ms wife in November up to the date of the indictment, he had returned to Ms family only three times, two of the visits being each of a few hours’ duration. On one of the visits, he had spent the night in Lonoke. They lived in the country prior to the alleged desertion, but about that time a brother of the wife moved the family to the town of Lonoke. Defendant’s wife stated that on one of the occasions of Ms visit in November he came back to stay, but that she told him that he couldn’t remain there. She said that she was mad at him at the time, and it is evident from her testimony that what she said to him was provoked by his conduct with the other woman.
Defendant does not deny improper conduct with the other woman, and it is very evident from the testimony that he deserted his wife and was maintaining improper relations with that woman.
The testimony is therefore clearly sufficient to sus tain the charge against defendant of deserting his wife and children. This, however, does not constitute an offense under the statute. In order to make out the offense, there must also he failure and neglect or refusal to maintain and provide for the wife and children. This means, of course, a wilful or negligent failure to provide, and not mere failure on account of inability. It does not necessarily mean, however, that there must be a complete failure in that respect, for an abandonment by a man of his wife and children, coupled with a wilful failure or neglect to adequately provide for their wants, would be sufficient to complete the offense. The undisputed testimony in the case shows that the defendant did make some provision for his wife and children, but the jury was warranted in finding that the provision was not adequate for their comfort. The wife testified that from November, 1912, up to the date of this trial, the defendant had provided about $35 for herself and children, and that he gave the children some clothes. Her brother furnished them wood for fuel during the winter.
Where the husband has wilfully deserted his wife and children, it does not satisfy the law merely that he furnished slight and inadequate provision for their welfare and comfort. As before stated, it is incumbent upon him, to the best of his ability, to furnish adequate support for his wife and children, and the failure to-do this is what the law seeks to punish.
While the testimony is meager, on account of the evident desire on the part of the wife to shield her erring husband, we are of the opinion that it is sufficient to sustain the charge that the defendant, not only wilfully deserted his wife and children, on account of his liaison with another woman, but that he wilfully neglected to provide for their support. The judgment is, therefore, affirmed. | [
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Hart, J.
J. A. Sarter owned a farm in Poinsett County, and in the year 1911» rented it to Pickett and Furnatta to be worked by them upon shares. For the purpose of enabling them to plant and grow their crops he furnished them one hundred bushels of corn and took their note for $65, the purchase price thereof, with B. F. Cole as surety. Cole was a merchant and took a mortgage on the crop for supplies to be furnished the tenants during the year. About the 1st of November, Furnatta sold his interest in the crop to Pickett. Then Pickett made an exchange of gathering crops with W. H. Turner, his brother-in-law, who lived in another county. Some weeks later Pickett sold his interest in the crop to Turner and told Sarter, his landlord, about it. About a week later, Turner also told Sarter that he had purchased the •crop. Turner finished gathering the crop and he and Pickett paid off the mortgage which Pickett had given to Cole on the crop. They also paid the rent. Later on Sarter went to Cole and demanded the payment of the note on which he was surety for the purchase price of the corn furnished by him to his tenants. Then he brought suit against Cole and the makers of the note and recovered judgment. Cole paid the judgment. Cole said that he asked Sarter why he did not remind him that the note was not paid before he had released his mortgage on the crop, and that Sarter told him that he thought it was not necessary because the tenants would take care of the note.
Cole brought this suit against Turner and asked that he be subrogated to the landlord’s lien upon the crop for advances made by him.
The chancellor found for the defendant, and the plaintiff has appealed.
We need not decide the question of whether Cole was entitled to be subrogated to the landlord’s lien for supplies furnished his tenants because we hold that the landlord, by his conduct, has waived his lien for rent and ad vanees made to his tenant by taking a note therefor with personal security. 24 Cyc. 1273. This is so because there is nothing in the acceptance of personal security inconsistent with the lien conferred by the statute for rent or advances where there is no evidence of an intention on the part of the landlord to treat the original claim as discharged by the acceptance of a note with personal security. Under the state of facts disclosed by the record in the instant case, we are of the opinion, however, that the landlord, by his conduct, waived his lien for the advances made to his tenants. He admits that Pickett told him that he had sold his interest in the crop to Turner, and that about a week later Turner told him that he had bought 'out' Pickett. The landlord made no objection to the sale, and acquiesced in it.
Subsequently, he received payments of his rents and made no attempt whatever to assert any lien for supplies, furnished by him to his tenants. Subsequently, he brought suit against the tenants and the surety on the note, and recovered judgment against them. He at no time attempted to assert any lien for the advances made, and by his conduct, showed that he assented to the tenants’ sale of the crop, and relied wholly upon the personal security he received, when the note was executed for its payment. His whole conduct shows that he did not intend to rely upon his landlord’s lien for the satisfaction of the note. We hold that under the circumstances, his conduct was inconsistent with an intention on his part to retain and enforce his lien against his tenant. Under-hill on Landlord and Tenant, vol. 2, par. 846.
Therefore, the decree will be affirmed. | [
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Wood, J.,
(after stating the facts). The only theory upon which the appellee can be allowed the relief prayed for in this case is that his brother made him a gift of the land. We are of the opinion that the testimony showing such a gift is clear, unequivocal and convincing. Without going into detail in discussing the evidence, which is quite fully set forth in the statement, it is sufficient to say that it shows clearly that it was the intention of Francis X. Bogenshutz, who was in prosperous circum stances, to buy the land for his brother, John B. Bogenshutz, who was in rather destitute circumstances. The greatest affection existed between the brothers and the letters and oral testimony in the case show unmistakably that Francis Bogenshutz bought the land for his brother, John B. Bogenshutz, and gave the same to him. The notice which C. M. Davey gave to Rogers to vacate the premises and to deliver possession to the appellee must be taken as the act of Francis X. Bogenshutz, who paid to Davey the purchase money, and to whom Davey executed the deed. The land at the time of this notice was not the land of Davey, but the land of Francis X. Bogenshutz, to whom Davey had sold the same. So the investiture of possession in appellee was effected during the life of his brother, Francis X., the donor.
The letter of Francis Bogenshutz, written to his brother on June 23, 1910, in which he says, “You have been asking me from time to time to buy that piece of ground. Now, as you have it, you are not doing or trying to do anything for yourself,” shows, when taken in connection with the other evidence, that Francis X. had bought the land for and had delivered same to the appellee.
The question of resulting trust has no place in the record, for the undisputed evidence shows that Francis X. Bogenshutz furnished the money with which to purchase the land, and therefore no resulting trust in favor of appellee could exist. Hackney v. Butts, 41 Ark. 393; Gaines v. Cannon, 42 Ark. 503; Bland v. Talley, 50 Ark. 71.
If these were nothing further shown than that Francis X. furnished the money to buy the land and intended thereafter to convey same to his brother, John B., then appellee’s contention could not be sustained, because there would be neither an express nor resulting trust, and the statute of frauds would apply to prevent the relief sought. But, as we have stated, the evidence shows a gift, which was completed by the donor, Francis X., in delivering the possession of the land to his brother, the appellee, with the intention of making a gift thereof to him. It was not simply a promise to give, but a completed gift. Acting under the belief that his brother had given him the land, appellee took possession thereof, and paid the taxes and made improvements thereon. See Young v. Crawford, 82 Ark. 33; Williams v. Neighbors, 155 S. W. 917, and cases there cited.
While there is no evidence to justify the finding of the court “that Francis X. Bogenshutz took the deed in his own name, as trustee of John B. Bogenshutz, and not as the owner thereof,” the testimony does clearly prove that Francis X. Bogenshutz bought the land, taking the title in his own name, intending at the time to give the same to his brother, and that he afterwards carried out this intention, by investing his brother with the possession of the land, and, when he did so, he intended that his brother should have full control and dominion over it, as the owner thereof.
Even though the court was mistaken in finding that Francis X. held the land as trustee, the judgment of the court is nevertheless correct in granting the relief prayed for, and it is affirmed. | [
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Kirby, J.,
(after stating the facts). It is urgently insisted that the court erred in permitting the medical experts, Doctors Brown and Jones, to testify as to the cause of appellee’s condition from a history of her case as related to them by her, and repeated by them to the ■jury, and with this contention we agree.
There was no testimony relating to the occurrence of the injury as claimed by appellee, except her own statement of it. All the employees of the railroad company on the train testified that the train stopped a reasonable length of time for the taking of passengers aboard; that there was no rough handling or unusual jerking of it, and that it did not start up and stop again, after stopping at first, as appellee claimed it did. The description of the occurrence of the injury, as related to these two physicians and by them to the jury, as part of the history of the case, upon which they based their opinions, necessarily resulted in bolstering up the statement of the appellee as to the occurrence of the injury. The jury might have inferred from it that she told the truth upon the stand, about receiving the injury, because she had related the occurrence to Doctor Brown, the first physician, in the same way on the day she said it was received, and to the next physician, Doctor Jones, thereafter. That since she had told it, alike each time to these physicians, as related by them to the jury, that it must be true.
Expert witnesses are not called to decide disputed questions of fact, but only to give, opinions upon the matter upon which their opinions are sought that the jury may determine the question.
Mr. J ones, in his work on Evidence, second edition, section 349, says: ‘ ‘ The declarations of the party to his physician, or to other persons, as to the cause of the injury, or those charging liability upon other persons, are not admissible when not made at the time of the injury. * * * The narration of past occurrences, for example, the manner in which a party has been injured, are no more competent when related by a physician than when stated by a nonprofessional witness.”
In 5 Enc. of Evidence, p. 609, it is said: “The rule which allows a medical expert to give a clinical history of the case, including what was told him by his patient, does not extend so far as to allow the witness to repeat what he was told as to how personal injuries were caused.” See also Lawson, Expert and Opinion Evidence, page 176; Bogers, Expert Testimony, page 115; Wigmore, section 1722.
In Ringelhaupt v. Young, 55 Ark. 132, this court said: “As to how the opinions of experts should be elicited and adduced as evidence, when the expert is not personally acquainted with the material facts in the case, Chief Justice Shaw, in delivering the opinion of the court in Dickinson v. Fitchburg, 13 Gray 546, 556, correctly stated the law as follows: ‘In order to obtain the opinion of a witness on matters not depending upon general knowledge, but on facts- not testified of by himself, one of two modes is pursued: Either the witness is present and hears all the testimony, or the testimony is summed up in the question put to him; and in either case the question is put to him hypothetically, whether if certain facts testified of are true, he can form an opinion and what that opinion is. ’ Thompson on Trials, sections 593, 595, and eases cited.”
In that case, the expert witness was allowed to give his opinion upon what he knew about the matter, because he did know the facts upon which it was based.
And in St. Louis & S. F. Rd. Co. v. Fithian, 106 Ark. 491, where it was claimed that the court had erred in permitting expert witnesses to answer hypothetical questions that did not include a material undisputed fact, a case where the witnesses were testifying as to the proper construction of a railroad track upon a curve from which a switch track led off at a different curvature, after an examination of the place after the train wreck and the injury had occurred, the court said:
“It was proper to permit the expressions of their opinion under the circumstances, and appellant could have tested their knowledge of the existing conditions and discovered whether this fact was taken into consideration by them in forming their opinions, if it had desired to do so, upon proper examination.”
There is no question but. that it would have been error to permit the relation, by the physicians, of the history of the ease, including a statement of how the injury occurred, if it had resulted in the death of the appellee before the trial. It could not be considered part of the res gestae, and otherwise would have been only hearsay evidence, and not admissible. Fordyce v. McCants, 51 Ark. 509.
Testimony relative to .the statements made by the in-, jured person to his attending physician as to how the accident happened, and what caused it, is not admissible in a suit to recover for alleged negligent injury. .It is but hearsay, when not a part of the res gestae, and the fact-that.it is. recited by the physician to whom it .was related as-the. history of the case when the injured person sought treatment for the injury, does not make it any the. less- so. . Halloway v. Kansas City, 184 Mo. 19 ; Federal Betterment Co. v. Reeves, 4 L. R. A. (N. S.) 460; Jones v. Portland, 88 Mich. 598, 16 L. R. A. (N. S.) 437; Lee v. K. C. So. Ry. Co., 206 Fed. 765.
In Polk v. State, 36 Ark. 124, this court said:. “The proper course is to take the opinion of the expert upon; the facts given in evidence; not as to the merits. of the; case, or the guilt or innocence of the prisoner, but as to the cause of the death, so.that the jury may first.-determine whether any crime has-been committed by any one at all. If the expert has been present, and heard all the evidence as to the symptoms and. appearances, detailed upon the trial, he may give his opinions upon the. facts so stated, if they he fo'und true.hy the jury,-but, can not, himself, judge of their truth. If he has not been, present and heard them, they may be repeated to him, in the presence of the court and jury, and his opinion concerning them required upon the same supposition of their truth. But, in either case, the. opinion is upon a hypothetical state of affairs, and its value depends upon the view the jury may take of the truth of the facts,’ to which witnesses have sworn. It can not be based upon any facts which -the- expert may have heard outside, and may1 believe to be credible; and, if based upon his own' knowledge of particular facts, he should, himself, detail the facts,' and give his opinion thereon. ”
In view of the fact that no witness corroborated the statement of the appellee as- to the occurrence of the injury, and that the testimony of all the train crew tended to show that there was no stopping or starting of the train as she claimed at the time of the injury, and' there was no complaint made by appellee, at the time, that she had been injured, it can not be said that her statement relating how the injury occurred to the physicians.from whom- -she sought treatment for it as recited by them before the jury, as a foundation upon which to base an expert opinion as to the cause of the injury, was not prejudicial, notwithstanding the proof in the case as made by appellee’ showed the injury to have occurred in the same way. It was necessary for her to prove that she had been injured under such circumstances as would show negligence upon the part of the railroad company before any recovery could be had, and since this incompetent testimony tended to strengthen her case before the jury, it was necessarily prejudicial.’
Other assignments of error are insisted upon, relative to the giving of an instruction upon the measure of damages, and also the excessiveness of the verdict, but it will not be necessary to pass upon them.
For the error indicated, the judgment is reversed and the cause remanded for a new trial. | [
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Smith, J.
This suit was commenced by appellee August 26, 1903, to cancel a deed executed by Mm to Ms wife and their infant cMldren, the appellant being the oldest cMld. The deed sought to be cancelled was executed on the 21st day of July, 1898, and by it appellee conveyed to Ms wife, Jennie Stephens, and the appellant, Maggie Stephens and James K. ánd Grace Stephens, Ms cMldren, the following described lands, lying in the Western District of Clay County, towit:
Northwest quarter, southeast quarter, section 22; northwest quarter, southwest quarter, section 23; northeast quarter, southeast quarter, section 22; northeast quarter, northwest quarter, section 26, all in townsMp 21 north; range 3 east.
The complaint alleged that appellee had said deed recorded in the recorder’s office of Clay County for the Western District, but retained possession of the deed, and has since retained possession of same, never having delivered it to any one of the defendants, or to any other person for them; and that he has possession of said land at the present time and that said deed was executed for no other consideration than love and affection; that said deed is a cloud upon the title and appellee prayed that it be cancelled and set aside.
A regular practicing attorney of that court was appointed by the court as guardian ad litem and he filed an answer which contained a general denial of all the allegations of the complaint. The cause was' heard upon the deposition of appellee which was all the evidence heard in the case; and he testified that he had inherited the land from his father and that he determined to remove to Oregon, and in explaining the purpose of the deed, said: “Before I started to Oregon, I thought if something might happen to me while there, if I should die, the land might be sold and my children beat out of it some way, that was the reason I made the deed to my wife and children so that if I should happen to die out there. ’ ’ He testified further that he never told his wife and children anything about the deed but he took it to the clerk’s office and acknowledged it and had it recorded, and after it was recorded, he put it among his other papers. He testified further that he did not remember whether his wife or children had ever seen the deed and that he had had possession of the land since its date. He also testified that his wife had executed a mortgage on the land in which he had joined because the debt which it secured was his own debt. Appellee also testified that the lands were his homestead.
The court found that said deed had never been delivered to defendants nor to any one for them and decreed that it be cancelled and set aside. Appellant is the oldest child, and has just come of age and prosecutes this appeal from that decree.
Appellant insists that the court erred in admitting in evidence the deposition of appellee for the reason that no proper notice of its taking was given, and while that objection appears to be well taken, we are also of opinion that the deposition does not support the chan cellor’s finding, and we will reverse the case on that account. The question of the sufficiency of the delivery of a deed was considered in the recent case of Graham v. Suddeth, 97 Ark. 283, where Justice Frauenthal, for the court, said:
“A deed is defined to be a ‘written instrument signed, sealed and delivered^” and it is essential to the validity of a deed that there should be a delivery of the instrument. But in order to constitute a sufficient delivery thereof, it is not necessary that there should be an actual manual transfer thereof to the grantee or a formal acceptance thereof by him. The question of a delivery of a deed is largely one of intent; and if it clearly appears from the words or acts of the grantor that it was his intention to treat the instrument as his deed and to make a disposal thereof, indicating that it should be effective, then the delivery is sufficient. As is said in the case of Russell v. May, 77 Ark. 89: ‘Any disposal of a deed accompanied by act, words or circumstances which clearly indicate that the grantor intends that it shall take effect as a conveyance, is a sufficient delivery. ’
‘ ‘ The registration of a deed raises a presumption of the delivery to and acceptance by the grantee thereof. It is evidence of a most cogent character tending to show delivery. It is a solemn proclamation to the world that there has been a transfer of the title to the property from the grantor to the grantee, of which our law makes every one take notice. 1 Devlin on Deeds, par. 392; 13 Cyc. 567; Hedge v. Drew, 12 Pick. 141; Robbins v. Rascoe, 120 N. C. 79; Snider v. Lackanour, 38 Am. Dec. 685.”
We think there was a delivery here within the rule announced. Here Stephens acknowledged the deed and filed it for record and when he had done so, put it with his other valuable papers. His statement is that he did this in order that his wife and children should have no trouble about the title if anything happened to him. Appellee may have had the secret intention that the deed should not be treated as delivered and that the title should not pass, but the presumption is to the contrary, and the evidence to rebut that presumption should be clear and satisfying. Titles to land can not be permitted to rest upon the secret intention of grantors, who do so solemn a thing as to execute and acknowledge a deed and voluntarily place it of record unless it be clearly established that there was no intention of delivery for the purpose of passing the title.
A brief has been filed by an amicus curiae and it is insisted by him that the deed should be held to be void because it is a conveyance of a homestead in which the wife did not join. If this conveyance had been to the wife alone, she, of course, could not have joined in its execution, and be both grantor and grantee, in the conveyance to her, but the conveyance was to her and her three children and a conveyance to these children of the homestead would not be valid unless the wife joined the husband in the execution of the deed. Pipkin v. Williams, 56 Ark. 42. But that question is not presented by this record. The court made no finding as to whether the land was' a homestead or not but granted the relief upon the ground asked for in the complaint, that is that the deed had never been delivered. It is true that appellee stated in his deposition that the property conveyed constituted his homestead, but he had not attacked the conveyance on that account and there was no allegation to that effect in his complaint. It is also true that in a proper case the pleadings will be held to be-amended to conform to the evidence, but the pleading will not be treated as amended unless the evidence is sufficient to properly present the issue necessitating the amendment. The Constitution and laws of this State defines the homestead rights of the head of a family:
Section 3899, Kirby’s Digest, is as follows: “The homestead, outside any city, town or village owned and occupied as a residence, shall consist of not exceeding one hundred and sixty acres of land, with the improvements thereon, to be selected by the owner. Provided, the same shall not exceed in value the sum of twenty-five hundred dollars, and in no event shall the homestead be reduced to less than eighty acres, without regard to value.”
Here the proof does not show that the land conveyed does not exceed $2,500 in value, but it does affirmatively show that the lands are not contiguous. It does not appear from the evidence on which part of this land appellee resided and as the courts take judicial knowledge of the public land surveys we do know that the land in section 26 is not contiguous to the land in sections 22 and 23, and therefore all of it can not be claimed as a homestead because the land claimed as such must be contiguous. The only evidence upon that subject is embraced in the following question and answer:
Q. Is this land your homestead?
A. Yes, sir.
He may have meant by this answer to have testified that the land was his homestead at the time of the conveyance, but that fact even is not clear. Under the state of the record the pleadings will not be treated as amended to conform to the proof. For three of these defendants were minors whose defense was being made by a guardian appointed for that purpose, and the rule is well established that there must first be a genuine defense made by the guardian and all material allegations denied, and the allegation as to the land being a homestead was not even made in the complaint. Blanton v. Davis, 107 Ark. 1, 154 S. W. 947.
We are, therefore, of opinion that the evidence is insufficient to support the chancellor's finding and to overcome the presumption of law which arises -when a grantor causes a deed to be recorded and the decree of the chancery court is accordingly reversed and the cause remanded with directions to the chancery court to vacate its decree, cancelling and annulling the deed in question. | [
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Hart, J.
This suit was commenced before a justice of the peace by John M. Parker against John Boyd to recover a horse which Parker alleges he exchanged with Boyd for a gray mare. He alleged that he was induced by the defendant to make the exchange by false and fraudulent representations that the mare was sound and that the mare turned out to be unsound. Upon appeal to the circuit court there was a trial anew by a jury and a verdict and judgment in favor of the defendant. The plaintiff has appealed.
The testimony on the part of the plaintiff was that Parker and Boyd talked about making the exchange two or three times before it was made. Parker says that he could not see anything wrong with the mare and that she looked like she was worth $125 or $150. That Boyd told him there was nothing wrong with the mare and that she was safe in every respect. Parker and Boyd traded late in the afternoon and Parker turned the m’are in a pasture. She was in foal and lost her colt that night. The next morning Parker was informed that three of the grinder teeth of the mare had been pulled out before he traded for her. On the same day he went to Boyd and offered to return the mare and demanded his horse back.
Other testimony tends to show that the mare was suffering with chronic indigestion at the time Boyd traded her to Parker. Both the veterinary surgeon and a former owner of the mare testified to this fact. They said the mare did well enough when her food was ground but that special attention had to be paid to the preparation of her food in order to prevent her from having indigestion. The former owner of the mare said that he had told Boyd of this fact. The veterinary surgeon said that the mare in the condition she was in when she was traded was worth about one hundred dollars and the horse was worth a like amount. He said the fact that a horse had lost three of its jaw teeth did not class it as unsound. The mare died from acute indigestion on the night before the trial in the justice court, while she was still in the possession of the plaintiff.
Boyd admitted that he had told the plaintiff that he considered the mare sound and says that he did this in good faith. He denies that the former owner of the mare had told him that the mare suffered from chronic indigestion, and said that during the two months he owned the mare she never suffered indigestion and had no trouble in masticating her food. He said that he knew that she had lost two of her teeth but did not regard this as rendering her unsound and on this account told the plaintiff that he considered her sound. The law of the case is well stated in Hunt v. Davis, 98 Ark. 44, where the court said:
“The principles on the subject of fraud which are applicable to contracts for the sale of property generally apply likewise to contracts for the sale of shares of stock. In order to charge the seller with fraud, it must be shown that he has made an active attempt to deceive the buyer relative to some matter material to the contract, either by statements which he knows to be false or by acts, conduct or representations which suppress the truth and induce in the buyer a false impression. Representations which are considered fraudulent in law must be of a nature that are material to the contract, and ‘must be made by one who either knowrs them to be false or else, not knowing, asserts them to be true, and made with the intent to have the other party act upon them to his injury, and such must be their effect.’ ”
The court instructed the jury in effect that fraud consists in the misrepresentation or concealment of a material fact calculated to deceive and mislead the opposite party, and further told them if they believed that the defendant made the plaintiff any false representations or used any deceit as an inducement to the making of the trade or concealed from the plaintiff any latent defect in the animal traded him that they must find for the plaintiff. The plaintiff complains that the court refused to give certain instructions asked for by him. We do not deem it necessary to set out these instructions. They all in effect asked the court to tell the jury if they believed that the animal traded-by the defendant to the plaintiff was unsound in that she had lost her grinder teeth at the time the trade was made or that she was suffering with chronic indigestion and the defendant knew of this and failed to disclose it to the plaintiff, that this was such a concealment of a latent defect as entitled plaintiff to avoid the contract. In short, the instructions asked and refused in substance asked the court to tell the jury, as a matter of law, that the fact that the mare had lost her grinder teeth rendered her unsound and that this, coupled with the further fact that the defendant knew of it, would entitle plaintiff to rescind the trade. This is not the law. The contract in this case was by parol, and the court properly submitted it to the jury for them to find whether the representations made by the defendant to the plaintiff in regard to the soundness of the mare were intended and understood by the parties as the representation that the mare was sound or whether they were intended as mere expressions of opinion. In order to entitle plaintiff to rescind the trade there must have been some misrepresentation of a material fact concerning the mare which the plaintiff relied upon and which was understood by the parties as an absolute assertion concerning the condition of the mare and not the mere expression of an opinion.
The jury found for the defendant under instructions which fairly submitted the contention of both sides, and, under the uniform decisions of this court, the verdict must be upheld.
The judgment will be affirmed. | [
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Wood, J.,
(after stating the facts). On examination of the bolt and the model of the machinery about which Hopkins was working when he was killed, we are convinced that the saw kerf in the ragged end of the bolt was made by the front end of the saw, as contended by appellant, and as stated by the witnesses who testified affirmatively to that fact. The kerf shows that it was on a parallel line with the length of the bolt and the marks of the saw teeth as revealed on the inside of the kerf, so far as they are distinctly visible, show conclusively to our minds that it would have been impossible for the kerf to have been made by the. heel of the saw. These saw teeth marks, a few inches on the inside of the saw kerf, indicate unmistakably the direction in which the saw was moving, and they show that the bolt must have approached it from the front end of the saw. If the bolt had approached the heel of the saw, as contended by appellee, the marks of the saw teeth must have been in the opposite direction from what they appear to be. And the kerf, had the bolt approached the heel of the saw, could not have been straight and on a parallel line with the length of the bolt and could not have cut as far into the end of the bolt as the saw kerf shows. Witnesses testify that the bolt would have been thrown up and away from the saw and .that there could not have been force enough to have held it to the heel of the saw, in order to have made the kerf as it appears. Witnesses testify that if the rear dog was released and the rear end of the bolt dropped down and brought back against the saw moving in the direction in which it was going, and with the rapidity it was moving, it would have been impossible to have made the kerf on a line straight or parallel with the length of the bolt. This accords with our view of the physical facts, as shown by the appearance of the kerf in the bolt and the manner of operating the machinery, as testified to by the witnesses and shown by the models as exhibited in the evidence and brought into this record and used in the oral argument.
So, if the liability of the appellant depended upon whether or not the kerf in the bolt was made by the front or the heel of the saw, we would sustain the contention of the appellant on that point, notwithstanding the testimony of the appellee tending to show that the sawyer did not change the ends of the bolt, and notwithstanding the testimony of a witness to the effect that he thought it could have been done in the manner urged by the counsel for the appellee, and notwithstanding the jurors visited the mill plant and viewed the saw slipped into the kerf on the bolt from the heel of the saw. If recovery depended on whether the kerf was made by the front or the heel of the saw, then all of this testimony would come within the rule of Waters-Pierce Oil Company v. Knisel, 79 Ark. 608, and other cases cited and relied on in appellant’s brief. But because tbe kerf was not cut by tbe heel of the saw, it by no means follows that tbe undisputed evidence and tbe physical facts show that Hopkins ’ death was caused in tbe manner contended for by tbe learned counsel of appellant.
Tbe complaint alleges that while tbe bolt was upon tbe carriage tbe sawyer carelessly moved tbe lever, so as to cause tbe carriage to run backward and thereby brought tbe bolt again in contact with tbe saw, which was running at a great speed, and threw same with great force against appellee’s intestate.
Tbe evidence is set forth somewhat at length in tbe statement and there is some testimony to warrant tbe jury in finding that tbe death of Hopkins was caused in the manner alleged in tbe complaint. It was shown that there was a defect in tbe lever of tbe carriage and that unless tbe sawyer was careful in handling it, tbe carriage would run away. There is no dispute that Hopkins was killed by tbe bolt striking him on tbe head. There was testimony to warrant tbe jury in finding that tbe bolt passed through tbe saw. One witness testified positively to this effect. It was within tbe province of tbe jury to believe this testimony, although tbe decided preponderance of tbe evidence may show to tbe contrary. If tbe bolt passed tbe beel of tbe saw, tbe only possible way in which tbe death of Hopkins could have resulted under tbe evidence, was as alleged in tbe complaint. That it did so result is not contrary to tbe physical facts. Although tbe kerf in tbe bolt was made by tbe front of tbe saw, and although tbe sawryer after this changed tbe ends of tbe bolt and passed tbe bolt through tbe saw with tbe smooth end in front, still if be carelessly caused tbe carriage to move back, after tbe block bad passed through, but before it was entirely released from tbe dogs, causing tbe rear end of tbe bolt to move toward tbe saw, tbe bolt might have been caught by tbe saw teeth in tbe edge of tbe kerf and in tbe splintered and jagged end thereof and been burled against Hopkins.
On examination, after sawing off tbe end of tbe block and exposing the inside of the kerf to view, the jury might have come to the conclusion that the saw teeth caught between the edges of the kerf at the splintered and ragged end of the block and were thereby fastened long enough to throw the block over against Hopkins. While the upper end of the kerf is comparatively smooth and shows plainly the saw teeth and the direction in which the saw was moving when the imprint of the saw teeth was made, the lower end of the kerf or that next to the carriage, was more or less frazzled, with the fibers of the wood broken down on the inside of the kerf, and there are indentations or marks on the inside of this kerf, indicating where the saw teeth had been and showing by the splintered condition of the sides of the kerf, that the saw teeth might have fastened in the wood. After sawing off the piece of the end showing the inside of the kerf, the jury concluded that the testimony showing that the bolt passed the heel of the saw, was true and that the carriage was moved back by the sawyer and the bolt thus brought in contact with the heel of the saw, fastening the teeth of same in the kerf of the ragged end of the bolt and hurling it over against Hopkins, according to the theory of the appellee. We are of the opinion that this explanation and theory as to how the injury was produced, is not contrary to the physical facts. The witness who testified that the bolt went past the saw also testified that he saw the off-bearer reach for it but did not know whether he took hold of it or not. This testimony was believed by the jury and it tended to show that the bolt did pass the end of the saw, for it would be unreasonable to conclude that the off-bearer would reach for the bolt before the same had passed the saw. Especially would it be foolhardy for him to have exposed himself to the danger of doing so, if the front end of the bolt was still some eight inches from the rear end of the saw, as one of the witnesses for the appellant testified it was.
The theory of appellant was, that after the saw passed through the bolt, but before the front end of it reached the rear end of the saw, Hopkins released the dog without moving the bolt back from the saw by the use of the ratchet wheel, and that the saw thus came in contact with the bolt, and the friction thereby created threw the bolt over against Hopkins. But the testimony of the witness on behalf of the appellee, showing that the entire bolt passed through the saw and that the rear end of the bolt passed the heel of the saw, and tending to show that' the off-bearer reached for the bolt, is in direct conflict with appellant’s theory and contention.
It was wholly within the province of the jury to believe and accept the testimony of the witness for the appellee and to disbelieve and reject the testimony of the witnesses for the appellant, and we will not disturb their verdict, although it may seem to us to be contrary to the decided preponderance of the evidence. See St. Louis & S. F. Rd. Co. v. Kilpatrick, 67 Ark. 47.
Second. The appellant objected to the testimony of certain wetnesses on the ground that it was opinion evidence and that the testimony was not competent. Several of the witnesses for the appellant had testified that the sawyer changed the ends of the bolt, which injured the appellee’s intestate. One witness on behalf of appellee was permitted to testify, over the objection of appellant, that he had never changed the ends of a bolt. Witnesses further testified on behalf of the appellee to the effect that they had examined the bolt and that the imprint of the dog teeth on the plain or square end of the bolt looked to be the same, and there were other expressions of opinion of certain witnesses on some phases of the case to which objection was made. We have examined these and are of the opinion that there was no prejudicial error in the ruling of the court in permitting this testimony and in not excluding the same from the jury. It was shown from the length of time the witnesses had been employed by mill plants of the kind under consideration and their familiarity with such machinery, that they were experts. Their opinion related to the subject-matter with which the jury were not sup posed to be so familiar as they. The testimony, therefore, was competent. Dardanelle, P. B. & T. Co. v. Croom, 95 Ark. 284-290. See also Kansas City So. Ry. Co. v. Henrie, 87 Ark. 443; St. Louis, I. M. & S. Ry. Co. v. Dawson, 77 Ark. 434.
Third. The court did not err in refusing to modify instruction No. 7. That instruction was but a continuation of instruction No. 6, which was as follows:
“If you find from the preponderance of the evidence that Sullivan, the sawyer, at the carriage where deceased worked, was negligent, as that term has been defined, in the performance of any duty which he owed to deceased, and that the injuries sustained by deceased resulted from such negligence on the part of Sullivan, and that at the time of being injured, deceased was in the exercise of due care for his own safety, your verdict will be for the plaintiff. ’ ’
The court had also used the term in the first instruction in connection with the duty of the deceased, to exercise “due care” for his own safety. The effect of'instruction No. 6 was to tell the jury that, even though the sawyer was negligent and that such negligence resulted in the death of Hopkins, still appellee could not recover unless Hopkins was in the exercise of “due care” for bis own safety. Having used the term “due care” in connection with the duties of Hopkins in the sixth instruction, the court in its instruction No. 7 was simply defining what the term “due care” meant, so that the jury might have a proper conception of what was required of Hopkins, as a condition precedent to the recovery by the appellee. The term was not used in defining the duty of the sawyer, the employee of appellant, whose negligence was alleged to have been the cause of the injury. The court had correctly defined “negligence” in other instructions. It will therefore be seen at a glance that the modification was not at all germane to the subject-matter of the instruction which the appellant requested to be modified. As a modification to instruction No. 7 it was entirely a misfit and the court did not err in refusing it because of that fact.
A modification to an instruction should pertain to the subject-matter which the instruction itself contains. If the appellant desired such an instruction . it should have presented it as a separate and independent prayer or in connection with some prayer in which the court was defining the duty of the employee, whose negligence was alleged to have caused the injury complained of. But the requested modification, even if presented as an independent prayer for instruction, was not the law and therefore the court did not err in refusing it. It was not necessary in order to make the company liable that Sullivan, the sawyer, should actually know that his fellow-servant, Hopkins, was in danger. It was sufficient, if the sawyer, in the exercise of ordinary care in the performance of his duties as an employee, could or should have known that his act in reversing the carriage might result in the injury to his fellow-servant. A corpora-. tion can only act through its servants and agents, and those through whom it acts must exercise ordinary care in the discharge of their duties, to avoid an injury to fellow-servants, that by the exercise of such care, could and should have been reasonably anticipated and avoided. The. effect of the requested modification was to tell the jury that appellant was not liable unless Sullivan had discovered the peril of Hopkins before running the saw carriage containing the bolt back to the saw. If this were the law, the master would not be liable for an injury to his servant unless such injury was caused by the wilful or gross negligence of the employee causing the injury. Sullivan being in control of the movements of the carriage and knowing the positions of the respective fellow-employees working with him and the consequences likely to result to them from his failure to exercise ordinary care in the performance of his own duties, would render his master liable for an injury resulting to a fellow-employee by reason of such failure. Act 69, Acts of Ark. 1907, p. 163; see Aluminum Co. v. Ramsey, 89 Ark. 522.
Fourth. The record presents no question for review concerning the alleged improper remarks of counsel. If the remarks of counsel were improper, they were not, to say the least, so flagrant as to be prejudicial at all events. While it is the duty of the court on its own motion to make such rulings as may be necessary to correct the prejudicial effect df any improper argument (Vaughn v. State, 58 Ark. 353), it is also the duty of the party affected by any improper argument to except to the failure of the court to take the necessary steps to remove any prejudicial effect of such argument. Unless the party affected excepts to the failure on the part of the court to remove, or to attempt to remove, the prejudice of the improper argument, he will be deemed to have waived any error predicated thereon. Meisenheimer v. State, 73 Ark. 407; Southwestern Tel. & Tel. Co. v. Abeles, 94 Ark. 254.
Affirmed.
Smith, J., disqualified and not participating. | [
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Smith, J.
Appellee was the plaintiff below in each of the three suits, which were consolidated in the circuit court on appeal from the judgment of the justice of the ’peace, in which they were instituted. These suits were all begun on the 15th of August, 1911, and their subject-matter was as follows: The first suit was for professional services rendered appellant for the years 1906, 1907 and 1908, at $100 per year. The second suit was also for the sum of $300, being for professional services rendered appellant for the years 1908,1909 and 1910, at $100 per year from May 1, 1908. The third suit was for services in drawing appellant’s last will and testament, $150, services in removing cloud on title on certain lots in the. city of Little Rock, $100, and regular services, $50, making the total amount of each suit $300. Each of these accounts was sworn to by appellee, and on appeal to the circuit court, they were consolidated and tried before the court sitting as a jury, and a judgment was rendered against appellant in the sum of $700.
Appellee testified that he was a parcticing attorney, in the city of Little Rock, and had been for a number of years, and had been employed by appellant tó represent her in legal matters for the annual fee of $100 for each year, and he testified that in addition he performed the services in the preparation of the will and in removing cloud from the title to the lots. He admitted having been paid $10 for Ms services in 1908, and appellant claims that this was all she ever owed appellee, and tliis sum was the charge made by appellee for preparing appellant’s will, and that she was never otherwise indebted to him.
The question of jurisdiction presents itself, and the decision of that question depends upon the determination as to whether or not these items constitute separate demands. We have a number of decisions on the question of jurisdiction of suits, originating in the courts of jus tiees of the peace, and the law of -such cases has- been thoroughly settled by these decisions, and the only difficulty is in the application of the law as therein announced, to the facts of the cases which arise.
It has been held that, “Where several notes, each belonging to a series, and each for less than $100, though aggregating more than $300 were joined in one suit, jurisdiction of the action was in the court of a justice of the peace, and not in the circuit court. ’ ’ This is true because each note constituted a separate cause of action. American Soda Fountain Co. v. Battle, 85 Ark. 213; Brooks v. Hornberger, 78 Ark. 595; Smith v. Davis, 83 Ark. 372.
It is also settled that several accounts, each constituting a separate cause of action, and no one of which exceeds $100, can not be combined to bring the amount in suit within the jurisdictional limits of the circuit court. Paris Mercantile Co. v. Hunter, 74 Ark. 615; Berry v. Hinton, 1 Ark. 252.
A case which is well considered and frequently cited, and which was cited with approval in the case of Paris Mercantile Co. v. Hunter, supra, is the case of Gregory v. Williams, 24 Ark. 177. That was a case, the facts of which were very similar to this. In that case the plaintiff brought three separate suits before a justice of the peace for the hire of a negro girl slave for the years 1862, 1863 and 1864, respectively. The hire for each year being within the jurisdiction of the justice of the peace, but in the aggregate exceeded that jurisdiction. It was contended there that the amount due for the services for each year constituted a separate demand, distinct in itself, and for the recovery of which the plaintiff had a right to institute a separate and distinct action. That the respective sums arose upon distinct contracts and fell due at different times and did not therefore constitute one debt or demand, but that each was a separate demand, for which separate suit would lie. Chief Justice Yonley, Speaking for the court, said: ‘ ‘ While it is true that every written acknowledgment of indebtedness, which may be made the foundation of an action at law is a separate demand, it is not true, as a proposition of law, that the several items of an open account, although of different dates, and arising out of different dealings and transactions between the parties are each separate demands, and can be sued upon as such. All the items of indebtedness, in the nature of accounts, subsisting between the parties,, at the time of the commencement of a suit for the recovery, constitute the debt, demand, or sum in controversy, and is an entire demand; and if the aggregate of all the items amounts to a sum beyond the jurisdiction of the justice, the difficulty can not be obviated and jurisdiction conferred upon that court by bringing suits upon the several items of the acccount. ”
That the items composing appellee’s demand constituted an open account is shown both by his evidence, and by the suits he brought, as he sues in each case for the sum of $300, composed of the items stated, and not for the amount of each of these items, as separate counts. The reasoning of the court in the pase of Gregory v. Williams, supra, applies with equal force here, and the judgment rendered there must also be rendered here.
The judgment of the circuit court is therefore reversed and the cause dismissed. | [
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Hart, J.,
(after stating the facts). At the outset, it may be said that in the case of Western Union Telegraph Company v. Bickerstaff, 100 Ark. 1, the court held:
“A telegraph company does not insure the prompt transmission of messages; it is required to exercise ordinary care, and is liable only for a failure to transmit as promptly as is reasonably practicable under all the existing circumstances. ’ ’
It is earnestly insisted by counsel that the court should have given a peremptory instruction in favor of the defendant. It was admitted that the telegraph offices at both Camden and Hope were closed on Christmas day between the hours of 10:00 a. m. and 4:00 p. m., and that the sender of the message knew of this fact. Therefore, the trial court ruled that the issue of negligence in this case would be confined to the question of whether the defendant was guilty of negligence in handling the message after 4 o’clock p. m. In determining this question, the jury had a right to consider the evidence in its most favorable light to the plaintiff. It is true that Herrin, the wire chief of the defendant company at Little Rock, testified that they attempted to send the message from Little Rock to Hope at 4 o’clock p. m., the time at which the office at Hope would be open on Christmas day. He also says that they made attempts for an hour to get the message through, and it was not until 5 o’clock or after that they discovered there was trouble with the local wire to Hope. They afterward sent the message around by Dallas and back to Texarkana to Hope. The manager of the defendant’s office at Hope states that the message was received there at about 5:45 p. m. It will be noted, however, that the defendant, in its answer, admitted that the message was received at Camden, and promptly transmitted to Little Rock and was received there before 4 o’clock p. m. This fact may also be inferred from the testimony of Mr. Herrin, for he says, “When we got the message we called the Hope office; then we called the Hope office at 4 o’clock and on up to 5 o’clock, when we discovered the wire was cut.” At the close of his cross examination we quote from his testimony as follows:
Q. You had no trouble in locating the right wire— the trouble was on the local wire?
A. Yes, sir.
Q. And you located it?
A. Yes, sir; in about thirty minutes.
Hence, the jury might have inferred that he discovered at 4:30 o’clock p. m. that he could not send the message to Hope over the local wire. We again quote from his testimony, as follows:
Q. You say you tried to get Hope at 4 o’clock and didn’t succeed?
A. Yes, sir.
Q. And didn’t succeed in getting them until 5 o’clock?
A. We didn’t succeed in getting them until 5:30.
Q. Well, when you couldn’t get them, didn’t you know that either one or two things was wrong, either the wire was out of order or the operator wasn’t in his office?
A. Well, there was something wrong, but we have lots of wires up there—
Q. But you didn’t get Hope, did you?
A. No, sir.
Q. It was an hour or more before you got Hope ?
A. Yes, sir.
We, also, quote from his direct examination as follows :
By Mr. Todd (counsel for defendant):
“We offer it (referring to the date showing the exact time the message was sent), if yonr Honor please, to show the time of sending. ’ ’
By Mr. McMillan (counsel for plaintiff):
“I object to it as hearsay testimony.”
By the Court:
“The witness has already stated that the message was sent at 5:30. ’ ’
The manager of the office at Hope testified that it was received there at about 5:45 p. m. And a witness for the plaintiff testified that ten minutes would have been a reasonable time in which to have delivered the message to the plaintiff. Therefore, the jury were warranted in finding that twenty-five ‘or thirty minutes was a reasonable time in which to have transmitted the message around by Dallas, and have delivered it to the plaintiff after it was received at Hope. Then, if the defendant company located the trouble on the local wire to Hope within half an hour, and if an additional thirty minutes was a reasonable time within which to have sent the message around by Dallas and delivered it to the plaintiff, the jury were warranted in finding that the message should have been delivered to the plaintiff at 5:00 p. m. She testified that had she received the message she wuuld have immediately driven through the country from Hope to Stamps, a distance of twenty-three miles. A train left Stamps for Camden at 8:30 p. m. and arrived at Camden at 10:10 p. m. This would have given plaintiff three and one-half hours in which to travel from Hope to Stamps. A witness for the plaintiff testified that he had made the trip in a buggy in two hours and thirty-éight minutes, and it is not unreasonable that the plaintiff might have procured a conveyance and have traveled the distance in three and one-half hours.
Therefore, we are of the opinion that from the facts and circumstances adduced in evidence in the instant case, the jury could have reasonably inferred and were warranted in finding that if the operator at Little Bock had used ordinary care in transmitting the message from Little Rock to Hope at 4 o’clock, the plaintiff could have reached the bedside of her daughter shortly after 10 o ’clock p. m. on Christinas day, and would have been with her daughter several hours before she died.
One of the grounds of the defendant’s motion for a new trial is that “the court erred in admitting evidence over defendant’s objection as shown by the defendant’s exceptions made and entered of record.” In the case of McClintock v. Frolich, 75 Ark. 111, the court held:
“A motion for new trial on the ground ‘that the court erred in admitting evidence on the part of the defendant which was excepted to at the time by the plaintiff,’ without naming the witness or pointing out the evidence is too general, and does not present any question for consideration.”
Again, in the case of Miller v. Nuckolls, 77 Ark. 64, the court held:
“A ground for new trial because of errors of law in admitting evidence, ‘as shown by the stenographer’s transcript thereof,’ is too indefinite to call the court’s attention to the particular error complained of.”
Therefore, it will be seen that the attention of the court was not called in the motion for a new trial to the particular error complained of in the admission of evidence, and the assignment is too indefinite.
The court expressly limited the right of the plaintiff to recover to negligence on the part of the defendant after 4 o’clock p. m. Therefore, there was no error in refusing to give defendant’s instruction numbered 2 on the question of contributory negligence.
No argument is made by counsel in their brief to reverse the judgment because the verdict is excessive, and the judgment will be affirmed. | [
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Wood, J.,
(after stating the facts). The contract for the sale of the engine was in writing and contained an express warranty, as follows:
“The above engine will have been tested before shipment and shall develop its rated brake horsepower. We will furnish upon application a record test. We will replace or repair free of charge, f. o. b. factory, any faulty material or faulty workmanship, within one year from date of invoice.”
There is no pretense that the appellant has failed to comply with this warranty; but the evidence which the appellee introduced over the objection of appellant, tended to show an entirely different warranty from that contained in the written contract. The testimony comes within the familiar rule, that “Parol evidence is inadmissible to vary, qualify or contradict, to add to or subtract from, the absolute terms of a valid and unambiguous contract,” as held in Delaney v. Jackson, 95 Ark. 131.
The appellee does not allege in his answer, nor does the evidence adduced, tend to prove that appellant’s agent made any intentionally false or misleading representation, by which appellee was induced to enter upon the contract. There is no pretense that the statements of McClellan to appellee were false and fraudulent — that is, made with the wilful intention of misleading appellee, to his prejudice, and the most that could be said of the statements of McClellan, as shown by the testimony, is, that they were' expressions of his opinion as to the quality of the engine that appellant was proposing to sell, and that the results of the operation of the engine showed that he was mistaken in his judgment.
The defense of appellee was not based upon any tort of appellant’s agent outside of the written contract. The effect of the oral testimony adduced by the appellee was to engraft upon the written contract, a warranty by parol, contradicting the terms of the written warranty. This can not be done. Lower v. Hickman, 80 Ark. 505. See also, Bradley Gin Co. v. J. L. Means Machinery Co., 94 Ark. 130.
The general rule is, that upon the sale of chattels, the law implies no warranty of- quality. That is left as a matter of contract between the parties to the sale. But as said in Curtis & Co. Mfg. Co. v. Williams, 48 Ark. 325: There are exceptions to the rule as well established as the rule itself. One of these exceptions is: “Where a manufacturer undertakes to supply goods manufactured by himself, to be used for a particular purpose, and the vendee has not had the opportunity to inspect the goods. In that case, the vendee necessarily trusts to the judg-' ment and skill of the manufacturer, and it is an implied term in the contract that he shall furnish a merchantable article, reasonably fit for the purpose for which it was' intended.” See also, Weed v. Dyer, 53 Ark. 155; Bunch v. Weil, 72 Ark. 343; Main v. Dearing, 73 Ark. 470.
Appellee relies upon the doctrine of these cases to' sustain the instructions given by the trial court. But, under the facts of this record, the doctrine of the above cases is wholly inapplicable. Here the gasoline engine was a merchantable article. It was manufactured for the purpose of running machinery, and there is no pretense that it was not fit for that particular purpose. The appellee contends, and his evidence tends to show that it was not sufficient for the particular purpose for which appellee intended it, but there is no implied warranty that it should be adapated to run appellee’s machinery in a manner satisfactory to him. This was a matter to be compassed by his contract and comes within the general rule above and not the exception. If appellee desired a warranty that the engine purchased would run his machinery, he should have seen that a provision to this effect was embodied in the written contract before he accepted the same.
The cause was tried upon an erroneous conception of the law and for the errors in admitting the evidence and giving the prayer objected to, the judgment is reversed and the cause is remanded, with direction to enter a judgment in favor of the appellant for three hundred dollars dollars ($300) with interest, and for the sale of the engine, unless the judgment is paid within a time to be fixed by the court. | [
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McCulloch, C. J.
The subject-matter of this litigation is a lot, forty-two feet in width, fronting on Main street in the city of Little Rock, on which is situated a brick store building. Appellees owned an undivided two-fifths of the ground by inheritance from Julia Robbins, the former owner, who died intestate in the year 1897. Appellant owns the other undivided three-fifths interest by purchase from the other heirs of Julia Robbins, and he is also the owner of the building on the lot, which was constructed under a lease contract whereby the ownership of the building was reserved in the lessee who constructed it.
Julia Robbins was adjudged by the probate court of Pulaski County to be a person of unsound mind, and George E. Dodge was duly appointed guardian of her person and estate. Dodge, as such guardian, entered into a contract with Isaac and Joseph Wolf, whereby he leased said lot to them for the term of twenty years from September 1, 1892, the lessees to pay a rental price of $1,200 per annum and pay all taxes assessed during the term. The contract contained the following stipulation:
‘ ‘ Said lessees shall have the option at the expiration of this lease to purchase said lot at its appraised cash value, said value to be determined by appraisement to be made by two competent disinterested persons, one of which shall be selected by each of the parties hereto, and in case these two can not agree, they shall select a third disinterested person to decide, and such decision shall be final and binding on all parties, and upon payment of the price of said lot so ascertained, a good and sufficient deed shall be executed to said lessees by said lessor, or bis successors in office, conveying absolutely in fee simple the said lot to the said lessees. At the expiration of this lease, if the lessees do not exercise their right to purchase the ground, the lessor shall pay to the lessees in cash the then value of the building and the improvements on said ground, such values to be ascertained in the same manner as is hereinbefore provided for ascertaining the value of the ground, and thereupon said buildings and improvements shall become the property of the lessor. ’ ’
This contract appears to have been executed as a renewal of a former contract between the same parties under which the building on the lot had been constructed by the lessees.
An order of the probate court was duly made and entered authorizing said guardian to execute said contract.
The lessees named in the contract assigned the lease to Bertha Ottenheimer, who, on July 31, 1911, assigned the same to appellant, who had theretofore become the owner of an undivided three-fifths interest in the land by purchase from the heirs of Julia Robbins.
Prior to the expiration of the lease appellant notified appellees of his intention to exercise the option to purchase said property under the terms of the contract, and appellees, in response, notified him of their refusal to sell and convey their interest in the property.
After the expiration of the lease appellees instituted this action against appellant in the chancery court of Pulaski County praying that “on the adjustment of the amounts to be paid by plaintiffs for said building and the title vested in them, respectively, that the said lot and premises be partitioned among the several owners as their interest may appear, and if an equitable partition can not be made in kind, that the said property be sold free of all claims, present, future and contingent, and the proceeds equitably distributed.”
Appellant demurred to the complaint, but the demurrer was overruled, and he then answered. Among other things he alleged that appellees inherited their interest in 'the property on the death of Julia Robbins, which was about fifteen years before the expiration of the lease, and thereafter accepted their part of the rental price, of the building, thus ratifying the terms of the contract, and that they are estopped to question the power of the guardian to enter into the contract giving an option to the lessees to purchase.
The cause was tried upon an agreed statement of facts, and the court rendered a decree in accordance with the prayer of the complaint, ordering the property sold, including the building, so that the proceeds could be distributed according to the rights of the parties.
The court declared that part of the contract giving the lessees the option to purchase the lot at the expiration of the specified term to be void and unenforceable; and the principal question presented to us for decision is whether it was within the jurisdiction of the probate court to authorize or approve such a contract.
It is very clear that this was not within the jurisdiction of the probate court, which is confined, with respect to control of the property of infants and insane persons, to such limits as are prescribed by the statute. In other words, the court possesses only such powers in that respect as the statute confers. This rule is stated by Judge Eakin, in the case of Myrick v. Jacks, 33 Ark. 425, as follows:
“Courts of probate have, by the statute, been entrusted with some limited powers over the estates of minors in the hands of administrators and guardians, and within the scope of those statutory powers they are certainly entitled to all presumptions according to superior courts of record. But they had no such jurisdiction by common law, and beyond the limits given they have none now. When they proceed to do a thing which, by proper proceedings and upon a proper case made, .they are authorized to do, it will be presumed they have acted correctly; or if the proceedings have been irregular or the conditions of jurisdiction not strictly fulfilled, it is error to be corrected on appeal or certiorari. But if they undertake to make an order not authorized under any circumstances, although they may have jurisdiction over the same property for other purposes, it is void.”
Applying that rule, this court held, in the case of Meyer v. Rousseau, 47 Ark. 460, that the power to exchange the lands of an infant for other lands was not included within the power to sell such lands and that it was not within the jurisdiction of the probate court to authorize an exchange.
The doctrine of that case was reaffirmed in McKinney v. McCullar, 95 Ark. 164.
This rule applies, of course, to orders with respect to the property of persons of unsound mind as it does to the property of the estates of decedents and of infants.
Now, the contract, so far as it related.to the sale of the real estate, was entirely executory and amounted only to an option to the lessees to purchase at the expiration of the term. There appears nowhere in the statutes of this State any authority in the probate court to authorize the execution of such a contract. The statute authorizes the probate court to make an order directing the guardian to mortgage or lease the property of his ward or to sell the same at public vendue to the highest bidder and report his proceedings in that regard back to the court for approval. But this does not include the power to enter into a contract for a private sale of property, much less to enter into an executory contract giving a person an option to purchase. Meyer v. Rousseau, supra.
It is next insisted that appellees, on account of having received their part of the rents under the contract for many years, are estopped to plead the invalidity of the contract. But we are of the opinion that this contention is unsound. The contract was not merely voidable; it was absolutely void, because the probate court possessed no power to direct the guardian to execute it. Being void in the beginning, it gained no vitality by the succession of the heirs.
The invalidity of that part of the contract did not, however, deprive the lessor of the other benefits arising under it, and the heirs of the lessor were not put to an election either to ratify the contract as a whole, including the option to purchase, or to let the lessee occupy the premises for the balance of the term free of rent. In other words, the lessees had rights under the contract notwithstanding the invalidity of one feature, and it was not within the power of the heirs of the lessor to repudiate the contract; therefore, they were not,put to an election, either to affirm or repudiate it as a whole.
Another objection to the decree is that it ordered the sale of the building as a part of the realty. Appellees concede, in their complaint, appellant’s ownership of the building, and the sale is only for the purpose of converting the whole property into money so that it can be distributed between the parties according to their .rights. Appellees had the right, under the contract, to take over the building at a price to be settled by appraisers, but they were not bound to do so. Their failure to take advantage of that privilege doubtless gave appellant, under a fair interpretation of the contract, the right to remove the building; but he has not elected to do so or asked to be given the privilege to do so. His attitude here is merely that of insisting upon his ownership in the building without conceding to appellees the right to enjoy their interest in the property since the expiration of the lease. In this state of the case the only thing that a court of equity can do is to sell the whole property, ascertain the value of the building, and distribute the proceeds of the sale in accordance with the rights of the parties. Stirman v. Cravens, 33 Ark. 376. In this instance the court reserved for further consideration the ascertainment of the rights of the parties in the property, including the value to be placed upon the building owned by appellant. It would perhaps have been better for the court, before ordering the sale, to determine the question of value; but no objection seems to be urged against the decree on that score.
With appellant’s rights protected in his ownership of the building, we can discover no valid objection to the chancellor’s decree ordering a sale of the property for distribution of the proceeds. The decree is therefore affirmed. | [
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Smith, J.
This is a suit by the city of Malvern, a city of the second class, against W. H. Cooper and A. I. Roland to recover the sum paid by the city for the construction of a concrete walk, built by this city, abutting the property of appellees. The proof on the part of the city tended to show that the council passed an ordinance on the 5th day of August, 1909, requiring all owners of real property abutting on Main street in said city, be tween South First and South Fourth streets, or Page avenue, to construct sidewalks as provided for in said ordinance. That on and prior to the 7th day of November, 1910, the appelee, W. H. Cooper, was the owner of certain lots on Main street, between First and Fourth streets, but had failed to construct the walks in accordance with the provisions of said ordinance, and that a written notice to construct the walks within twenty days had been given him, and upon his continued failure and refusal to build the walks and after the lapse of more than thirty days after the service of the notice to construct them, the city, through its street committee, contracted with one Charles Bryant to construct said sidewalk in the manner provided for in said ordinance, which contract was ratified and confirmed by the city council and in accordance with said contract, the said Bryant built the walk at a cost of $69.25, which sum was paid to the said Bryant by the city of Malvern. That subsequently Cooper sold to A. I. Roland a part of one of said lots.
The city prayed judgment for this sum and for a penalty of six per cent and interest at the rate of 6 per cent, and that the whole amount thereof be declared a lien on said property and that the same be sold to satisfy said lien.
The answer denied the material allegations of the complaint and raised the following issues:
(a) That there was no ordinance; (b) nor any grade established; (c) nor any notice given the abutting property owners; (d) that section 5542 of Kirby’s Digest, which it was claimed, gave the city the authority to pass the ordinance under which it had proceeded in the construction of the walk, applied only where no original sidewalk existed, but did not apply where the property owner already had a sidewalk, and that a property owner who had a sidewalk equal to the one which the city proposed to require (which appellee had) was entitled to a day in court, before determining whether his walk should be torn np and destroyed and the property owner required to build another.
Under its police power, thé Legislature of the State has the authority to pass laws permitting its cities to pass ordinances for the construction of walks and to prescribe the kind which the property owners therein shall build, and when the cities have exercised this power by the passage of by-laws and ordinances, property owners therein are under the duty of complying therewith, and the failure to obey can not be excused by such a showing as is here attempted to be made, that the property owner had a good and sufficient walk. The provisions of section 5542 of Kirby’s Digest, so far as they relate to the authority of a city to pass an ordinance similar to the one under consideration, is as follows :
“In order to better provide for the public welfare, safety, comfort and convenience of the inhabitants of cities of the first and second class, the following enlarged and additional powers are hereby conferred upon said cities, viz:' The council of any such city, by ordinance, resolution or order shall have the power to compel the' owners of any property abutting on its streets or public squares to build, rebuild, maintain and repair foot pavements or sidewalks, improvements and curbing there along, and to designate the kind of sidewalk and curbing improvements to be made, the kind of material to be used, the specifications to be followed, and the time within which such improvement is required to be completed. ’ ’
Thus it is seen that the power is conferred not only to require walks to be built, but also to be rebuilt and to be maintained and repaired according to prescribed specifications.
The ordinance passed pursuant to the above section will not be set out in full because of its length, but it may be said in answer to appellee’s objection (b) that no grade was established; that the ordinance provides with great particularity and certainty how the walk may be constructed and to what grade and of what composition.
Upon the question of the sufficiency of the notice, it may be said that the deputy marshal, who was also the street commissioner, testified that he served a notice upon appellee, Cooper, notifying him to build the walk and that Cooper declined to do so upon the ground that he had a better walk than the one which the city proposed to build, and that he would take the case to the highest courts in resistance to the city’s demands. Appellee, as a witness, did not deny the service of the notice, but upon the contrary there was offered in evidence a notice, dated April 10, 1911, which he gave the street commissioner, forbidding him interfering with his walk, and he alleged in his answer that he gave this notice not to tear up his walk before it was torn up.
The remaining and real question in the case is whether the city had a valid ordinance which authorized the action taken by it. It is contended by appellee that the records of the proceedings had by the city council as shown by its minute book, recites that the council held its regular session on August 6, 1909, instead of August 5, 1909, the date of the ordinance in question and that said records import absolute verity and can not be contradicted by parol testimony, and that as the recorder’s record of the meetings of the council shows the meeting to have been on the 6th and not on the 5th, that no valid ordinance could have been passed on the 5th. This minute book does recite that the council met on the 6th, but that it is not the only recital it contains, as it appears from the minute book that the meeting was a regular one held on the 6th day of August. Now the proof is undisputed that the time for regular meetings of the council was on the first Thursday of each month, and the first Thursday of August was the 5th and not the 6th. Moreover, the said ordinance had been recorded in the book which section 5473 of Kirby’s Digest required should be kept for that purpose, and was authenticated by the signature of the mayor and recorder, and as authenticated by them, showed its passage on August 5, 1909.
The section last mentioned provides that “all bylaws or ordinances shall as soon as may be after their passage be recorded in a book kept for that purpose, and be authenticated by the signature of the presiding officer of the council and the clerk.” This is the permanent record, which the law intends shall perpetuate the evidence of the ordinances passed by the city’s council, and the ordinances and by-laws as they there appear are not only presumed to be correct, but printed copies of them published by the city’s authority, or transcripts therefrom, certified by the city’s clerk, are received in evidence for any purpose for which the original ordinance would be received. Kirby’s Digest, § 5471.
The burden was not therefore upon the city to establish the validity of its ordinance as that presumption in its favor is indulged when the record is produced, containing the ordinances which the law requires to be kept for that purpose. Heno v. Fayetteville, 90 Ark. 292; Van Buren v. Wells, 53 Ark. 368; Kirby’s Digest, § 3066.
This, however, is a mere presumption and might be overcome by competent evidence that the essential requirements of the statutes of the State had not been complied with in the enactment of these ordinances. The proof here offered to accomplish that purpose has been set out and we think it insufficient for that purpose. Full recognition is given to the authority of tb ose cases which hold that the courts do not take judicial notice of ordinances and that parol evidence is not admissible to prove an ordinance or resolution of a city council, and the conclusions here announced do not offend against these rules. The recital of the minute book that the council’s meeting was on August 6, 1909, was a mere misprision of the recorder for those minutes also recite that the meeting was a regular meeting and the evidence is undisputed that the first Thursday of each month was the regular meeting day and that that date was in fact the 5th and not the 6th. Butler v. Kavanaugh, 103 Ark. 109.
Moreover, in addition to the ordinance, which we have been considering, the town council passed on December 2,1909, the following resolution:
“Be it resolved by the city council of the city, of Malvern, that the city marshal of the city of Malvern notify all property owners in the city of Malvern abutting on both sides of Main street between South First street and Fourth street, be required to lay concrete sidewalks in accordance with the provisions of the ordinance of said city, passed August 5, 1909, and in default of same that the city will proceed to hire same built and when so constructed the charge for same will become a lien on the property abutting said sidewalk.”
In the case of Gregg v. Stuttgart, 88 Ark. 597, a property owner was directed by a resolution of the council of the city of Stuttgart to build a sidewalk in accordance with the provisions of an ordinance of that city, the details of which were not set out in the resolution as passed, and it was objected that the resolution was void for the reason that the ordinance failed to designate the kind of sidewalk, the kind of material and the specifications. But it was there said that if the specifications were not sufficiently definite, that fact afforded no ground for complaint to the land owner, that when he builds such sidewalks as is called for in the notice served upon him, he has fulfilled his duty; and whether it is such an one as desired, can not be questioned by the city, because it did not specify more particularly the kind wanted. And it was contended that the validity of the city’s proceedings must be tested by its ordinance and not by resolution. But it was there said, ‘ ‘ There is no reason why the proceedings can not be tested under both. The resolution is evidently supplementary, and in aid of the enforcement of the ordinance. It is somewhat is the nature of an amendment, making certain some of the matters left at large in the general ordinance. The council is expressly authorized by the statute to require sidewalks to be constructed by ordinance, resolution or order, and, therefore, the form of the city’s mandate may be in any one of these methods of procedure, which the council may see fit to adopt; or, if it pleaseth the council, it may adopt all of them to reach to the same end. It is a mere choice of tools or weapons to require the property owner to lay a sidewalk.”
The chancellor made no finding except that the complaint should he dismissed for want of equity and it was accordingly dismissed and all costs assessed against the city.
We are of opinion that the chancellor erred in his finding and order, and the decree is accordingly reversed and remanded with directions to enter a decree in favor of the appellant, city of Malvern, for the sum of $69.25, and the penalty of 6 per cent thereon, and interest also at the rate of 6 per cent from the date of the city’s payment to the contractor and that the whole amount thereof be declared a lien on appellee’s property, described in the complaint, and the same ordered sold, in satisfaction of said lien pursuant to the provisions of section 5542 of Kirby’s Digest, if the same is not paid within the time fixed by the court. | [
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McCulloch, C. J.
Appellant, Mary F. Corney, was formerly the wife of appellee, B. B. Corney, and they resided in Crawford County, Arkansas, where appellee obtained a decree for divorce, which was rendered by the chancery court of that county on May 6, 1907, on the ground of adultery..
Subsequently appellant filed a complaint in that court to set aside the divorce decree, and on January 13, 1910, a decree was rendered vacating the former decree for divorce. Appellee, B. B. Corney, prosecuted an appeal to this court. The case came on for hearing, and the order of the chancery court vacating the divorce decree was reversed and the petition was dismissed, leav ing the original decree in force. 97 Ark. 117. The judgment of this court was rendered on December 19, 1910.
On December 23, 1912, appellant filed her complaint in the chancery court of Crawford County praying that the judgment of the Supreme Court be reviewed, reopened and set aside so as to leave the order annulling the divorce decree in full force and effect. The chancery court sustained a demurrer to the complaint and rendered a decree dismissing it, from which she has prosecuted an appeal to this court.
Most of the matter set forth in the complaint relates to the original cause of action for divorce and appellant’s defense thereto, and also to the original grounds for vacating the divorce decree. Of. course, these matters are concluded by the former judgment of this court.
The only grounds urged for setting aside the judgment of this court are found in the fifth paragraph of the complaint, wherein it is alleged that appellee did “cause to be prepared an answer' and cross complaint to plaintiff’s complaint redundant with new matter, and was read for the first time by this plaintiff after the cause had been submitted and passed upon by the Supreme Court, and did proceed to surreptitiously cause same to become a matter of record in the files of this court on or about the 17th day of November, 1910, and did secure from the clerk * * * a certified copy of this pretended answer, and the same dated and file marked April 30, 1909, and was made a part of the record in the Supreme Court on the 17th day of December, 1910.”
This allegation is an attempt to set up fraud on the part of appellee in the procurement of the judgment of this court. But we are of the opinion that it falls short of presenting a question of fraud. The substance of the allegation is that appellee, while the cause was pending in this court, wrongfully and fraudulently procured the filing and antedating of a paper purporting to be his answer in the cause and filed it in this court as a part of the record. The complaint does not allege what the contents of this answer were so as to show that it contained any material matter. The allegation is that the answer and cross complaint was “redundant in new matter.” An examination of this opinion of this court when the case was here on appeal shows that we disposed of it, not upon the pleadings, but upon the proof taken in the trial below.' In order to show that the judgment of this court was obtained by fraud, it is necessary to allege specifically what the fraud consisted of, and that it was material, so that it can be seen that the judgment of the court was or might have been affected by it. Fraud is never presumed, and must be specifically alleged and proved in order to entitle the complaining party to relief.
The judgment of this court should not be set aside merely because the answer was wrongfully put into the record, unless it be shown that it was material and had some bearing upon the decision of the case.
The allegations of the complaint are insufficient, therefore, to constitute a proper allegation of fraud in the procurement of the judgment, and the chancellor was correct in sustaining the demurrer.
Counsel for appellee insist that the demurrer was properly sustained on the additional ground that the chancery court had no jurisdiction to review and sets aside a judgment of this court.
We think that the suit in the chancery court was the appropriate remedy if fraud had been properly alleged. The statutes of this State provide that the court in which a judgment has been rendered shall have the power, after the expiration of the term, to vacate or modify such judgment on the ground, among other things, of “fraud practiced by the successful party in the obtaining of the judgment or order.” Kirby’s Digest, § 4431, 4th subdivision.
This statute does not apply to judgments of this court, for the proceeding thereunder is the exercise of original jurisdiction, which this court does not possess. Jacks v. Adair, 33 Ark. 161.
In the absence of a statute giving a complete remedy at law, a court of equity is the appropriate forum for granting relief against fraud in the procurement of judgments.
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Hast, J.,
(after stating the facts). To reverse the judgment, counsel for the defendant invoke the general rule that the employer is not responsible for the negligence of an independent contractor. They concede that there are exceptions to the general rule, and that one of them is that where a person causing something to be done, the doing of which casts on him a public duty, he can not escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. They do contend, however, that the piling of the gravel in the street without a light was purely collateral to the work contracted to be done, and was entirely the result of the wrongful acts of the contractor, Hale, and therefore he alone is liable. We can not agree with their contention. The city council has entire control of the streets of the city and it was its duty to the public to keep them unobstructed and safe for passage in the ordinary modes of travel.
In recognition of its duty to the public, the city council provided in the ordinance that the defendant, in the work of laying and repairing its pipes and. appliances, should not unnecessarily obstruct or interfere Avith the use of the streets of the city. The defendant when it began the work of tearing up the streets of the city for the purpose of laying its gas mains assumed all the obligations of the city to the public, and it became its duty to exercise ordinary or reasonable care in the laying and repairing of its mains so as to prevent such work from obstructing the street or endangering those using it. In Chicago City v. Robbins, 2 Black (U. S.) 418, and again reported under the style of Robbins v. City of Chicago, 4 Wall. (U. S.) 657, Bobbins was held liable for damages by a pedestrian upon the streets of Chicago falling into an area which his contractor had made before a building he Avas erecting in that city. In the first opinion, the court said: “Bobbins’ duty was absolute to see that the area dug under his direction and for his benefit should be safely and securely guarded and, failing to do so, his liability attached and the jury should have been told so.”
In the opinion on the second appeal, it is said: “The import of the decision of this court in reversing the former judgment of Ihe circuit court, and remanding the cause for a new trial, was that the party contracting for the work Avas liable in a case like the present, where the Avork to be done necessarily constituted an obstruction or defect in the street or highway which rendered it dangerous as a way for travel and transportation, unless properly guarded or shut out from public use; that in such cases the principal for whom the work was done could not defeat the just claim of the corporation or of the injured party by proving that the work which constituted the obstruction or defect Avas done by an independent contractor.”
In the case of Hawver v. Whalen, 49 Ohio St. 69, 14 L. R. A. 828, it Avas held that the owner of a city lot, who made an excavation in the sideivalk for coal cellars, to be used in connection with the building, was bound to guard it with ordinary care, and that this duty could not be delegated to an independent contractor employed to construct the cellar. The court said:
“There is much innate justice in a rule of law that declines to permit one who causes work to be done, the performance of which though not necessarily injurious to the persons or property of others, yet necessarily creates conditions inimical to their safety, to exonerate himself from all duty towards those whom he had thus exposed to danger.”
In the case of Woodman v. Metropolitan R. R. Co. 149 Mass. 335, 14 Am. St. Rep. 427, the court held:
‘ ‘ Where a city railroad company is engaged in laying a track in a public street, and negligently leaves rails projecting beyond a temporary barrier inclosing the place where the track is being laid, it is liable in damages to one, who, travelling at night, and exercising due care, is injured by coming in contact with such projecting rails, notwithstanding the fact that the injury was sustained at other than a regular street crossing, and that the work was being done by an independent contractor. ’ ’
In the case of Village of Jefferson v. Chapman, 11 Am. St. Rep. 139, the Supreme Court of Illinois said:
“Another exception to the general rule relieving an employer from liability for an injury occasioned by an independent contractor is where the party causing the work to be done is under a primary obligation imposed by law to keep the subject-matter of the work in a safe condition. The principle upon which this exception is predicated is, that where a duty is so imposed, the responsibility for its faithful performance can not be avoided, and that the party under such obligation can not be relieved therefrom by a contract made with another for the performance of such duty.”
The facts of the present case, we think, bring it within the exceptions we have noted. Walnut Street was paved with wooden blocks and was a public street over which, there was much travel. The defendant, with its own servants, tore up the street for the purpose of laying its mains, and piled the blocks with which it was paved next to the east curb of the street. After it had laid its mains, and refilled the trench, Hale, under his contract with the defendant, began the work of repaving the street. Before the paving blocks could be replaced in the street it was necessary to prepare and lay a concrete foundation for them to rest upon. The concrete foundation was made by placing a mixture of gravel and cement upon the dirt, and it was necessary that the gravel and cement should .be mixed near the place where it was to be spread upon the surface of the street. To do this, it was also necessary to pile the gravel in the street preparatory to mixing it with the cement for the purpose of constructing the concrete foundation. The piling of the gravel in the street for this purpose necessarily rendered the street unsafe for night travel. This was a condition which did not depend upon the care or negligence of the contractor, but the danger arose from the very nature of the work contracted for and could only be averted by placing lights or danger signals to warn those travelling the street at night that the obstruction was there. That is to say, the performance of the work in the usual and only practical way it could be performed, necessarily created a condition which would bring wrongful consequences unless guarded against, and inasmuch as the contract could not have been performed by Hale except under the right of the defendant, the defendant was under a primary obligation imposed by law to keep in safe condition the subject-matter of the work, which in this instance was the street. The injury sustained was caused by the gravel, which had been left in the street, and which came within the duty of the defendant to persons travelling on the streets to see that they were kept safe.
In such a case, the responsibility for the faithful performance of the work can not be avoided, and the defendant being under such obligation can not be re lievecl therefrom by a contract made with another for the performance of that duty. In cases like the present, where the employer owes a public duty to keep the subject-matter of the work in safe condition, it is only where the negligence complained of is entirely collateral to and not a probable consequence of the work contracted for that the employer can escape liability; and we hold that the negligence complained of was not collateral. The question of negligence was submitted to the jury under proper instructions and the judgment will be affirmed.
McCulloch, C. J. and Wood, J. dissent. | [
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Kirby, J.,
(after stating tbe facts). It is insisted for' reversal that tbe court erred in not directing a verdict for appellant and that appellee was guilty of contributory negligence as a matter of law.
It may be regarded as undisputed that appellee boarded tbe car before tbe train started, talked with bis son a minute or two on tbe rear platform and when tbe conductor gave warning that be was ready to go appellee stepped inside tbe coacb, and upon a glance over it discovered that it was crowded, and noticed only one seat not occupied by a passenger, an inside seat, which was filled with bundles and packages, belonging to tbe three young ladies, who occupied tbe two seats facing each other. He braced himself near the door-facing and stood a minute or more talking to another man when the collision occurred, throwing him violently against the stove and breaking his ribs. Another one of the passengers testified that there was a seat unoccupied where he and two other men were seated on two seats facing each other, which appellee could have taken. None of the passengers who were seated were injured, nor was the passenger who was standing with the appellee at the time, although he was thrown to the floor by the jar and jolt.
There was no printed rule, or notice, in the car, warning passengers not to stand in the car, although there was a notice on the outside of the door of the car, warning them against standing on the platform thereof.
In St. Louis, I. M. & S. Ry. Co. v. Harmon, 85 Ark. 507, it was said: “It has never been held by this court, nor do the authorities generally establish the proposition, that in the absence of such rule promulgated and posted by the company for ths protection of passengers standing in the car would as a matter of law constitute negligence, unless the circumstances were such as to render it obviously dangerous to stand.”
* There was no evidence indicating that it was obviously dangerous to stand a minute or so in the coach before being seated and the train was just leaving the station and necessarily proceeding at a slow rate of speed until it could get started, and the injury occurred within thirty-seven rails’ length of the starting point. It can not be said as a matter of law that appellee was bound to proceed instantly and procure a seat at the expense of being unnecessarily hasty in beating other passengers to a seat or in crowding them and removing their bundles from unoccupied seats that he might sit down. He could have been, although he did not say he was waiting for the conductor’s return that he might have him to require the packages removed and furnish him a seat.
Standing in a passenger car is not necessarily neg ligence as a matter of law, and ordinarily it is a question for the jury, and in this case the passenger’s standing can not be said as a matter of law to have been protracted and unnecessary. Our court has held that a passenger upon a freight train even is not guilty of contributory negligence per se in standing up, unless the standing was so prolonged and uncalled for that the facts could be susceptible of but one conclusion.
In Pasley v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 25, it said: “It can not be said as a matter of law that every time a passenger on a freight train arises from his seat, he is guilty of contributory negligence. It is only when his standing is so protracted or so uncalled for that the court can say, as a matter of law, that it is unnecessary and imprudent that the question of his negligence will be taken from the jury.” See also St. Louis, I. M. & S. Ry. Co. v. Harmon, supra; St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 227; St. Louis, I. M. & S. Ry. Co. v. Hartung, 95 Ark. 225; St. Louis, I. M. & S. Ry. Co. v. Richardson, 87 Ark. 104; St. Louis, I. M. & S. Ry. Co. v. Gilbreath, 87 Ark. 572; 6 Cyc. 650; 3 Hutchinson on Carriers, 1216.
This case is not like that of Crum v. St. Louis, I. M. & S. Ry. Co., 71 Ark. 592, relied upon by appellant, and the decision therein is not controlling here.
There the plaintiff stood ten minutes on a freight train while it ran a mile and a half, his excuse being that he was waiting for the ice to melt and cool the water and the court thought the water would have cooled as effectually and as soon without his standing to watch the operation and that the exposure caused thereby was unnecessary and held him guilty of contributory negligence as a matter of law.
The court did not err in refusing to direct a verdict for appellee and the case was properly submitted to the jury on instructions fairly presenting the issues and the judgment is affirmed. | [
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Smith, J.
This was an ejectment suit instituted by the appellant against the appellee, in the circuit court of Arkansas County, to recover certain lots situated in the town of Stuttgart. The action involved the title to a parcel of ground, 140 by 50 feet, in the southwest corner of block 11 of Improvement Company’s Addition to the town of Stuttgart. Appellant contends that the above parcel of land is the west 140 feet of lot No. 9, while appellee contends that it is the west portion of lot No. 10. Appellant has a deed to lot No. 9, and if that lot is located at the southwest corner of block No. 11, he had the title to the property in question, unless appellee had the title by virtue of the seven-year statute of limitations and if lot No. 9 is not located in the southwest comer of block No. 11, then appellant has no title whatever to the lot in controversy. The complaint alleged that the defendant was in the unlawful possession of the said lot No. 9, and had been for some time prior to the institution of this suit, but the defendant answered and disclaimed any right, title or interest in the lands described in the complaint and denied that she was or had been in possession of any part thereof. This litigation involves the question as to which of two plats of said block No. 11, in which the property is situated, is correct. It appears that this block was surveyed and platted by one H. J. Campbell, and there was offered in evidence two plats, each of which was said to be the correct and original plat, made at the time of the survey. Defendant claims under a plat which is designated as plat No. 1, and according to it lot No. 10 was situated in the southwest corner of the block. And appellee alleged in her answer that an untrue and incomplete and imperfect copy of the plat was made or drawn, and without authority of the city of Stuttgart or of the improvement company, which company owned the land, a plat was filed for record in the office of the clerk of Arkansas County, and now appears of record in that office, and according to that plat, designated as plat No. 2, lot No. 9 was the southwest corner lot. In addition to her disclaimer, that she was in possession of the land described in the complaint, appellee further alleged, that she and her grantors had been in the open, notorious, continuous, actual and adverse possession of the land occupied" by her for a period of more than seven years, and she claimed title under this possession. She asked that the cause be transferred to equity and that said plat No. 2 be cancelled and that her title to said premises be quieted as against plaintiff, or any one claiming under him. The title of the respective litigants is set out by them in the complaint and answer and exhibits thereto, but it will be unnecessary to abstract them here, for the reason that appellee does not deny appellant’s title to the lots described in the complaint, and denied she had possession thereof. Appellant’s right of possession depends upon the establishment of the correctness of plat No. 2, under which he claims and upon the determination of the question of appellee’s adverse possession.
The right of possession was of course triable at law, and if that was the only question involved it would have been error calling for the reversal of the case to transfer the cause to equity. Cole v. Mette, 65 Ark. 503. Or if the defendant could have secured all the relief to which she was entitled, under the allegations of her answer, in a court of law, it was error to. transfer the cause. The cause was transferred to equity over appellant’s objection and his motion to remand was overruled and has exceptions were saved to that action of the court.
Under the allegations of the answer, was appellee entitled to any relief which she could not have secured in a court of law? We think she was. True, in a trial at law she might have had the fact determined that her adverse possession had ripened into title, and a recovery defeated on that account; or by determining that plat No. 2 and not plat No. 1 was the correct plat, a recovery of the possession of the lot might have been defeated. But though appellee might have defeated appellant’s recovery of the lot, this is not all the relief to which she was entitled, and which she prayed might be granted her, upon the transfer of the cause. She prayed that her title might be quieted, and this was relief which she might affirmatively have had in a suit brought by her for that purpose in equity. Plat No. 2, which had been filed for record, showed that she was in possession of land she did not own if this was the genuine plat, and by it appellee could not have shown a good paper title to her lot and a suit to quiet her title by cancelling that plat could only have been brought in equity.
Appellant insists that the plat could not be reformed in its entirety, because there were owners who were not before the court. This is true, but that fact is no reason why she should not have had that relief against one who was before the court, and whose claim cast the cloud upon the title.
No question is made about the correctness of the chancellor’s finding, and it appears to us to be authorized by the evidence; but appellant says the questions involved should have been determined in the circuit court. But for the reasons stated, we think the cause should have been transferred and the decree of the chancellor is affirmed. Ashley v. Little Rock, 56 Ark. 391; Cook v. Jones, 80 Ark. 48. | [
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McCulloch, C. J.
Appellant was indicted by the grand jury of Cross County for violation of a special statute approved April 13, 1905, requiring appellant to erect and maintain a depot at Levesque, a station on its line in Cross County, Arkansas, and to “keep an agent at its depot at Levesque * * * to sell tickets, receive freight, and issue bills of lading therefor, and to deliver freight.” The statute provides that each violation of its terms shall constitute a misdemeanor, punishable by fine of not less than $50.00, nor more than $100.00, and that each day of such failure or refusal to keep an agent at said depot shall constitute a separate offense.
There was a trial before a jury, which resulted in appellant’s conviction of violating the statute, and judgment was rendered for recovery of the fine assessed by the jury.
There are two questions raised on this appeal, one as to the sufficiency of the indictment, the other as to the legal sufficiency of the evidence.
The validity of the indictment is attacked on the ground that it does not contain a specification of the name of the court in which the indictment was returned.
The statute provides that an indictment must contain “the title of the prosecution, specifying the name of the court in which the indictment is presented, and the name of the parties.” Kirby’s Digest, section 2243.
The caption of the indictment contains the style of the case, “State of Arkansas v. St. Louis, Iron Mountain & Southern Railway Company,’’ but the name or style of the court is not mentioned in the caption. The preliminary clause of the indictment reads as follows: “The grand jury of Cross County, in the name and by the authority of the State of Arkansas, accuse the St. Louis, Iron Mountain & Southern Railway Company, a corporation, of the crime of failing to .keep agent at depot at Levesque, committed as follows, towit: ’ ’
We are of the opinion that that is sufficient, by necessary implication, as a specification of the name of the court. There can be but one court in the county by which a grand jury is empanelled, and that is the circuit court; and a specification that the presentation is by ‘ ‘ the grand jury of Cross County,” is by necessary implication a statement that it is in the circuit court of that county. If the name of the court is, either in express words, or by necessary implication, specified, either in the caption or in the body of the indictment, we think it is sufficient to comply with the requirements of the statute.
The attack on the validity of the indictment is not well founded.
We are also of the opinion that the evidence' is legally sufficient to sustain the conviction.
One of the witnesses testified that the agent, who was a merchant and conducted a store a short distance from the depot, did not keep the depot open or attend there for purpose of accommodating shippers and travelers as required by the statute. This witness was contradicted by several others introduced by appellant, but there was enough evidence, we- think, to justify the jury in finding that the terms of the statute had not been complied with.
Judgment affirmed. | [
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Smith, J.,
(after stating the facts). It is insisted upon the part of the State that “It is not necessary to show a criminal intent, since the statute itself defines what shall constitute the crime,” and to support this position, we are cited to the opinion by Chief Justice Cockrill in the case of Beard v. State, 43 Ark. 284, where he said: “The statute (disposing of mortgaged property) upon which the indictment in the case is based, makes it a crime to dispose of personal property under the particular circumstances. When a party voluntarily does the act prohibited, he is charged with the criminal intent of doing it, and no further intent need be shown. ’ ’ Seelig v. State, 43 Ark. 96; U. S. v. Ulrici, 3 Dillon, 532; Com. v. Nash, 7 Met. (Mass.), 472.
There was a strong dissenting opinion in that case by Justice Eakin, in which he contended that a conviction could be had only where the proof showed the sale was made with the intent to deprive the mortgagee of his debt. But the opinion in that case was based upon section 1693 of Mansfield’s Digest, which has since been amended by the act of March 7, 1893, which is carried into Kirby’s Digest as section 2011; and this section now expressly requires that the proof show that the sale, barter, exchange, removal or disposal of the property be made with the intent to defeat the holder of the lien in the collection of the debt secured thereby. Moreover, defendant was entitled to have the issue of his authority to sell the cotton submitted to the jury: If Jackson gave the defendant permission to sell the load of cotton in question, then such permission and the sale thereunder extinguished the mortgage lien thereon. Jackson could not waive his lien, and afterwards attempted to assert it in a criminal prosecution, because the disposition had not been made of the proceeds of the sale of the mortgaged cotton which should have been made. This prosecution and conviction was for disposing of mortgaged property and there was no mortgage lien after a sale had been made with the mortgagee’s assent.
The judgment in this case is therefore reversed and the cause remanded. | [
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Smith, J.
The appellee began this action in the Pike County Circuit Court, alleging substantially the following facts as constituting his cause of action. That the defendant is a railroad corporation, organized under the laws of this State, owning and operating a line of railroad from Ashdown in Little River County to Murfreesboro in Pike County in said State and is a common carrier of freight and passengers for hire. That on the 5th day of December, 1911, plaintiff took passage on a mixed train from Murfreesboro to Ashdown, after having procured his necessary transportation; that he took his seat in the regular passenger coach, and when the said train reached Nashville, a station on said line, and while the same was standing on the main line, near the depot, and while the plaintiff was seated in said coach, the engine and cars were detached from the caboose and passenger coach, and with two or three heavy loaded cars were violently, wrongfully, negligently, and with unnecessary force backed against said caboose, attached to said coach, whereby appellee was thrown forward against the seat immediately in front of him, and was permanently and seriously injured; that the said injury was caused by the straining and wrenching of the muscles of the neck, back and lungs, and the pleural cavity, the exact nature of all said injuries, he is not able to state.
That by virtue of the said injuries, he was confined to his bed for ten days and detained from his place of business for twenty days and has suffered and will continue to suffer great mental and bodily anguish; and that he will continue to lose much time by reason of the said injuries so negligently inflicted upon him by said defendant. That said injuries were permanent; and that appellee had been damaged thereby in the sum of three thousand dollars.
The appellant, in its answer, denied that the plaintiff procured the necessary transportation and became a passenger; and denied that cars were negligently and with unnecessary force backed against the caboose, attached to the coach in which appellee was a passenger; and denied that he was injured permanently or otherwise. It further denied that he had been confined to his bed or detained from his business, or that he hai suffered or would continue to suffer any pain and anguish on account of his alleged injuries. Denied that his injuries were permanent; or that he had been damaged in the sum of three thousand dollars, or any other sum.
Defendant further alleged that if appellee had received any injuries upon any of its trains that he was not a passenger at the time of his injuries, but was using a gratuitous pass, which he had voluntarily accepted and signed with the following limitations and conditions endorsed thereon: “By its acceptance and use any and all claims on this company, whether due to negligence of its agents or otherwise for injury to the person or loss of, or damage to, the property of the holder are waived and released. The holder further agrees not to use this pass in violation of any State or Federal law, and agrees to furnish proper identification whensoever requested. I accept the above conditions, and signed by appellee.” And that by acceptance of the said gratuitous pass, appellee agreed to, and did release, appellant from any and all injuries to his person. That plaintiff’s own negligence caused or contributed to his injuries if he received any; and that defendant is not liable for any alleged injuries claimed by the plaintiff, for the reason that he was at the time, and still is, suffering from tuberculosis, and should not have attempted to ride on a mixed train; and that he contributed to his own injuries in so doing.
The cause was tried before a jury and a verdict returned in favor of the plaintiff for the sum of five hundred dollars, and this appeal is prosecuted from the judgment pronounced thereon.
The evidence on the part of the appellee tended to show that he h.ad taken passage on the local freight train at Murfreesboro for Ashdown; that the conductor looked at his pass, took its number and handed it back to him; and that the injuries occurred in front of the depot at Nashville. That the train stopped at Nashville to do some switching, but appellee remained sitting in his seat in the smoking compartment of the passenger coach; and that he had his feet resting- on the seat in front of him, two seats being thrown together. The engine and all of the cars except the passenger coach and caboose were detached and taken up the road to do some switching. The caboose was immediately in front of the passenger coach, and the passenger coach was on the rear of the train. A Mr. Parks was sitting on the seat with appellee and the first they knew of any trouble was when they heard a yell and simultaneously felt the impact of the cars which had struck the caboose. Three cars which had been detached from the engine had been kicked down the track on the caboose and coach, which were standing still, striking the caboose and coach with a very great force. The appellee and Mr. Parks, who testified for him, stated that in all their travels, which were extensive— and that they had ridden much on mixed freight trains— that they had never known a car to strike another with such force. There appears to have been no real question about the force and violence of the impact, the more serious question being, whether or not appellant was guilty of any negligence in allowing it to occur.
The hrakeman and conductor in charge of the switching, undertook to explain the violence of the impact and to show that they were guilty of no negligence in permitting it to occur. The hrakeman testified that when the cars got within about two car-lengths of the coach and caboose, he attempted to slow them up so they would not make the connection very hard and make only the usual coupling; and that when he undertook to set the brakes, he found that they would not operate. That he used all of his strength and energy to stop the cars with the brakes, but that while he checked them some, he could not do so sufficiently. His explanation being as follows:
Q. Now, then, state to the jury what you found?
A. Well, the brake-staff that runs up and down the end of the car where the brakes attach to where it works, the carrying iron at the bottom, and this carrying iron sets at a certain distance from this brake right down at the bottom of this brake-staff, and in winding this chain around there it might only wind right on top of itself right around, and in winding up taking up the slack the second time there was a link caught against the carrying iron, the piece that held the lower end of the brake-staff in passing there was a link caught there between there and the carrying iron that wouldn’t let it pass through. If the link had been up flat-ways it would have gone through. If the chain had been over flat-ways it wouldn’t pass through.
The conductor discovered that something was wrong with the approaching cars when they were about sixty feet from him, and he ran and climbed the ladder up the side of one of the cars, and just as he reached the brake, the collision took place before he could set the brake. The brakeman testified that he had had fourteen years’ experience in railroading, and during all that time he had known similar trouble with the brakes to occur only twice, and he further testified that when the cars were kicked loose from the engine, he tried the brakes to see if it would work; that this was done at a distance of about 190 feet from the caboose; and that he partially applied the brake and slowed the cars down to some extent, and when he saw the brake would work, he released it, expecting to apply it again when it became necessary to do so. This- is the explanation which appellant says is sufficient to excuse it from any charge of* negligence. But, however that may be, its truth was a question of fact for the jury, and we can not say that the brakeman’s statement is so reasonable, plausible and undisputed that it was arbitrary on the part of the jury to disregard it. St. Louis, I. M. & S. Ry. Co. v. Humbert, 101 Ark. 536; St. Louis, I. M. & S. Ry. Co. v. Landers, 67 Ark. 514. If the brake was in fact in working order when it was first tried by the brakeman, no explanation is shown of its being out of fix when he undertook to set it and stop the cars a few seconds afterward; moreover, the brakeman should certainly have known as soon as the conductor did, that the brake was not working, and no good reason is shown why he did not run to one of the other brakes and have checked the cars. In view of the fact that the conductor ran sixty feet and caught the car and climbed up the ladder, and had reached the brake at the time of the impact, it was, at least, a question of fact as to whether the brakeman might not have averted this collision by applying one of the other brakes, and should have done so. Moreover, both the brakeman and the conductor admit that it is very much safer to do this switching with the cars attached to the engine and except to save a little time, there was no reason why the engine should not have backed these three cars and attached them to the caboose. The jury was properly instructed as to the duty of the carrier in operating its train, and as to the degree of care which it owed passengers riding upon mixed trains, and we think the evidence above stated was legally sufficient to support the finding that appellant’s servants were negligent in making the switch.
The serious question in the case is whether or not appellant’s negligence was the proximate cause of the appellee’s suffering and illness. In the fall of 1910, appellee had been suffering with tuberculosis, and in December of that year made a trip to Arizona, where he remained for three and a half months, and prior to going to Arizona, had taken treatment at the State sanatorium for that disease. He testified that he had regained his lost weight during his absence, and was about restored to health at the time of his return from Arizona, in the latter part of April, 1911. After appellee’s injury, Doctor Alford, who attended him, and who visited him first on December 7, found appellee sitting before the fire and suffering intensely in the muscles of the neck, back of the neck and shoulder, but did not remember exactly how long he suffered; that he continued to visit appellee for about a week, but thinks he treated him for two or three weeks, and that appellee suffered more or less as long as he visited him, and that his treatment was for muscular rheumatism. The record contains an interesting discussion of the pathology of tuberculosis by the physicians, who testified in the case. The theory upon which appellee tried this case was that the tubercular trouble with which he had been suffering had been arrested; that he was not suffering with the trouble at the time of the injury; that by reason of having received this injury his physical condition became worse, his system run down and necessarily his resistance became less thereby, allowing the tubercular germs, which had been arrested, to be released and begin anew their work of ravage, and the expert testimony in the record tended to sustain this theory, and to show that a man may have tuberculosis, and the disease may become arrested; that anything which tends to decrease his vitality would tend to release the tubercular germs which were dormant; and that the attack of muscular rheumatism brought on by his jar would likely never have occurred but for this collision, for his system might, and probably would, have overcome the conditions existing. Doctor Alford, the attending physician, testified as follows:
Q. In other words, what effect does the decrease in vitality have upon a dormant tubercular germ? What tendency does it have?
A. It just simply lessens nature’s protective forces and gives the germ less resisting power to act.
Q. You mean gives the body less resisting power to act?
A. Yes, and gives the germ, of course, more power to act by reason of the lower vitality of the person or the patient.
Q. In other words, then, Doctor, as I understand you, the more the vitality is lowered in a man the more the tendency is to release dormant tubercular germs ?
A. Yes, sir.
Q. Now, to receive a very severe jolt or jerk or. blow upon some point of the body and thereafter rheumatism develops, what, in your opinion, would be the cause of the development of that attack of rheumatism?
A. Well, a jolt or strain might aggravate the condition and bring about the attack.
Q. Then in the absence of any other cause, you would state the jolt or jar probably caused the attack to come on?
A. Not in the absence of other cause. I could not say it was caused wholly or entirely from the jolt or wrench, but I would say the condition was there and was so aggravated by this jolt or jar that the attack developed when it might not have developed, had he, at that time, not got that jar.
Following this injury, appellee lost somewhat in weight, which he had not since regained, although most of the weight he had lost after his return from Arizona was lost before his injury. Under these facts, we can not say there was no question for a jury as to appellee’s suffering and condition having been proximately caused by tbe injury received while a passenger on appellant’s train, and if this was true, the damages recovered are not excessive.
Appellant asked a number of instructions, most of which were refused, but it appears that instructions numbered 14 and 15, which it asked were given and not set out in its brief. Under these circumstances, in accordance with a number of decisions of this court, we will not inquire as to the correctness of any of its requested instructions which were refused. Shorter University v. Franklin, 75 Ark. 571; Files v. Tebbs, 101 Ark. 207.
No serious objection is made to any of the instructions given at the request of the appellee and which announced the general principles of the law controlling here, except the instruction on the measure of damages, the objection to which was that it submitted to the jury the. question of permanent injury and future suffering. We think the evidence warranted the submission of these questions to the jury, but as we have said, the amount recovered indicates that nothing was allowed on that account, and their submission was not prejudicial under the facts of this casé, because the pain and suffering shown to have been endured would warrant the recovery which was had. St. Louis, I. M. & S. Ry. Co. v. Hutchinson, 101 Ark. 434; Mo. & N. A. Rd. Co. v. Daniels, 98 Ark. 363.
The remaining question relates to the use of a pass by appellee at the time of his injury. That a carrier can not defeat a recovery of damages by a passenger by showing the use of a pass at the time of injury, even though the acceptance of the pass was shown to be upon the condition that all claims for damages are waived, has been settled by this court in its decision in the case of St. Louis, I. M. & S. Ry. Co. v. Pitcock, 82 Ark. 441.
The judgment of the court' below is affirmed. | [
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Smith, J.
The appellant, Dave Wells, was indicted by the grand jury of Drew County for the crime of assault with intent to kill, alleged to have been committed “in and upon one Dallas Calhoun,” and upon his trial for that offense, he was convicted of a simple assault, and fined the sum of $50. The appeal questions the sufficiency of the evidence to sustain that verdict. The assault was alleged to have been committed with a knife, and the appellant insists that the proof upon the part of the State shows that he was never at any time nearer than from seven to ten feet of the said Calhoun, and that he did not therefore have the present ability to inflict an injury with the knife.
Section 1583, of Kirby’s Digest, defines an assault as follows: “An assault is an unlawful attempt coupled with present ability to commit a violent injury on the person of another. ” It is settled that both the intention and the ability to commit a battery are necessary to constitute an assault. Pratt v. State, 49 Ark. 179; Jones v. State, 89 Ark. 213. An assault is defined in volume 3, 'section 59, of Greenleaf on Evidence, as follows: “An assault is defined by the writers on criminal law to be an intentional attempt by force to do an injury to the person of another. This allegation, therefore, is proved bv evidence of striking at another with or without a weapon, and whether the aim be missed or not; or of drawing a sword upon him; or of throwing any missile at him; or presenting a gun or pistol at him; the person assaulted being within probable reach of the weapon or missile. So, if one rush upon another, or pursues him with the intent to strike, and in a threatening attitude, but is stopped immediately before he was within, reach of the person aimed at, it is an assault.”
In Bishop’s New Criminal Law, volume 2, section 23, it is said: “An assault is any unlawful physical force, partly or fully, put in motion, creating ,a reasonable appearance of immediate physical injury to a human being, as raising a cane to strike at him, pointing in a threatening manner a loaded gun at him, and the like.” And, dealing with the same subject, he further says: “Words may explain and give character to acts and so combine with them as to make that an assault which, without them, would not have been such. For example * * * the brandishing or pointing of a weapon, when accompanied by threats, may constitute an assault under the circumstances wherein without them it would not. ’ ’
The language of the section of the statute quoted is plain, and its purpose is apparent. It does not contemplate that any act of violence shall have been actually inflicted, but only that it shall have been attempted under such circumstances as made the infliction of the injury a reasonable probability. In the case of Keefe v. State, 19 Ark. 190, a conviction was had for an assault, but it was urged that the verdict was contrary to the law and the evidence, because there was no actual attempt to shoot the person alleged to have been assaulted, although the defendant drew a pistol and cocked it, and pointed it toward the breast of the person alleged to have been assaulted, with the remark, “If you do not pay me my money, I will have your life.” Chief Justice English discussed the purpose of the law, and quoted the following language from the case of State v. Morgan, 3 Iredell Law 186: “Whenever the act is done in part execution of a purpose of violence, whether that purpose be absolute or provisional makes no difference as respects the question whether the act be an assault. In both cases, the assailant equally violates the public peace. In both he breaks down the barrier which the law has erected for the security of the citizen. In the former, he sets up none in its place. In the latter, he substitutes for it the protection of his grace and favor.”
Applying these principles to the facts of this case, we have no difficulty in reaching the conclusion that the evidence sustains the verdict. The prosecuting witness testified that he had been sent by his employer to make a settlement of some accounts with the appellant, and that he went to his house for that purpose. They had some discussion in regard to this settlement, when Calhoun said to appellant, “Mr. Wilson said that if you do not come clean, he will prosecute you for selling or killing some cattle.” Appellant became very angry and cursed Calhoun for some time, when Calhoun said he would hear no more of it, and that appellant must “cut it out.” Whereupon, appellaht ran his hand into his pocket and drew out his knife and remarked that he was going to cut Calhoun’s throat. Calhoun began to hack away, and hacked for ten or fifteen feet, during which time appellant was advancing upon him with a drawn knife, which the witness said appeared to him to he a big dirk. Calhoun called to a Mr. McEllee, who was standing near, and said: “Mr. McEllee, vron’t you come here; that negro will kill me.’’ But McEllee said: “I can’t do nothing for you.” Whereupon, Calhoun hacked around behind a team that was standing near and ran to a house a quarter of a mile away, and left his own horse and buggy at appellant’s house, where it remained until appellant left for Pine Bluff. Appellant did not attempt to follow Calhoun as he ran away. But it was not necessary that he do so to constitute the offense of a simple assault. The law on that subject is designed to preserve the peace, and to prevent acts of violence, and the putting in fear of violence. Calhoun obeyed the law by retreating to a place of safety, hut appellant has no right to say that Calhoun should have done so, and because he did do so, it was not possible for appellant tó cut him. Had Calhoun been armed, he might not have retreated and a homicide might have been committed; and had he not retreated, violence would have been done, had appellant executed his threats. Appellant will not he permitted to say that Calhoun’s observance of the law made it impossible for him to break it: This law should be suffi cient to protect one from the humiliation of being compelled to retreat, but, if not, then it punishes that person who forces another to do so, to prevent the infliction of a bodily injury.
Incidentally, it may be said the settlement was not made. The judgment is affirmed. | [
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Hart, J.
(after stating the facts). In their brief counsel say that this appeal is prosecuted solely upon the theory that the court erred in admitting evidence to the effect that Cleveland told Bass when he purchased the land that he could not move on it and have any benefit from it until the lease had expired, and that Bass agreed to this. The deed in question contained a general covenant of warranty and the lease in question was a breach of that covenant. Crawford v. McDonald, 84 Ark. 415.
In the case of Barnett v. Hughey, 54 Ark. 195, in discussing the measure of damages in an action for breach of the covenant of warranty, the court said:
“In such actions, parol evidence is admissible, on the part of the plaintiff, to show that the actual consideration was greater than that expressed in the deed, for the purpose of increasing the damages, and, on the part of the defendant, to show that'it was less, for the purpose of diminishing them; but not for the purpose of defeating the deed or a recovery on the covenants.” Citing authorities.
Again, in the case of Davis v. Jernigan, 71 Ark. 494, the court said that “in actions for breach of covenants in the deed it is admissible, on the part of the plaintiff, to show that the actual consideration was greater than that expressed in the deed, for the purpose of increasing the damages, and on the part of the defendant to show that it was less, for the purpose of diminishing them; but not for the purpose of defeating the deed or a recovery on the. covenants. Citing authorities.
In the case of J. H. Magill Lumber Co. v. Lane-White Lumber Co., 90 Ark. 426, the court held:
“Though the recitals in a bill of sale can not be contradicted by parol evidence for the purpose of defeating such instrument, it is competent to prove by such evidence that the consideration has not been paid as recited, or to establish the fact that other considerations not recited in the deed were agreed to be paid, when such proof does not contradict the terms of the writing.”
The vendor told the vendee that there was an unexpired lease on the land, and that there was no rent to be paid on it, and the vendee agreed to it. This fact then became a part of the consideration in fixing - the price for which the land was tq be sold.
Therefore, it will be seen that the testimony objected to was admissible on the question of the reduction of damages, and the court did not err in admitting it. Neither did the court err in refusing to give instruction numbered one, asked by the plaintiff, which is as follows:
“You are instructed to find for the plaintiff and against Cleveland for the amount of three years rent on the land in controversy, together with interest thereon at 6 per cent from the time rent is ordinarily due to this date. ’ ’
It is true that “where the incumbrance is an unexpired term or lease, the general rule, at least in the absence of any special circumstance, is that the measure of damages will be the fair rental value of the land to the expiration of the term. The underlying principle is that the damages should be estimated according to the real injury arising from the existence of the incumbrance, which, in the case supposed, is presumably and ordinarily the value of the use of the premises for the time during which the vendee has been deprived of such use.” Fritz v. Pusey (Minn.), 18 N. W. 94; Rawle on Covenants for Title (5 éd.), sec. 191. See also case note 35, L. R. A. (N. S.), 799.
The vice of the instruction, however, is that it ignored the testimony of the defendant on the reduction of damages. Starnes had agreed to clear and put in cultivation as much of the land as he desired, and in consideration therefor was to have the land to the end of his term free from rent. Cleveland, testified that he told Bass of the outstanding lease and that he could not have any benefit from the land until the expiration of the lease and Bass agreed to this. This evidence, as we have already seen, was competent to reduce the damages. It tended to show that the incumbrance had inflicted no actual injury upon the plaintiff and he was therefore, under the defendant’s evidence, only entitled to nominal damages. The rule is that nominal damages only are to be recovered for a merely technical breach of covenant against incumbrances. Rawle on Covenants for Title, (5 ed.), sec. 188. See also Chase v. Barnes, (Kan.), 107 Pac. 769.
No objections have been urged by counsel in their brief to the instructions given by the court, and under our rules of practice any objections to them will be deemed to have been waived. Counsel in their brief specifically base their right to a reversal of the judgment upon the grounds which we have discussed.
Where a plaintiff is entitled to nominal damages only, the judgment will he reversed hut the cause will not be remanded. In such cases judgment will be entered here for nominal damages and the costs. Dilley v. Thomas, 106 Ark. 274.
It follows that the judgment will be reversed and judgment will be entered here for the plaintiff for nominal damages and the cost of the appeal. | [
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Wood, J.,
(after stating the facts). 1. The prevailing rule is that “Neither the assignee nor the creditors whom he represents are purchasers for a valuable consideration, Avithout notice, as against prior equitable liens. There must be some consideration passing at the time of the assignment, some new responsibility incurred, or some rights given up, to invest an assignee Avith this character.” Burrill on Assignments, page 482 (6 ed.).
The appellees contend that the case at bar is taken out of the operation of this rule, because the purported assignment here was made under an agreement with the creditors, that in consideration of the receipt of their pro rata parts of the proceeds of the sale of the land they would execute a release in full to E. M. Ross and the Southern Pole & Piling Company. But there was no new consideration passing at the time of the assignment. No new liability or responsibility, on the faith of the alleged assignment, was incurred by the creditors. It was not shown that the creditors would have refused to accept the assignment if they had known of the mortgage.
The rule of innocent purchasers for value does not apply where property is assigned simply in payment of pre-existing debts, for in such case it can not be said that tbe creditors gave any new or additional consideration therefor.
In Clark v. Flint, 22 Pick. 231 (Mass.), it is held: “That assignees in trust for creditors, are not bona fide purchasers for value, who will be protected against an equity of which they had no notice, though the assignment contains a release of claims of creditors, where the assignees have incurred no new liability on the credit of the property.” Clark v. Flint, 33 Am. Dec. 733, note. Such is the case here, conceding that this was an executed assignment. J3ut the contract under which the purported deed of assignment was made shows that there was, in fact, no completed assignment for the benefit of the creditors of the Southern Pole & Piling Company. It is clear from the provisions of this contract that the deed was not to take effect as an assignment until the assignee had procured from “each and every creditor” an agreement to accept said lands in full and complete settlement of all sums due to said creditors. The uncontroverted evidence shows that there were three of the creditors, with claims amounting in the aggregate to $294.81, who had not signed the release of their claims. Furthermore, there was a provision in the contract to the effect “that all lawsuits now pending in the court of B. C. Hays, justice of the peace for Lake Township, in favor of the creditors for said Southern Pole & Piling Company and E. M. Boss, should be continued from time to time, until it can be ascertained whether the said settlement can be perfected, and all further proceedings held in abeyance until said time.” These provisions of the contract, in pursuance of which the deed was executed, show that there was to be no completed assignment of the property until all the creditors had released their claims in full, and the assignee, in endeavoring to have this done, was representing primarily the debtor instead of the creditors. It was in evidence that Boss had four hundred (400) acres of land in Missouri. Yet the alleged assignment was to effect a complete settlement, if possible, out of the proceeds of tbe sale of tlie land in controversy before the deed of assignment could take effect. We are of the opinion that the evidence shows that there was no assignment, such as to entitle the creditors of the Southern Pole & Piling Company to claim as innocent purchasers. They had not, in fact, acquired any rights under the purported deed, as against one holding prior equity in the land in, controversy.
2. The contention of the appellants that the claim of appellees should be reduced by $272.50, the amount of the mortgage held by E. H. Grady, one of the appellees, against Boss, can not be sustained, for the reason that this alleged agreement between Boss and Grady was a transaction concerning the mortgage of real estate and was void, because it was not in writing. When the debt of Boss to Grady was paid, the mortgage had performed its function and could not thereafter be held as security for another debt. Any promise upon the part of Boss to this effect was wholly without consideration and performance of which could not be demanded by Grady. A contract of this kind to be binding would have to be in writing and based upon consideration. There was no element of estoppel in the transaction.
It follows that the decree of the court was correct, and the same is in all things affirmed. | [
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Hart, J.,
(after stating tbe facts). Counsel for the defendant first insist that what is a reasonable time for the transportation of baggage, is always a question for the jury, and that the court erred in telling the jury, as a matter of law, that the delay in the transportation of-the baggage was caused by the negligence of the defendant., We do not agree with them in thi,s contention. The undisputed evidence shows that the plaintiff told the agent, when he checked the baggage, that he was going to Hope to get married, and would need the trunk as soon as he got there. He checked the trunk in ample time for the agent to have placed it on the train on which plaintiff embarked. The plaintiff arrived at Hope at about 11:30 o ’clock on the- morning of the 10th, and his trunk arrived there at 7:00 o ’clock on the evening of the 11th. During this time, four regular passenger trains had passed between the two places, and the baggage could have been transported on either of these trains. But one reasonable inference can be drawn from these facts, and that is, that the defendant was negligent in the transportation of the plaintiff’s baggage.
Under the instructions of the court, the plaintiff was allowed to recover for the inconvenience, hardship and mortification suffered by him on account of the delay in the transportation of his baggage. This was to allow him to recover for mental anguish unaccompanied by physical injury. In the case of the Chicago, Rock Island & Pacific Ry. Co. v. Whitten, 90 Ark. 462, the court held that in an action to recover damages for injury to baggage, the plaintiff could not recover any damages for alleged men-' tal suffering, because he had not suffered any physical injury. The holding of the court in that case is conclusive here, and the plaintiff was not entitled to recover damages, because of the inconvenience and mortification he -suffered on account of the delay in receiving his baggage. Neither was he entitled to recover the value of the articles of clothing purchased by him. They were articles that could be worn on other occasions by a person of his station in life, and, in the absence of testimony to the contrary, it must be presumed that he received value for the money he paid out for this purpose. The measure of.a passenger’s damage for a carrier’s delay in forwarding Ms trunk is the value of the use of the property during the time of the delay. Elliott on Railroads (2 ed.), vol. 4, sec. 1662-a; Hutchinson on Carriers (3 ed.), vol. 3, § 1366; 6 Cyc., page 676; Texas & N. O. R. Co. v. Russell (Tex. Civ. App.), 97 S. W. 1090; Mexico Central Ry. Co. v. DeRosear (Tex. Civ. App.), 109 S. W. 949.
Plaintiff was entitled to recover the expenses he was put to in undertaking to locate his trunk. See authorities supra. He was also entitled to recover the penalty. See General Acts of 1911, page 249.
■ It follows that for the errors indicated, the judgment must he reversed, and, inasmuch as under the undisputed evidence plaintiff was entitled to recover the. sum of five dollars for reasonable expenses in undertaking to locate his baggage, judgment will he entered here for that amount and for the $100 penalty assessed against the defendant by the jury. | [
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Kirby, J.,
(after stating the facts). The testimony is undisputed that the appellee company had been furnishing gas to appellants at 25 cents per thousand cubic feet and had the right to change the price thereof upon notice to its customers and that the notice of the change in price to take place on April 1 had been duly given to appellants; that appellants were upon a slot meter which measured 1,000 feet of gas for consumption upon dropping a quarter into it; that John Carson’s wife, upon the day the meter was changed, put a quarter into it about noon; and at 3:30 appellee’s agent “robbed the meter;” that is, collected the money therefrom — $3.45; changed the meter to register according to the new price fixed for gas and turned it back to zero, turning out all the gas therein. The company’s agent, at the time the appellant complained of his action in shutting off the gas, said his instructions were to do so and that it was because they had been burning gas from the first to the nineteenth of the month at the old rate of 25 cents' and owed the difference, and that the gas would continue to be furnished at the new rate upon dropping the quarter in the meter as usual.
Appellants had not been notified that they were behind with the payment of their gas bills nor that the gas would be shut off on that account, and it was the custom of the company and the terms of the contract required that the bills should be paid monthly, nothing being said in it about the slot meter. In any event, it can not be questioned that appellants had the right upon putting the quarter into the meter to consume the amount of gas for which it paid and when it was so deposited and the gas turned into the meter, it was delivered to them and became their property with the right to consume it at their convenience, so long as the terms of the contract.were not violated in so doing. Chouteau v. St. L. Gas Light Co., 47 Mo. Appeals, 326; Schmeer v. Gas Light Co., 147 N. Y. 529; 42 N. E. 202; 30 L. R. A. 653; Blondell v. Gas Co., 89 Md. 732; 43 Atl. 817; 46 L. R. A. 187.
It may be true that the gas company had the right under its contract to shut off the supply of gas to appellants to compel the payment of amounts already due for gas consumed, or furnished, but it could not do so until after giving notice in accordance with the terms of the contract, and certainly with the slot meter in use and the money deposited therein for the payment of 1,000 cubic feet of gas according to the old price, and of that much upon the price of a thousand feet according to the last rate fixed, it had no right to turn the gas already delivered to appellants out of the meter. If according to the usage they were entitled to continue to consume one thousand feet of gas for each quarter deposited in the meter until the meter could be changed to register in accordance with the advanced price, which we do not decide, the gas in the meter was already paid for, and if it can be said they should be held to the payment of the advance price for all the gas consumed since they were notified it should go into effect, then they would only have owed for the difference in the price, which would have been collected on the first of the succeeding month and could not have warranted their agent in turning the gas already delivered in the meter out. It was as much a wrongful act as if he had taken or destroyed any other of the personal property or effects of these appellants in their home.
It was a tort, pure and simple, committed without justification or excuse, and for which the gas company should be held answerable for all damages directly traceable to the wrong done and arising without an intervening agency and from no fault of the persons injured. Coy v. Indianapolis Gas Co., 146 Ind. 665; 46 N. E. 17; 36 L. R. A. 535; Indiana Gas Co. v. Anthony, 26 Ind. App. 307; 58 N. E. 868; Thornton, Oil & Gas, § 534.
The question of damages is not affected by reason of the fact that it can be said that such a condition as resulted from the turning off of the gas could not have been within the contemplation of the parties under the contract and duty of the company to supply it, since the action arises out of its wrongful conduct in turning out the gas already delivered which may also have constituted a breach of the contract to furnish;
■ The evidence is conflicting as to the amount of gas already measured by the meter that was turned out, appellee claiming that only 10 cents worth remained unconsumed while appellants claim that the gas paid for should have lasted twenty-four hours- and had only been burning three.
It is true it is undisputed that the gas was not disconnected from the premises and that it would have continued to be supplied' upon the dropping of another quarter into the meter, and also that appellant’s husband had another quarter and was notified of the condition immediately after the gas was turned out but did not regard it of sufficient moment to come and bring or send the money with which to purchase more gas to comfortably heat the dwelling, and that her efforts to procure it in the neighborhood were fruitless.
These views, which are concurred in by the majority of'the judges, Mr. Justice Smith dissenting, settle the law' of the case and call for reversal of the judgment. An agreement can not, however,, be reached by the majority in the application of the law to the facts of the case. The writer and Mr. Justice "Wood are of the opinion that under the law stated above the proof is sufficient to show substantial injury to appellant as the proximate result from appellee’s wrongful act and that the cause should be remanded for a new trial.
The conclusion of the Chief Justice and Mr. Justice Hart is that the alleged wrongful act was not the proximate cause of the injury, which they think resulted from appellant’s own failure to minimize the damages by procuring from her husband, or some one else, the trifling sum necessary to pay for more gas, and that she should only be allowed to recover nominal damages, for recovery of which, causes are not remanded.
Mr. Justice Smith is of the opinion that the judgment Should he affirmed.
Thus it will be seen that four of the judges agree to the reversal of the judgment, but only two of them favor remanding the cause for a new trial.
From an adjustment of the views of all the judges the only net result that can be extracted is that the judgment must be reversed, but the cause will not be remanded for a new trial. • Appellant is, therefore, entitled to a judgment for nominal damages. So it is ordered that the judgment be reversed, and that-judgment be entered here in favor of appellant for nominal damages, which carries judgment for costs in both courts. | [
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Kirby, J.
The appellant was indicted for the crime of rape, and from the judgment of conviction of an assault with intent to rape, brings this appeal.
He admitted having sexual intercourse with the prosecuting witness at the time and place she claimed to have been raped, and testified that it was with her consent and co-operation. It is conceded, however, that the testimony is amply sufficient to sustain a conviction of rape, if believed.
It is contended for reversal that the court erred in giving certain instructions, in the admission of incompetent testimony, and that the verdict of the jury is contrary to the law and the evidence, counsel for appellant saying:
“Without going into a detailed discussion of the evidence, it is submitted that there is no possible view of the evidence which will support a finding that appellant was guilty of an assault with intent to rape. * * * The crime was made out rape, or it was nothing. ’ ’
An assault with intent to rape is included in the charge of rape, and a conviction may be had of the former offense under an indictment for the latter, and the appellant will not be heard to complain that because he was not convicted of the offense of rape, that he could not be .guilty of an assault to commit the offense, which the testimony was amply sufficient to show he did commit. Pratt v. State, 51 Ark. 167; Kirby’s Dig., § 2413; Skaggs v. State, 88 Ark. 72; Green v. State, 91 Ark. 563; Sexton v. State, 91 Ark. 589; Hamer v. State, 150 S. W. (Ark.) 142.
He also contends that, having admitted carnal knowledge of the woman, that the court erred in charging the jury relative to an assault with intent to commit rape. A man can be guilty of an assault with intent to rape, if he assaults a woman with the intention of having carnal knowledge of her, forcibly and against her will, even though after the assault is made she finally yields to his embraces and consents to the intercourse. Such subsequent yielding and consent does not mitigate nor justify the assault with the intent to commit the crime. State v. Cross, 12 Iowa 66; State v. Atherton, 32 Am. Rep. 134; State v. Shepherd, 7 Conn. 54; State v. Bagan, 41 Minn. 285; 1 Bisliop Crim. Law, § § 733-736; State v. Hardigan, 78 Am. Dec. 609.
If the court was not required to submit to the jury the question of an assault with intent to rape in this case, the defendant can not complain of its action in doing so, since, otherwise, it was an instruction more favorable to him than he was entitled to have given.
Neither is the instruction open to the objection that it was incorrect, not specifying that the attempt to have carnal knowledge of the woman must have been forcibly and against her will, since an assault with intent to rape was correctly defined immediately above the expression used which followed the sentence: “If he had carnal knowledge of the woman, as charged in the indictment, forcibly and against her will, he is guilty of rape; if he did not consummate that crime, but attempted to do it, he is guilty of assault with intent to rape. ’ ’ The instructions were given as one, and the jury could not but have understood that before he could be found guilty of an assault with intent to rape, they must find that he attempted to have carnal knowledge of the woman forcibly and against her will. And, besides, if the instruction was erroneous, it was such an error as called for a specific objection, which was not made.
No error was committed in the court’s instruction that “the defendant starts out in the trial with the presumption of innocence in his favor, and that presumption follows him throughout the trial, or until the evidence convinces you of his guilt, beyond a reasonable doubt,” which meant no more than that, “the presumption prevails until overcome by evidence convincing the jury, beyond a reasonable doubt, of his guilt,” as said in Ross v. State, 92 Ark. 483.
The next assignment is, that the court erred in permitting the introduction of testimony relating to the general reputaion of the defendant, it being claimed that he had not put his character or reputation in issue. He testified in the case, however, and took the witness stand like any other witness, and his character for veracity could be impeached, though his good character may not have been previously put in issue. McCoy v. State, 46 Ark. 141; Turner v. State, 100 Ark. 199; Skaggs v. State, 88 Ark. 73; Younger v. State, 100 Ark. 321.
Of course, the testimony relating to the bad character or the general reputation of the accused for truth and morality could only be considered as affecting the question of his credibility as a witness, of which the jury was sufficiently advised by the court saying it was competent to prove such reputation, but “it does not necessarily follow from the fact that a witness has been impeached that he should not be believed. It is intended to shed light upon the credibility of the witness.” Appellant asked no instruction upon this point and did not specifically object to the one given.
It is next contended that the court erred in permitting the testimony of Enos Brown, taken before the justice in the examining trial to be read on the trial in the circuit court. It is conceded that appellant was present when said Brown testified in the examining trial and had the right to cross examine him, and it was shown that diligent inquiry had been made as to the whereabouts of this witness, and that he could not be found; the deputy sheriff having the subpoena for service made inquiry from all sources likely to discover information as to his whereabouts and was unable to find him, and other witnesses also testified that he had been gone from his home about a month and that his wife said he was in Mississippi. This was a sufficient foundation for the introduction of the testimony.
‘ ‘ The settled law of this State is that where an adverse witness is dead, beyond the jurisdiction of the court, or, upon diligent inquiry, can not be found, what such witness testified on a former occasion, on the same issues and between the same parties, may be given in evidence, providing the accused was present, having the right to cross examine.” Poe v. State, 95 Ark. 177, and eases cited.
Complaint is made of the introduction of the testi mony of the prosecuting witness, relating to the defendant’s assaulting and heating his wife on the way home upon the night' of the commission of the crime. It is true this statement of hers wa's introduced over the objection of the appellant, but other witnesses testified to the same effect without objection, and he, himself, admitted, upon cross examination, that he had sworn at and struck his wife and that she was either drunk or unable to continue the journey home and was put to bed in the house of a neighbor, some two and a half miles from home, and immediately before the offense was perpetrated just beyond the house where the wife remained.
It may be that this evidence reflected the intention of appellant to get rid of his wife, in order that he might have, the better opportunity to commit the offense, but, in any event, it having been introduced by other witnesses and himself, without objection, if error was committed in its introduction, it can not be held prejudicial.
There are other assignments of error, but we do not regard it necessary to discuss them.
The instructions fairly presented the issues to the jury, which doubtless found appellant guilty of assault with intent to rape, rather than the crime of rape, because of the fact that the prosecuting Avitness was living at the time of the occurrence in adultery Avith another man.
Finding no prejudicial error in the record, the judgment is affirmed. | [
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Hart, J.
Improvement District No. 14 of tbe city of Texarkana, Arkansas, was organized for tbe purpose of grading and paving with creosote blocks or asphalt some fifteen blocks of streets composed for tbe most part of State Line Avenue and Front Street. C. A. Smith and R. H. T. Mann, who are owners of real estate within tbe proposed district, instituted this action in tbe chancery court against tbe members of tbe board of improvement district to enjoin tbe collection of assessments against their lands and to vacate and annul tbe improvement district. Among other grounds, they allege that tbe second petition provided by tbe statute asking that tbe improvement be made was not signed by a majority in value of tbe owners of real property within tbe district. Tbe chancellor found in favor of tbe defendants and tbe complaint was dismissed for want of equity. Tbe plaintiffs have appealed.
Tbe facts are undisputed, and so far as are necessary for a determination of tbe issues involved are as follows: Tbe total assessed valuation of all tbe prop erty in the district for the year 1911, that being the last assessment on file at the time of the organization of said district, was $357,000. Signatures to the petition to property amounting to $205,200, as shown by the county assessment, were obtained. But plaintiffs contend that the signers to some of this property were not the owners within the meaning of the Constitution and that when their names are taken off the petition it will be found that a majority in value of owners of property within the district have not signed the petition. The State National Bank building, a brick and steel structure, is situated on lots 11, 12, 13 and 14. E. W. Frost signed the petition for this property. He was the owner in fee simple of lots 13 and 14 and had a lease on lots 11 and 12 for the period of ninety-nine years, commencing July 1, 1904. By the terms of the lease he was to pay all taxes and assessments against the property and had the right to make any changes or substitution of improvements on it. At the end of the term the real estate together with improvements upon the same were to revert to the owners of the lots. These four lots with the improvements on them were assessed at $80,000 for the year 1911. It was agreed that the assessed valuation of lots 11 and 12 for 1911 was $40,000. It will be noticed that the assessed value of all the property in the district not including lots 11 and 12 is $357,000, and that the assessed valuation of all the property signed for asking that the improvement be made amounts to $205,200. If it should be determined that lots 11 and 12 should be included in fixing the assessed value of all the property in the district and should not be included in the list of property signed for asking that the improvement be made, it is manifest that a majority in value of the owners of real property within the district have not signed the petition asking that the improvement be made and the improvement district, under the former decisions of this court, is void.
It is admitted that lots 11 and 12 are situated within the boundaries of the district. About ten years before the present district-was organized the street in front of these lots was paved with brick and the proof shows that the pavement is now in a good state of preservation. For this reason it is claimed that lots 11 and 12 are not benefited and should not be included in making up the valuation of all the property in the district. In the case of Kraft v. Smothers, 146 S. W. (Ark.), 505, 103 Ark., the court said:
“Our Legislature has prescribed the manner in which improvement districts may be organized; and, pursuant to the power delegated to it, the city council passed the ordinance in question, for the purpose of creating the sewer district. The foundation of the improvement was the petition of the owners of real property situated in the proposed district. Under the statute, the extent and character of the improvements, as expressed in the ordinance, must substantially comply with the terms of the petition-upon which it is based.”
It will be seen our statutes require as a prerequisite to the exercise of authority conferred upon the city council that a petition be first filed designating the boundaries of the district so that it may be easily distinguished. This is for the benefit of the property owners. A property owner might be willing to sign for an improvement district as designated in the first petition and might be unwilling to sign if a part of the property included within the boundaries of the district should be omitted; for this might have the effect of imposing upon the property owners additional and enlarged burdens which they did not contemplate when they signed the petition. A special limited jurisdiction is conferred upon the city council to lay off the district as designated by the property owners in the first petition and the council must conform strictly to the authority conferred upon it. For the same reason the cJiancery court had no power to change or alter the boundaries of the district, and it follows that in making up the valuation of the property of the district all the property situated in the district as it was created must be considered.
It is insisted that the lessees are not owners within the meaning of section 27, article 19, of onr Constitution, and in this respect we think counsel are correct. Section 27, article 19, of the Constitution reads as follows:
“Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in towns and cities under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected; but such assessments shall be ad valorem and uniform.”
In Lenow v. Fones, 48 Ark. 557, it was held that a lease of whatever duration is but a chattel interest and, therefore, upon the death of the lessee’s intestate his widow will take dower in it absolutely as in personal property and not for life as in real estate. In this case the court quoted with approval the following: “No proposition has been better settled from the earliest days of the common law than that a lease of whatever .duration is but a chattel. Hence the lessee could not be an owner of real property within the district in contemplation- of the action of the Constitution above quoted. This holding is in accord with the rule laid down in Ahern v. Board of Improvement District No. 3, Texarkana, 69 Ark. 86, where the court held that a tenant for life is not an owner who may sign a petition for the formation of an improvement district. In the case of Rector v. Board of Improvement, 50 Ark. 116, the court said:
‘ ‘ The statute authorizing administrators to sign for estates can not, so far as the heirs are concerned, give their signatures any efficacy in the face of the Constitution requiring the consent of the owners.”
Counsel for the defendants rely upon the case of Village of St. Bernard v. Kempner, 45 L. R. A. 662, where the Supreme Court of Ohio held that the holder of a ninety-nine-year lease, renewable forever, was the owner of the property within the meaning of an improvement law requiring the signatures of owners. The theory upon which cases like this proceed is that a lease for a long term and renewable forever is a lease in perpetuity and creates in the lessee a qualified base or determinable fee, because it is said they have a possibility of enduring forever. 37 Cyc. 791; Conn. Spiritualist Camp-Meeting Association v. Town of East Lyme (Conn.), 5 Atl. 849. See also 4 Kent Com. (5 ed.), page 9. The lease in the present case was for a term of ninety-nine years merely and does not even come within the rule laid down in those cases. The general rule regarding lands held under a lease for years giving the right to hold the land for usufructory purposes only, is, in the absence of a statute to the contrary, that there is to be but one assessment of the entire estate in the land and that this assessment should include the value of both the estate for years and the land or reversion. 27 A. & E. Enc. of Law, page 678. The owner of the fee may fairly be deemed to be the owner of the whole estate for the purpose of taxation and this, so far as we are advised, has be'en the uniform practice in this State. There is a good reason for the rule. The owner of the land annually receives a sum as rent which he deems the equivalent of the value of the use of the land to him and he, therefore, enjoys the entire beneficial interest in the premises, including the value of the leasehold as well as the fee. Besides, as we have already seen, the trend of our decisions is to hold that the word “owner” as used in the section of the Constitution in regard to local improvement means the absolute owner or the owner of the fee.
It follows that the decree must be reversed and the cause remanded with directions to the chancellor to grant the relief prayed for in plaintiffs’ complaint. | [
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Smith, J.
Appellee was the plaintiff below, and alleged in his complaint that he had been night marshal of the city of Brinkley, and that on the night of June 19, 1912, he was at the depot of the defendant in that city and undertook to arrest two men, who had boarded a freight train of defendant; that in order to make the arrest plaintiff was compelled to go on top of a box car, and that before he could alight from said car the train began to move slowly, and that while undertaking to alight from said car he was run against by a box car on the sidetrack, which had been left in such close proximity to the main track that a person on the side of said train could not pass without being struck, and that plaintiff was knocked off the side of the car, on which he was riding, as it passed the car on the sidetrack.
The complaint further alleged that plaintiff had been instructed by the special agent of the defendant company, a Mr. Clary, to ride said train from the depot to the coal chute, so as to prevent cars from being broken into.
The answer specifically denied all the material allegations of the complaint, and alleged that Clary had no authority to instruct, or permit, plaintiff, or any other person, to ride upon defendant’s freight cars, or any of them, and further alleged that plaintiff’s injuries were the result of his own carelessness and negligence.
To support the allegations of the complaint, the following proof was offered. The plaintiff testified as follows:
“We were instructed by Mr. Clary to ride this train. There had been lots of merchandise cars and passenger ears, but more merchandise cars, that had things of different kinds stolen out of them. Mr. Clary told the chief, Mr. Owens, and myself to keep them out and ride these trains down there, and make a special effort to stop it. I had been doing that, I suppose — well, I made several trips down there before this night. This morning we were speaking about there were, two hoboes in the depot. I went in there and asked them where they were going, and if they had tickets and they said “yes;” said they wouldn’t be in there if they didn’t. I walked on . .out, and it was just about time for 44, going east. That is, the passenger going east. There was a train coming, and I thought that was it, and I was going to see whére •they went. It was a freight train, and I walked out, and one of these men got on the car ahead, and I caught .-a car just as it stopped for the crossing when they got on. There was another one got on lower down. I got on there and arrested one of them, and the other one was .ahead of me. I had this one with me, and he was climbing down on the inside, and I was on the outside. He was on the ladder between the cars. It was dark and I -couldn’t see very far in front. It was about 3 o’clock in the morning. This car was sitting on the sidetrack. 'This car and the train had been striking together, I could hear that, and that called my attention to look around, but I could not see what was making the noise; but when the car got in a few feet of me I saw what it was, but didn’t have time to jump, but I got close as I could to the car, and the one on the sidetrack knocked me off and sprained my ankle. I could not walk, and I thought my leg was broken. There was some more boys .at the depot with me, and I got up the best I could and hopped up there, and they came down and got me to the ■depot and called up the doctor, and he treated me and put splints on my leg and kept them there about two weeks. The first few days it pained me terribly. I had to keep it up high to get any rélief.
“I was working as night marshal of the city of Brinkley, under Mr. Owens. Mr. Clary was special agent of the defendant. He had instructed me to ride the train .and make a special effort to stop thefts. On one occasion there were about sixteen or seventeen hams' taken -out. This was the occasion Mr. Clary made this request ■of me. This car, on the sidetrack, was so close to the -train that a man on the side of the box car on the track that this train was on, could not pass without being struck. The car was bruised up by being struck by this passing train. This was shortly after 3 o’clock in the morning.
“I went there for the purpose of making this arrest, in pursuance of instructions from Mr. Clary.
“I was the regular night marshal. The city of Brinkley pays my salary. I had been acting as deputy marshal for six months. I don’t know how long the train was. I think it was a through freight train. I got on more towards the front than the back. I rode the train something like fifty or seventy-five yards to the first switch beyond the Cotton Belt crossing, I was on the right side, going east. I had the man arrested, and he was coming down the front end on the inside, between the cars, and I was coming down on the outside. I did not have hold of him, but expected to get off with him. I do not know what became of him after I got down. One of the men was two cars ahead. I did not get to him at all. The train was not going very fast at that time. I supposed it would stop at the coal chute. The train had come to a stop, and whistled for the Cotton Belt crossing when I got on. I was down almost to the Brinkley Hotel, and had that much of the length of the train ahead of me. Mr. Clary was not there that night that I know of.”
L. C. Owens testified in substance as follows:
“I am city marshal of Brinkley. I know Mr. Clary. He is special agent of the defendant. When he comes to Brinkley he looks after broken-into box cars, and such things as have been lost on the railroad, and things of that kind.”
Q. I will ask you, Mr. Owens, if you had any conversation with Mr. Clary, prior to this accident, with reference to cars being broken into at Brinkley, and, if so, state to the jury what it was, and if you had any instructions from him.
A. Along some time before that Mr. Clary came over there and said he was having a great deal of trouble about these things, and said he would like for me to give him all the assistance I could in protecting the com pany’s interest about the depot and yards. They had some trouble on the passenger trains, which was supposed to happen at Brinkley, about the coal chute and up at the depot, and asked me to assist him in everything I could, and I did.
Q. State to the jury whether or not he said anything to you and Mr. Allen about riding trains from the depot to the coal chute and back.
A. He asked us to ride them. I don’t know what the numbers are of these trains that go east sometimes in the morning. He wanted us to ride that train up to the coal chute, which is about half a mile, and then there is one that comes west inside of fifteen or twenty minutes, and sometimes we would sit down there until that train came back west; and, if it was late, we would walk back. I did that several times. I and Mr. Clary put in the big part of one night riding from the coal chute to the depot and back. So I told Mr. Allen to keep a close lookout around the depot and yards, as much so as possible, and especially around those passenger trains, and that is about all I know.
Q. You and Mr. Allen rode the trains back and forth between the depot and the coal chute?
A. Mr. Allen worked at night and I worked in the day. He would make his report that he had done so. I wasn’t down there with him. I only rode the passenger trains myself.
Q. Mr. Allen was present when Mr. Clary gave you these instructions?
A. I can’t say positively, but Mr. Clary gave me these instructions — to look after this, and, so far as I could to catch these criminals and hoboes, and I told Mr. Allen to keep a close lookout as far as he could.
Q. You told Mr. Allen that?
A. Yes.
“I rode the trains with Mr. Clary. He and I rode the passenger trains at night. I think it was 44 east, and 43 west, and then I worked two or three nights later. I recognized it was my duty, and the duty of my deputies, to arrest all criminals, whether they were stealing from the railroad or not. It was as much our duty to protect railroad property as the property of anybody else. ’ ’
This was all the testimony, and it is very questionable whether it is sufficient to support the finding that Clary had authority to direct appellee to ride on appellant’s train. But if Clary had authority to give this invitation, still appellee had the right to act only within the scope of the invitation. If the invitation to .look after cars in the yards at the depot, and upon the tracks at the coal chute, included the right to ride from one to the other, and on freight trains as well as on passenger trains, still that invitation would embrace only the right to ride on such trains in the place and manner which it is intended they should be ridden on. Here, it is not contended that any member of the train crew knew of appellee’s presence on the train, and of course nothing could be known of his purpose. Yet at 3 o’clock in the morning, in an unlighted yard, appellee attempted to climb down the side of the car and to alight from the moving train, before it reached the coal chute, where it would stop. Moreover, this train was in motion when appellee climbed upon it and had not reached its stopping point when he attempted to alight from it, and it was under the control of the crew provided for that purpose.
The proof herein set out does not support a finding by the jury that appellee was acting within the scope of his invitation or employment at the time of his injury, and, if he was not, then appellant owed him no duty to exercise care to make the place reasonably safe for appellee to do an act, not within the scope of the invitation or employment.
We are of the opinion that appellant committed no breach of any duty to appellee, and, therefore, it is guilty of no negligence of which he can complain, and the judgment of the court below is, therefore, reversed and the cause remanded for a new trial. | [
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Carleton Harris, Chief Justice.
At the beginning of school in the fall of 1962, fifty students, who had previously attended Howard County Training School District No. 38, a school district located in two counties, and appellee herein, situated at Tollett in Howard County, transferred to Sevier County High School, District No. 1, located at Lockesburg in Sevier County. Hereinafter, at times, these schools will be referred to as Tollett and Lockesburg. Thirty-five of the fifty children live in still another school district, Mineral Springs School District No. 3, likewise a district in two counties, administered in Howard County. All of the fifty children live in Sevier County, and were transferred upon the individual applications of respective parents or patrons with the approval of Sevier County High School District No. 1 and the Sevier County Board of Education. Tollett School, through its Board of Directors, instituted suit against the directors of Lockesburg, appellants herein, alleging, inter alia, that such transfer of students could not be made without the approval of the Howard County Board of Education, and that this board had not given its approval. Appellee alleged that it would suffer irreparable damage in state aid for its school district unless appellants were enjoined from permitting the fifty students, residents of Howard County Training School District No. 38 from attending Sevier County High School District No. 1, and injunctive relief was sought. On trial, the court entered its decree restraining and enjoining appellants from permitting the aforementioned fifty students to attend the Lockesburg School. From such decree, comes this appeal.
The first question in this litigation is whether the fifty students were legally transferred from Tollett to Lockesburg. All facts were stipulated, except that appellants offered some additional evidence by parents of affected students. Part of this evidence was to the effect that the school at Lockesburg was not convenient for the particular students (whose parents testified), and other parents were of the view that their children were better satisfied, and would receive a better education at the Lockesburg School. Portions of the stipulation, which we deem pertinent to a determination of the litigation, not already mentioned in the statement of the case, are as follows:
“On June 1, 1949, the Sevier County Board of Education with the approval of the Howard County Board of Education and with the approval of Howard County Training School District No. 38 authorized and directed the territory that was formerly Paraloma School District No. 54 in Sevier County to become annexed to Howard County Training School District No. 38, and on the same date the Sevier County Board of Education with the approval of the Howard County Board of Education and with the approval of Howard County Training-School No. 38 authorized and directed the annexation of the territory that was formerly Graves Chapel School District No. 60 in Sevier County to Howard County Training School District No. 38. Both of the above mentioned transfers were approved by the State Department of Education. * * *
‘ ‘ Since June 1, 1949, students of what was formerly the Paraloma School District No. 54 and Graves Chapel School District No. 60 have been attending- Howard County Training School District No. 38, however, some patrons expressed the desire to attend Sevier County High School District No. 1 located at Lockesburg, Arkansas, and in connection therewith presented petitions to the Sevier County Board of Education to transfer to the Lockesburg School in the years of 1959, 1960 and 1961. For these years the students were refused permanent enrollment to the Lockesburg School. * * *
“Howard County Training- School No. 38, because of the annexation orders mentioned above, embraces territory in Howard and Sevier County.
“There are a greater number of inhabitants and students residing- in the Howard County portion of Howard County School District No. 38 than in the Sevier County portion of said District, and the Howard County Board of Education administers Howard County School District No. 38. * * #
“Neither the Howard County Training School District No. 38 School Board nor the Howard County Board of Education approved the transfer of said students.
“Mineral Springs School District No. 3 where 35 of the 50 involved students reside is a School District embracing territory in both Howard and Sevier County. There are a larger number of inhabitants and students residing in the Howard County portion of Mineral Springs School District No. 3 than in the Sevier County portion of said District, and said School District is administered by the Howard County Board of Education. ’ ’
Neither the stipulation nor the oral evidence reflects whether the thirty-five pupils in the last named district, Avere ever properly transferred from the Mineral Springs District to Howard County Training School District No. 38.
Our statutes authorize a transfer of children from one school district to another. Section 80-1517, Ark. Stats. (1960 Replacement) provides:
“The county board of education shall have power, upon the petition of any person residing in any particular school district, to transfer the children or wards of such person to a district in the same county, or to a district in an adjoining county for school purposes. * * * J )
Section 80-1518, Ark. Stats. (1960 Replacement) further sets out:
“From and after the passage of this Act no County Board of Education shall make an order transferring-any school child or children from one district to another until and unless consent of the Board of Directors of the district to which such child or children are sought to be transferred has been secured in Avriting, such written consent to be filed in the office of the County Clerk of the county from which such child or children are to be transferred.”
Appellants argue that the paramount authority for any transfer rests Avithin the receiving district, and since the receiving district, in this case, approved the transfer of these children, same is valid. Appellants further rely upon the provisions of Section 80-1527, Ark. Stats. (1960 Replacement), a portion of the “Pupil Assignment Act,” and the apparent purpose of offering the testi mony of various parents was to come within the provisions of that act.
While we concur that a child cannot be transferred to another district without the consent of the Board of Directors of the receiving district, we do not agree that the paramount authority rests with the Board of the receiving district; rather, a valid transfer requires the “consent” of both the “sender” and the “receiver.” The transfer must be made by the County Board of Education in which the “sending” district is located (§ 80-1517), or in the case of adjoining districts, by mutual agreement between the two local Boards of Education (“sending” and “receiving”).
Pertinent portions of § 80-414 (1960 Replacement) read as follows:
“Districts may be formed embracing territory in two (2) or more counties on order of the County Board of Education in each county where a part of the district will be situated, and changes of boundaries of school districts in such situations may be made in the following-manner : When copies of a petition of a majority of the qualified electors in each district affected, praying- for the formation of such a district, are presented to the County Board of Education concerned, the County Board of Education of the county in which lives the largest number of inhabitants of the territory affected shall, within five (5) days, give notice to the county and district boards affected of a hearing to be held not less than ten (10) days nor more than thirty (30) days from the date of said notice, to be held at some designated time and place in the proposed district. The County Board of Education, or their duly constituted representatives, of each coun ty in which territory of the proposed district is situated, shall attend such hearing and shall consider such facts as they may deem pertinent for consideration in the formation of the proposed district. Within five (5) days after said hearing the County Board of Education of each county in which territory of the proposed district is situated, if in the judgment of said hoards such a district should be formed, shall issue an order transferring the territory affected in their respective counties, to the proposed district. Said order shall be filed with the county supervisor of each respective county and with the county supervisor of the county in which is situated the largest number of inhabitants of the territory affected. Such district thus formed, for all school purposes, shall be thereafter a part of the county in which is situated the largest number of inhabitants of the territory affected. * * *”
It is stipulated in this litigation that “there are a greater number of inhabitants and students residing in the Howard County portion of Howard County School District No. 38 than in the Sevier County portion of said district, and the Howard County Board of Education administers Howard County School District No. 38.” It is also admitted that neither the Howard County Board of Education nor the Howard County Training School District No. 38 school board approved the transfer of these students. Thus, the pupils were not transferred in accordance with the provisions of either § 80-1517 or § 80-1528. It follows that the transfer was not properly made.
A similar dispute arose in Gillham School Dist. No. 47 of Sevier and Polk Counties v. Millard, 203 Ark. 1121, 160 S. W. 2d 215. There School District No. 47 included territory in both Sevier and Polk Counties, with the larger number of its inhabitants residing in Sevier County. The County Board of Education, or County Court, of Polk County transferred a number of students, from District No. 47 to District No. 79, which embraced territory in only Polk County. This Court, in holding- that the action of the Polk County authority in making such transfer was illegal, said:
“The trial court found, and the undisputed facts sustain the finding, that a majority of the inhabitants of district No. 47 reside in Sevier County. Section 11486 provides in part that ‘for all school purposes such district situated in two or more counties, shall be a part of the county in which is situated the largest number of inhabitants of the territory affected.’ District No. 47, under the statute, is a Sevier County district for all school purposes, and its domicile is in Sevier County. * * * That part of Polk County embraced in District No. 47 being in Sevier County for all school purposes, it follows that Sevier County authorities and not Polk County authorities have and had the right to transfer students or pupils out of District No. 47 into District No. 79 upon proper application. Polk County officials had no authority or jurisdiction to transfer students or pupils out of the Sevier County district to District No. 79, and the order doing so being void is subject to collateral attack.”
The Pupil Assignment Act can be of no aid to appellants for § 80-1527 only authorizes a county board of education to assign or transfer students to other schools “within its jurisdiction.” Here, the transfers were made by Sevier County High School District No. 1 and the Sevier County Board of Education. Neither had jurisdiction over pupils of Howard County School District No. 38 and the purported transfer was consequently not properly made.
However, the omission in the stipulation as to whether the Mineral Springs children were originally properly transferred to Howard County Training School District No. 38, necessitates a remand of this cause for further proceedings relative to the status of the thirty-five children who live in the Mineral Springs district. It is not clear whether this point was presented to the trial court, hut appellants, in their brief, strenuously argue that no showing has been made that any of these thirty-five children have ever been transferred to the Tollett District, and that a “majority of the involved children do not live within the Tollett District, have never lived in the Tollett District and are not in any way a part of the Tollett District.”
While, as stated, the transfer of the fifty children to Sevier County High School District No. 1 was not legally made, still if these children were never legally transferred from Mineral Springs to the Tollett School, the board of the latter district cannot he heard to complain. The Howard County Board of Education is not a party to this lawsuit, nor is the hoard of Mineral Springs School District No. 3. These hoards have made no complaint—have sought no relief—unless these thirty-five children have been previously properly transferred from the Mineral Springs District to Howard County Training School District No. 38, appellee has no standing to question the action of the Sevier County Board of Education and Sevier County High School District No. 1.
As to the fifteen children (formerly in the Paraloma and Graves Chapel School Districts which were annexed to Howard County Training School District No. 38) the decree is affirmed, hut the cause is remanded to the Sevier County Chancery Court with directions to conduct further proceedings for the purpose of determining whether the thirty-five students who reside in Mineral Springs School District No. 3 were legally transferred from that district to Howard County School District No. 38, and upon making such determination, to enter a decree consistent with this opinion.
It is so ordered.
This act was held valid in the case of Dove v. Parham, 176 P. Supp. 242.
Section 80-1527 deals with factors considered in assignment of pupils, and inter alia, provides that the local board of education shall consider “the availability of transportation facilities; * * * the psychological qualification of the pupil for the type of teaching and associations involved; * * * the choice and interests of the pupil.”
Section 80-1528 (1960 Replacement) provides: “A local Board of Education may, by mutual agreement, provide for the admission to any school of pupils residing in adjoining districts whether in the same or different counties, and for transfer of school funds or other payments by one Board to another for or on account of such attendance.”
This section is the same as the present § 80-414.
Also referred to as “local boards of education!” See § 80-1526. | [
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Paul Ward, Associate Justice.
While Wayne Harrelson, age 15, was riding a motorcycle on Wright Avenue in Little Rock he collided with the automobile driven by appellee, Nathan A. Whitehead. The collision occurred about 7:30 p.m. Suit filed by Wayne’s father, in his own right and next friend of Wayne, resulted in a jury verdict in favor of the defendant, Nathan A. Whitehead.
On appeal, appellant relies only on alleged errors in the instructions. It is contended by appellant that the court erred in refusing to tell the jury (in effect) that: (a) Wayne (being a minor) should not be held to the same standard of care for his own safety as if he had been an adult; and (b) appellee owed Wayne a higher degree of care than he would have owed him had Wayne been an adult. There was a third assignment of error but, in view of the disposition hereafter made of the other two, there is no need to discuss it.
(a) Because appellee charged Wayne with contributory negligence appellant requested the court to instruct the jury that he should “not be held to the same standard of care for his own safety as a person of adult age ...” Appellant cites the following decisions to substantiate this request: St. Louis, Iron Mountain & Southern Railway Company v. Sparks, 81 Ark. 187, 99 S. W. 73; Garrison v. St. Louis, Iron Mountain & Southern Railway Company, 92 Ark. 437, 123 S. W. 657; St. Louis Southwestern Railway Company v. Adams, 98 Ark. 222, 135 S. W. 814; Nashville Lumber Company v. Busbee, 100 Ark. 76, 139 S. W. 301; and, Kansas City Southern Railway Company v. Teater, 124 Ark. 1, 186 S. W. 294. In the Sparks case supra, we said:
“It has been frequently held that a child is not required to exercise the same capacity of self-preservation and the same prudence that an adult should exercise under like circumstances.”
It is our opinion, however, that the above decisions are not in point, because none of them involve a minor who was riding a motorcycle or driving a vehicle on the public highway. In fact, it appears that the exact issue here raised is one of first impression in this state and that it has seldom been raised in other jurisdictions. There is a statement in 77 A.L.R., 930 relative to the care imposed by law on a minor in a case of this kind, which reads:
“It is believed that in many cases, especially those involving negligence or contributory negligence in the operation of motor vehicles, the point goes by default, all concerned acting under the assumption that an adult standard applies.”
We agree with the above mentioned assumption as being both sound and reasonable. A casual review of our statutes pertaining to safety on the highways discloses that no distinction, expressed or implied, is made between the degree of care to be exercised by a minor and an adult. Note the following sections in Ark. Stats.: § 75-302 defines a “vehicle” as any device not moved by human power; defines a “motor vehicle” as a vehicle self-propelled; § 75-303 defines a “person” as every natural person . . . ; § 75-601 says no “person” shall drive a “vehicle” on a highway at a speed greater than is reasonable and prudent . . . ; §§ 75-604 and 75-605 say no “person” shall drive in such and such a manner; and, §§ 75-609 and 75-610 refer to what a “driver” of a vehicle shall or shall not do. In none of these statutes is any distinction made between a minor and an adult.
As regards safety to the traveling public we see no valid distinction between a vehicle driven by a minor and one driven by an inexperienced or reckless adult. As to the duty imposed on the latter, this Court, in Hughey v. Lennox, 142 Ark. 593, 219 S. W. 323, had this to say:
“An unskilled or inexperienced driver is not to be excused from liability for injuries inflicted because of his inexperience and unskillfulness. On the contrary, he should not frequent places where injury is liable to result from inexperience or unskillfulness in handling a car. When a person operates an automobile along a public highway frequented by other travelers, he assumes the responsibility for injuries resulting from his own unskillfulness in the operation of the car. ’ ’
Courts of other jurisdictions which have considered the issue here presented have consistently held minors to the same degree of care as adults in driving on the highways. In Wilson v. Shumate, (Mo. 1956) 296 S. W. 2d 72, the Court in construing a statute essentially like § 75-601 mentioned previously, held “reversibly erroneous” the following instruction:
“ ‘You are further instructed that in considering whether or not plaintiff is guilty of contributory negligence, as defined in other instructions, you should take into consideration plaintiff’s age, her intelligence and discretion, and, if you find from the evidence that plaintiff did not possess the intelligence and discretion of an adult at the time of her injuries, then the jury may consider these facts in determining whether or not plaintiff was guilty of contributory negligence on the occasion in question.’ ”
After quoting the statute, the Court said:
“Plaintiff (a minor) in this case was the operator of a motor vehicle and the standard under which she was to operate that vehicle was fixed by law. Consequently, her ‘age, her intelligence and discretion’ and whether she did or did not ‘possess the intelligence and discretion of an adult’ were not proper matters for the jury to consider ...”
To the same effect is the holding in Dellwo v. Pearson, (Minn. 1961) 107 N. W. 2d 859, where we find this significant language:
“ ‘To give legal sanction to the operation of automobiles by teen-agers with less than ordinary care for the safety of others is impractical today, to say the least. We may take judicial notice of the hazards of automobile traffic, the frequency of accidents, the often catastrophic results of accidents, and the fact that immature individuals are no less prone to accidents than adults.’ ”
See also: Betzold v. Erickson, 35 Ill. App. 2d 203, 182 N. E. 2d 342 (Ill. 1962) and Elliot v. Jensen, 9 Cal. 642, 187 Cal. App. 2d 389.
(b). Appellant next contends tbe court erred in refusing to tell the jury, in effect, that appellee owed Wayne (because be was a minor) a greater degree of care than be would bave owed him bad be been an adult. This contention is refuted, we think, by tbe conclusion we bave already reached. If Wayne were obligated to exercise tbe same degree of care (for bis own safety) as an adult, then there is no logical reason to impose on appellee a higher degree of care merely because Wayne happened to be a minor.
Moreover, from tbe record it is clear that appellee did not and could not bave known a minor was riding the motorcycle. Tbe law very wisely does not require appellee to guard against a hazard of which be was not aware and could not bave been aware of by tbe exercise of due care. See: Smith v. Wittman, 227 Ark. 502, 300 S. W. 2d 600.
Affirmed. | [
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Cableton Habéis, Chief Justice.
Sam Henry Clay was charged with the crime of burglary, the information alleging that Clay unlawfully broke and entered a house belonging to the prosecuting witness herein, and located in the city of Wynne, with the intention to commit a felony. After the court appointed counsel to represent appellant, a motion was filed for a Bill of Particulars, and the Prosecuting Attorney provided the information that the felony referred to was the offense of rape and/or sodomy. A plea of not guilty was entered and on trial Clay was found guilty of the offense of burglary, but the jury was unable to agree upon his punishment. Thereafter, the court fixed the punishment, and sentenced Clay to a term of 21 years in the Arkansas State Penitentiary. Prom the judgment so entered, appellant brings this appeal. Por reversal, two points are relied upon, first, that the evidence is insuffi eient to show that appellant unlawfully broke into or entered the borne of the prosecutrix, and second, the evidence is insufficient to show the criminal intent necessary to convict appellant of burglary. These points will necessarily have to be discussed together as the evidence offered by the state bears upon each separate contention.
The testimony reflects that the prosecuting witness received a telephone call on a Thursday afternoon, the party at the other end of the line inquiring if he could speak to a Miss Gats singer. Upon being informed that no one lived at the residence by that name, the party said, "No, don’t you remember, I talked to you in the saloon yesterday.” The prosecutrix then advised the caller that he had the wrong number, and hung up.
The prosecuting witness awakened around 6:10 on the morning of March 4, 1962. She heard someone walk up the steps to the house, which she took to be the paper boy, and, thinking nothing about it, ‘ ‘ dozed for about 10 more minutes. ’ ’ She awakened of a sudden and turned on her light. "I do not know why. When I did, I saw this much of somebody. Not their head, but saw their arm, like this, around the bannister of my stairs, the thing that holds up the stair steps. ’ ’ She stated that a glove was on the hand that she saw, and when she yelled, "Who are you, and what do you want?”, the person fled. She then observed that the front door was ajar, but did not see anyone. Around two hours later, the witness received a telephone call and the person on the telephone apologized for coining to her house, for doing what “he had did,” and stated he was sorry and meant no harm, but ‘ ‘ had to see ’ ’ the prosecutrix. He inquired if she would meet him somewhere, and made other remarks, to which she replied, “You get across town with your kind. ’ ’ The witness testified that she recognized the voice of the caller as the same man who had called on Thursday; immediately thereafter, she notified the Chief of Police and gave him the information which has been herein related.
The witness stated that on the same day, she found on the steering wheel of her car a paper (gross receipts tax monthly report form) which contained the following item of printing, “I am playing this while you are sleeping” (referring to radio). She also stated that her car would not start because the battery had ‘‘run down. ’ ’ This paper also was turned over to the Police Department.
The evidence reflects that on March 7, the prosecuting witness received a paper back book through the mail, entitled “Another Kind of Love.” The inside cover and first page contained filthy and obscene language which had been printed by pencil, and which included the following phrase, “The same thing Laura (one of the characters in the book) want to — do to — this other girl is what I want to do to you........................” (Here appeared the given name of the prosecuting witness.) Enclosed in the book Avas a printed letter Avhich requested her to meet the writer of the letter at the ice plant. This book was likewise turned over to the authorities. About a month later, appellant was taken into custody. Among his personal effects was a card which had been issued to him by the Cross County Department of Public Welfare entitling appellant to food assistance. On the back of this card appeared a telephone number which Kenneth ShaAv, the Chief of Police at Wynne, testified was the telephone number of the prose cuting witness. Other exhibits were offered in evidence which were taken from Clay’s personal effects, but a discussion of these exhibits is not necessary in determining whether there was sufficient evidence to sustain the conviction.
Clay made a statement to Shaw in the presence of State Patrolman W. A. Tudor, which was reduced to writing and offered in evidence at the trial. According to these policemen, the statment was voluntarily made; Clay was not threatened, abused or coerced in any manner, and no promises were made to induce the giving of the statement. The officers testified that appellant was advised that he could'have an attorney, but Clay declined the offer. In his statement, which was introduced into evidence, Clay related that he went to the home of the prosecuting witness on a Saturday night, sat in her car for a while (which was parked in the driveway), and at that time printed the words on the paper which she subsequently found on,the steering wheel. He stated that the next morning (about 8:00 o’clock) he went back to the house and knocked on the front door, and upon doing so, the door “came open because it wasn’t shut good.” He said that he “stuck” his head in the door, but turned around and left when the prosecutrix came to the head of the stairs.. He then stated that he called her On the telephone and told her that he was sorry for coming to the house; that he kept thinking about her and “wanted to be with her,” and on the next day, he printed a letter which he sent to her, together with the book heretofore mentioned. Clay admitted printing words to the effect that he desired to commit the act of sodomy upon her, but stated, “I didn’t really mean all of this stuff.” Subsequently, according to the testimony of the police chief, Clay denied that he had gotten into the car belonging to the prosecutrix or that he had gone to her house. Appellant subsequently told the officers that a white man had told him to write the letter and mail it and had given him $2.00 for doing so. However, Clay later gave a statement to Deputy Sheriff Ivy Bingold and Officer Tudor to the effect that these last statements were not correct. Ringold testified that Clay reiterated the truth of the original statement, i.e., that he sent the book, printed the words in the book, and had intended to do to the prosecuting witness what he had printed. As the deputy quoted Clay, ‘ ‘ That was my intention, but now it is not. ’ ’
Eddis Heath, a barber of Wynne, testified that appellant was employed by him in February and March of 1962, as a shoe shine boy. Heath stated that he saw the book, “Another Kind of Love,” in the possession of appellant, and also saw the hand printing on the inside of the cover and the first page; that Clay put the printing-in the book around the last of February. Heath also testified that he saw Clay printing a letter, which was done at the same time the printing was placed in the book. The barber said that he picked up both the book and letter and glanced at them, noticing the printing, but did not read the contents. He testified that the last time he saw appellant with the book, the latter was “wrapping it up” in paper similar to Exhibit 1, placed in evidence by the State.
Four letters were offered in evidence which Clay purportedly had written to the prosecuting witness. These letters bear the signature of ‘ ‘ Sam Henry Clay, ” “ Samuel H. Clay,” and “Sam H. Clay.”
No evidence was offered on behalf of the appellant.
To summarize, we have the testimony of the prosecuting witness that a person did unlawfully enter her home; that she received a call on Thursday, and a call on Sunday (following- the entry) from a person seeking a date; that she received the book, “Another Kind of Love, ’ ’ which contained hand printed matter (wherein the person doing the printing- expressed the desire to commit the act of sodomy upon her); she found the printed note on the steering- wheel, the note indicating that someone was sitting- in her car, playing- the radio; and the battery of her ear was “run down” to the extent that the car would not start. The testimony of Heath corroborates that Clay had the book in his possession at the shop, that he printed words in the book, and wrapped it in the manner in which it was received by the prosecuting witness. The testimony of the Chief of Police, Kenneth Shaw, established that the telephone number of the prosecuting witness was found in the possession of appellant, and appellant admitted the acts herein enumerated. We have held that the extrajudicial confession of a defendant, accompanied by proof that the offense charged was actually committed by someone, will warrant a conviction. Monts v. State, 233 Ark. 816, 349 S. W. 2d 350; Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32, and cases cited therein. Here, of course, there are several facts that corroborate the admissions of the appellant. We think the testimony is sufficient to establish that Clay unlawfully, and with the intent to commit a felony, entered the home of the prosecuting witness. We have held that the offense of burglary is complete even though the intention to commit a felony is not consummated. Thomas v. State, 107 Ark. 469, 155 S. W. 1165, and cases cited therein. The prosecutrix testified positively that the intruder was coming up the stairs, that she saw part of his body, and that he fled when she screamed. Clay admitted his presence at the house on this Sunday morning, though he stated that he only ‘ ‘ stuck ’ ’ his head in the door. We think the evidence is sufficient that Clay entered the premises for the purpose of committing a felony, viz., sodomy. As stated in Duren v. State, 156 Ark. 252, 245 S. W. 823, “It is not essential that the state prove by direct evidence an intention to commit a felony, for this fact may be, and generally is, established by proof of circumstances which indicate the intention of the burglar***”. We are of the opinion that the circumstances herein set out constituted evidence of a substantial nature, and justified the jury in reasonably finding that Clay entered the home with the intention to commit a felony.
No contention is made that the confession was unlawfully obtained, and no ruling of the court which would constitute prejudicial error, is asserted. It is simply contended that the evidence is not sufficient to establish that Clay entered the home, or that he entered with the intention to commit a felony. As herein stated, we find no merit in these contentions.
The judgment is affirmed.
Holt, J. not participating.
The witness originally testified that the date was February 11, and the information charged that the offense was committed on that date. It developed, however, during the trial that she was confused about the date, and the proper date was undoubtedly March 4. The prosecuting witness subsequently testified that she reported the occurrence to the Chief of Police on the same day that it occurred, and if his records reflected March 4, “they would be correct.” Out of hearing of the jury, the state moved that the information be amended to conform to the proof, i.e., to change the date accordingly, and counsel for appellant objected.
The court then inquired, in case it permitted the information to be amended, if counsel desired time within which to produce evidence concerning the change in date. This request was not made by appellant, and the court stated: “The court would' not permit the information to be amended to reflect a different date if it appeared that such a change would materially and substantially prejudice the defendant’s defense in this case. The reason that the court made the previous inquiry was so that it could be informed as to, whether or not, a delay in the immediate proceedings would, in the judgment of counsel for the defendant, enable them to provide evidence which might be productive of some recognizable defense. The question is one rather of fact than of law, and in the absence of a specific request for a continuance to some future time certain, the court will permit the information to be amended as indicated to conform to the proof introduced in the court.”
The name and address of another person also appeared on the back of the card, but apparently have no connection with the instant charge.
This exhibit consisted of the book, and paper in which it was wrapped.
This term has been used throughout the opinion, interchangeably with “prosecuting witness” to prevent embarrassment to the intended vitcim, though, of course, the state is the actual party. | [
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Per Curiam.
This is the same case as U. S. v. Pioneer American Insurance Company (No. 5-2732), 235 Ark. (Adv.) 267, 357 S. W. 2d 653. On June 4, 1962 we held that the attorney’s fee was superior to the federal tax lien. The United States Supreme Court granted certiorari, and on June 10, 1963 held that the federal tax lien was superior to the attorney’s fee (see U. S. v. Pioneer American Ins. Co., 374 U. S. 84, 83 S. Ct. 1651, 10 L. Ed. 770). Our judgment of June 4, 1962 was reversed and the cause remanded to us. The mandate of the United States Supreme Court has been duly received; and in accordance with the said mandate we now set aside our judgment of June 4, 1962, and reverse the decree of the Chancery Court, and remand this cause to the Chancery Court for further proceedings not inconsistent with the said opinion of the United States Supreme Court in this cause. | [
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G-eorge Rose Smith, J.
This is an action by Mr. and Mrs. John L. Stewart to recover damages for personal injuries suffered by Stewart in a traffic accident and for the ensuing loss of consortium suffered by his wife. The defendant Bailey appeals from a judgment, entered upon a jury verdict, awarding $10,000 to the husband and $1,000 to the wife. The appellant questions the sufficiency of the evidence and the amount of each award.
It is first contended that Bailey was entitled to a directed verdict, for the reason that Stewart’s injuries were caused solely by the negligence of a third person, Jimmy F. Cossey. We think the court was right in submitting the case to the jury, whose verdict found Bailey and Cossey to be joint tortfeasors, with 50 per cent of the total negligence being attributed to each of them.
The accident happened on a November afternoon near a drive-in cafe in Dardanelle, where Stewart was standing outside a window provided for take-out purchases. Cossey, driving a car owned by Don Duvall, and Bailey, driving his two-ton truck, were approaching the vicinity of the cafe from opposite directions. Cossey attempted to turn left, across Bailey’s traffic lane, to enter the cafe parking area. Cossey testified that he signaled his intention to turn, with his arm and with his signal light, and that he thought he could turn safely in front of the truck, which was still some distance away. In this thought Cossey proved to be mistaken. Bailey’s truck, after laying down 42 feet of skid marks, struck the righthand side of Cossey’s car, which had almost completely left the street, and knocked it with great force against a parked truck. The latter vehicle rolled forward and pinned Stewart to the wall of the cafe, causing serious and painful injuries to both his legs.
We think it plain that the issue of Bailey’s negligence involved a question of fact for the jury. Bailey testified that Cossey did not give a signal of any kind. The jury could have found, however, that the signal was actually given and that consequently Bailey was guilty of negligence in failing to observe it and thereby avoid the collision.
We do not consider Mrs. Stewart’s $1,000 judgment to be excessive. A wife’s right to recover for loss of consortium was recognized by our decision in Missouri Pacific Transp. Co. v. Miller, 227 Ark. 351, 299 S. W. 2d 41. Stewart was 36 years old at the time of his injury. He was confined to a hospital for eleven days and to his home for six weeks. During much of this time he was completely helpless, lying in bed with at first both legs and later one leg suspended in the air in a cast. Mrs. Stewart acted in the home as her husband’s nurse, giving up her job to be with him constantly and to attend to all his physical needs. It was about six months before Stewart was able to walk without crutches. In the circumstances it cannot be said that the verdict for Mrs. Stewart is so excessive as to require a reduction in this court.
This brings us to the principal question in the case: Did the trial judge, in entering a judgment in favor of Stewart for $10,000, correctly interpret the jury’s answer to a special interrogatory upon the subject of Stewart’s damages 1 The appellant contends that the award should have been credited with a settlement of $9,000 that Stewart had received from Cossey and Duvall, leaving a net liability against Bailey of only $1,000.
Bailey, the original defendant, brought Cossey and Duvall into the case as third party defendants. They pleaded, and subsequently proved, that they had extinguished their liability by the payment of $9,000 to Mr. and Mrs. Stewart. The release which the Stewarts executed, and which was introduced at the trial, recited that it was intended to conform to the Uniform Contribution Among Joint Tortfeasors Act and to relieve Cossey and Duvall from any liability for contribution. Ark. Stats. 1947, § 34-1005, was referred to in the release.
The trial judge, in instructing the jury, explained that the Stewarts ’ execution of the release did not relieve Bailey from liability, but the court did not indicate to the jury whether or not Bailey was entitled to benefit by the $9,000 compromise settlement. Instead, the trial judge told the jury that he would be able to enter a proper judgment if the jurors answered certain interrogatories, among which the following (with the jury’s answers) are pertinent to this appeal:
“1. Do you find from a preponderance of the evidence that the plaintiff, John L. Stewart, is entitled to recover damages in this action from the defendant, John M. Bailey?
“Yes.
“2. If your answer to the above question is ‘Yes’ then answer this question:
“What do you find from the evidence, if any, to be the actual damages sustained by the plaintiff, John L. Stewart, if any, without reference to the amount of payment in settlement as made by Jimmy F. Cossey and Don D. Duvall?
“$10,000.00
(Insert actual damages, if any) ”
Before the court entered judgment upon the verdict the Stewarts ’ attorney filed a motion asking that Stewart be given judgment for the full $10,000, or, in the alternative, that he be granted a new trial owing to the jury’s mistake. With this motion counsel tendered an affidavit, signed by the jurors, stating that the jury had intended for the $10,000 award to be in addition to the $9,000 settlement. The parties submitted briefs upon Stewart’s motion. The trial court, citing Giem v. Williams, 215 Ark. 705, 222 S. W. 2d 800, and Walton v. Tull, 234 Ark. 882, 356 S. W. 2d 20, held that Stewart was entitled to judgment for the entire $10,000, without any credit being given for the $9,000 settlement.
We lay aside, as did the circuit judge, the jurors’ affidavit. Such an attempt to explain the verdict is incompetent, for reasons of public policy, and should not have been made. Reiff v. Interstate Business Men’s Acc. Assn., 127 Ark. 254, 192 S. W. 216.
The Giem case and the Walton case, relied upon by the trial judge, do not quite reach the point at issue. In the former we held that where the jury had been informed of a compromise payment made by another tortfeasor its amount should not have been subtracted from the verdict, as the jury had already taken it into consideration. In the Walton case we indicated (and later declared, after the trial below, in Woodard v. Holliday, 235 Ark. 744, 361 S. W. 2d 744) that snch a deduction would be proper where the jury had not been told about the settlement made by the other tortfeasor.
Those cases would be controlling if it were not for the fact that here the pivotal question was explicitly submitted to the jury by the court’s interrogatories. The court asked the jury, by the interrogatory we have quoted: “What do you find ... to be the actual damages sustained by the plaintiff, John L. Stewart, if any, without reference to the amount of payment in settlement as made by Jimmy F. Cossey and Don D. Duvall¶”
We cannot construe the clause that we have italicized as being the equivalent of saying “after first having deducted” the amount of the Cossey-Duvall payment. In fact, the actual statement and the one we have just suggested are diametrically opposite. We find it impossible to hold that a finding of the actual damages “without reference” to the amount of a compromise settlement is in effect a finding of those damages after the amount of the settlement has been taken into account.
The appellant asks that we end this litigation by reducing Stewart’s judgment to $1,000. We are not convinced that justice would be achieved by that course. The Stewarts’ post-trial motion asked for judgment in the full amount of the verdict or for a new trial. The circuit judge erroneously entered judgment for the full amount. Had he rejected that part of the movants’ prayer he might still have granted a new trial upon the ground that a net award of $1,000 damages to Stewart (the amount of the verdict less the amount of the settlement) would have been against the weight of the evidence. Oliver v. State, 34 Ark. 632; Bockman v. World Ins. Co., 222 Ark. 877, 263 S. W. 2d 486. The fact that the trial judge actually entered a judgment for the full $10,000 strongly indicates that he would not have regarded a $1,000 recovery as representing everything that Stewart was entitled to. In this situation the only fair course is to grant Stewart’s alternative prayer for a new trial.
The judgment in favor of Stewart is reversed, and, unless he elects within seventeen days to accept a judgment for $1,000 in accordance with the verdict, the cause will be remanded for a new trial. | [
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Sam Robinson, Associate Justice.
The issue is whether appellee, Floyce Duncan, shall be required to pay part of the fee for the attorney employed by the appellant, Hendrickson, to take the necessary legal steps to partition 117.90 acres of land. Appellant owns 74/144, appellee owns 60/144, and others own 10/144 of the property. The chancellor held that the proceeding is adversary and that, therefore, appellee is not liable for a pro rata part of the fee for the attorney employed to prosecute the partition proceeding.
Hendrickson has appealed.
The action was instituted by appellant, Hendrickson, filing a complaint in the Chancery Court January 18, 1962 in which he alleged the interest owned by himself, Mrs. Duncan, and others, and asked for partition. Summons was issued and served on appellee as one of the owners. The complaint prays that “partition of said lands be made according to the respective rights of the parties aforesaid, or, if it be found that such partition cannot be had without material injury to the rights of the parties hereto, that said lands be sold and that the proceeds of such sale be divided among said parties ...”
Appellee, Mrs. Duncan, immediately employed an attorney to represent her, and on February 9, 1962, filed a separate answer in which she asked that she be reimbursed for certain expenses she had incurred in connection with the property and asked that the property be partitioned. Everyone concerned must have understood that although Mrs. Duncan wanted the land itself divided among the owners, she strenuously objected to the land being sold and the proceeds divided. The case was therefore set for trial; the trial was held on April 4, 1962; and the property was finally sold under order of the court.
Mrs. Duncan testified at length on direct and cross-examination. It is clear from her testimony that the pro eeeding is adversary. She did not want the property sold as a unit; she wanted to divide it and was willing to take any part; in fact, she offered to take less than the interest she owned if it was divided. Although she was not living on the property at the time suit was filed or at the time the case was tried, she had lived on it for a long time, from 1928 to 1955. She testified that to her the land had a great sentimental value and that she hoped to go back there and retire. She stoutly resisted the sale of the land.
Ark. Stat. Ann. § 34-1825 (Repl. 1960) provides: “Hereafter in all suits in any of the courts of this State for partition of lands when a judgment is rendered for partition, it shall be lawful for the court rendering such judgment or decree to allow a reasonable fee to the attorney bringing such [suit], which attorney’s fee shall be taxed as part of the costs in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.” This court has held, however, that the foregoing statute is not applicable in an adversary proceeding. Warren v. Klappenbach, 213 Ark. 227, 209 S. W. 2d 468.
The chancellor’s finding that the proceeding is adversary is not contrary to a preponderance of the evidence. Appellee is therefore not liable for a part of the attorney’s fee.
It might be added that Act 518 of 1963, dealing with attorneys’ fees in a partition action is not applicable here as it did not become effective until this matter had been adjudicated.
Affirmed. | [
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Paul Ward, Associate Justice.
Pursuant to a petition filed by appellant herein (Minnie Hazel Smith) the Chancery Court of Nevada County, on December 1st, 1958, ordered appellee herein (James Leslie Smith) to pay her $18.75 per month for maintenance. No divorce was asked, and there were no minor children involved. The record discloses that appellee, after being cited for non-payment once or twice, made all payments up to (at least) November 13, 1961.
On the last mentioned date the Chancery Court of Miller County granted appellee a divorce from appellant. Appellant was served with notice of the divorce proceedings and was present when the decree was rendered, but made no objections of any kind, and did not prosecute an appeal from the decree. The decree states that appellant sought no affirmative relief. In other words, appellant did not ask Miller County Chancery Court to grant her alimony or maintenance.
Later, on April 2, 1962, appellant filed a petition in the Chancery Court of Nevada County to punish appellee for failure to make the maintenance payments for the first three months of 1962. The trial court refused to hold appellee in contempt, stating;
“. . . there is no further liability on the part of the Defendant, to pay any other or further alimony to the Plaintiff herein, and he is relieved of any and all liability of any and all kinds, by reason and virtue of the Decree of Divorce heretofore granted in the Chancery Court of Miller County ...”
In prosecuting an appeal from the above order, appellant relies on two points for a reversal which we now discuss.
One. It appears to be the contention of appellant that the Miller County Court, in the divorce proceeding, had no jurisdiction to grant or deny alimony to her since the Nevada County Court had already made her a monthly allowance of $18.75 for maintenance. In Mr. Smith’s complaint for divorce (in Miller County) there appears this allegation: “. . . the Defendant is gainfully employed and has an income of her own and that she is not entitled to any alimony or money judgment of any kind against this Plaintiff.” In her answer to the above allegation Mrs. Smith pleaded “res judicata”, stating the matter had already been adjudicated by the Nevada County Court. The Miller County Court granted Mr. Smith an absolute divorce but did not grant any alimony to Mrs. Smith.
Appellant does not question the jurisdiction of the Miller County Court to grant the divorce, and, since she was personally served, it must be admitted the court had jurisdiction over her person. If Mrs. Smith had asked the Miller County Court for alimony or maintenance the court had jurisdiction to grant or deny the same. In the case of Tracy v. Tracy, 184 Ark. 832, 43 S. W. 2d 539 we said “The general rule is that the final order and decree supersedes an order for temporary alimony. . . .” In Wagster v. Wagster, 193 Ark. 902, 103 S. W. 2d 638, we cited and approved the above statement or rule, and then went on to state:
“That is the general rule where both parties are present, and where the court has jurisdiction over both issues, divorce and alimony. It has, however, never been held by this court that the granting- of a divorce, where no personal service has been had on the defendant, is a bar to the alimony granted by another court that did have jurisdiction over both parties. ’ ’
It follows from what we have heretofore said that the trial court was correct in refusing- to hold Mr. Smith in contempt of court for refusing to continue the monthly payments of $18.75.
Two. In her brief appellant says it is felt that the Second Division Chancellor had no authority to issue any type of order on July 26, 1962. The order referred to is the one (signed by “Ben Shaver, Chancellor Second Division ’ ’) refusing to hold Mr. Smith in contempt. Appellant concedes that Judge Shaver was Chancellor of the Second Division of the Nevada County Chancery Court. Appellant’s objection is based on an instrument signed by the Chancellors of the First and Second Divisions purporting to assign the trial of cases in the Second Division to the First Division after July 1,1962. We find no merit in this contention. In the first place the transfer agreement was for the convenience of the two chancellors, it does not purport to increase or diminish their jurisdiction, and they were at liberty to waive or change its provisions at any time. Moreover, appellant made no objection to the presiding chancellor during- the entire trial. We are reluctant to believe the chancellors meant for one of them to try a case and for the other one to decide it.
Affirmed. | [
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Jim Johnson, Associate Justice.
This action was brought by appellant, Elmer Jeffery and John W. Mc-Cracken, d/b/a J. W. McCracken, Contractor, against appellees Norman N. Graves and Warren L. Graves, d/b/a Graves Brothers, Contractors, and C. D. Gordon, Contractor, to recover damages to a highway overpass which appellant alleged was proximately caused by the negligence of appellees in parking a truck-load of baled hay beneath the steel and concrete span. A fire from unknown origin burned the hay and the heat thus generated, warped and damaged the overpass. Appellant was required to repair the damaged portion of the overpass before it could be accepted by the Arkansas Highway Department.
At the close of appellant’s evidence, appellees’ motion for a directed verdict was granted by the trial court. From that verdict comes this appeal.
By way of prelude, we find ourselves in agreement with Professor William Prosser who commented on the causation factor in his learned treatise on the law of tort: “There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which opinions are in such a welter of confusion. ’ ’ Prosser, Torts 218 (2d ed.). Our own reported cases are full of attempts to fix and define within certain limits a comprehensible meaning to the term ‘ ‘ proximate cause ’ ’, but in the final analysis the term is so elusive that we are compelled in each case which reaches us to consider it upon its own merits in the light of all the attending circumstances it presents. This case is no different.
The law is well settled in this state that before one can be held liable for an alleged negligent act, that act must be the proximate cause of the injury complained of, and also be of such a nature that the consequent injury should be one which, in the light of attending circumstances, a person of ordinary foresight and prudence would have anticipated. Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S. W. 816, 31 L.R.A., N.S. 1020.
The first question we are asked to resolve is: did appellant offer evidence that the act of parking the truck of baled hay beneath a steel and concrete structure constituted negligence, and if so, was that act the proximate cause of appellant’s injury? The lav? is equally well settled that proximate cause must be shown. Meeks v. Graysonia, N. & A. R. Co., 168 Ark. 966, 272 S. W. 360. Assuming without deciding that the act of parking the hay was an act of negligence we must consider the second portion of the question. Did appellant offer proof of any nature that this act was the proximate cause of the injury? We think the answer is found in appellant’s entire offer of proof on causation, which we set out in full from the record:
“Direct Examination
Q. State your full name to the jury.
A. Bill Struebing.
Q. By whom are you employed?
A. Arkansas State Police. •
Q. What division are you in?
A. Fire Marshal Section.
Q. How long have you been in that section?
A. Since it was transferred to the State Police in 1955.
Q. You are head of that section?
A. Yes.
Q. Have you received any particular training in that field as fire marshal work?
A. I have attended schools in Oklahoma, A & M now Oklahoma University and I have attended Purdue University and University of Texas.
Q. During these courses of studies have you had occasion to study the sources of heat and fire potential of hay and straw?
A. Yes sir.
Q. During the five years you have been chief of the fire marshal section have you had occasion to make investigations and studies of fires and fire with relationship to burning of buildings?
A. Yes we have investigated fires in hay barns and structures of that type.
Q. Can you state from your studies and from your experience whether or not hay is said to be highly inflammable substance?
A. Yes it is classified as such.
Q. "Will you state whether or not straw is classified as such?
A. General classification would be vegetation such as hay and straw, broom corn, tobacco and crops of that nature.
Q. They all fall under the same general category?
A. Yes.
Q. Will you state whether or not under certain given conditions straw might be combustible?
A. You are talking about spontaneous ignition. If the moisture content is over thirty there is a possibility of fermentation which causes heat and if allowed to generate over a period of time it can generate enough heat to where fire will occur.
Q. This can happen under certain given situations as far as straw is concerned?
A. Hay and straw that classification with the moisture content.
Q. You can not make a determination on investigation unless you make an extensive study of the product at a given time?
A. Yes as to humidity and things of that nature.
Q. With reference to the discussion we had concerning this fire, you were not called in to investigate this matter?
A. No sir. That was not brought to our attention.
Cross Examination
Q. Will you explain what is hay?
A. Hay, in my opinion, would be a crop that could be fed to cattle.
Q. What is straw?
A. Straw is a byproduct of a grain crop after the grain has been removed.
Q. Is there any difference in your opinion whether hay or straw as to the combustibility?
A. After the heat is built up they both burn with rapid combustion.
Q. What do you mean by rapid combustion?
A. Well rapid, rapid oxygenation after a certain temperature is reached the fuel involved in this area will rapidly ignite and a rapid fire spread will be the result.
Q. Is there any difference in the combustibility of hay and straw?
A. Again the moisture content would have some bearing, that and humidity.
Q. As far as the two, when the moisture content is the same is there any difference in the combustibility?
A. It would take less heat to ignite this leaf than straw if the heat temperature were raised to that degree both would ignite possibly at the same rate.
Witness excused.”
From the foregoing testimony, which was the only offer by appellant as to causation, all the court and jury were told is that under certain circumstances and conditions hay is subject to spontaneous combustion, or, as the witness said, spontaneous ignition. The court and jury were not told that these same or similar circumstances existed at the place and time the hay became ignited from a cause appellant concedes is unknown and which appellant argues must be left to conjecture.
Causation is a fact as much as negligence is a fact. It must be proved. Meeks v. Graysonia N & A R Co., supra. We unhesitatingly reject any suggestion that conjecture and fact are on an equal plane. Biddle v. Jacobs, 116 Ark. 82, 172 S. W. 258. To avoid conjecture in the instant case, appellant should have offered some substantial evidence, however slight, that the same or similar circumstances and conditions within the hay itself (such factors as suggested by appellant’s expert witness, i.e., moisture content, humidity, etc.) constituted such a hazard that appellees could have or should have foreseen the consequences of the act of parking that load of hay at that place and at that time, or some other causation traceable to appellees.
It is within common knowledge of mankind that hay is combustible. But it is not within common knowledge of mankind what circumstances and conditions must exist to cause hay to burst into flame from heat it has generated. Appellant produced adequate evidence to show the necessary circumstances and conditions which could cause hay to ignite spontaneously. But after giving appellant’s evidence its strongest probative force and every legitimate inference that may be adduced from the testimony and exhibits, St. Louis S. R. Co. v. Britton, 107 Ark. 158, 154 S. W. 215; Cousins v. Cooper, 232 Ark. 605, 339 S. W. 2d 316, there is a total failure of evidence to show that these circumstances existed or that appellee knew or should have known that these existed at the time and place of the act for which appellant complains.
It therefore follows that failure by appellant to submit evidence to place the fact of causation into dispute created no question of fact for a jury to decide. The trial court properly ordered a directed verdict. To hold otherwise could make hay handlers insurers as a matter of law.
The second question, which involves the relationship of master and servant between the appellees, has now become moot.
Affirmed.
Robinson, J., dissents; Holt, J., not participating. | [
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Frank Holt, Associate Justice.
This is an appeal from a decree of the Saline Probate Court disallowing the claims of the appellants against their father’s estate.
In September of 1949, Maud E. Covington acquired 25 acres of ancestral land by partition action in the Saline Chancery Court. On February 15, 1956 she and her husband, J. W. Covington, conveyed, by warranty deed, the said property for the consideration of $7,500.00 cash. Mrs. Covington died about a year later, in January of 1957. She was survived by her husband and their three adult children, Charles Covington, Geraldine Covington Mabry and Sarah Covington Coocher. Mr. Covington died on April 17, 1961, at the age of 85, leaving as his heirs the three above named children and another daughter, Trebie Corley, by a previous marriage. Trebie Corley was duly appointed executrix of her father’s, estate pursuant to the terms of his will.
Mrs. Mabry, Mrs. Coocher and Charles Covington, appellants, filed separate claims against the estate of their deceased father, J. W. Covington, in the amount of $2,500.00 each. These claims were based on a purported oral agreement with their father that during his lifetime he would have the use of the $7,500.00 and upon his death each of them would receive, by the terms of his will, one-third of this amount, or $2,500.00. We do not have before us the provisions of the will. In due time the executrix, the half sister of appellants, filed her accounting to the effect that she had personally paid all debts of the estate; that the total value of the estate was $896.43; that the claims of her two half sisters and half brother, each in the amount of $2,500.00, had been filed against the estate; that she had not approved them, and asked that they be disallowed by the court. This appeal comes from a decree of the court disallowing each of appellants’' claims.
For reversal appellants urge, in effect, that the order of the probate court disallowing their claims was against the preponderance of the evidence.
The appellants, Geraldine Mabry and Charles Covington, were allowed to testify, over the objections of appellee, about this alleged oral agreement with their father. The appellant, Sarah Coocher, did not appear to. testify. Appellee contends that the testimony of appellants as to any transaction or conversation between themselves and their deceased father was incompetent and in violation of the Constitution of Arkansas, Schedule, § 2, which provides:
"In civil actions no witness shall be excluded because he is a party to the suit or interested in the issue to be tried. Provided, that in actions by or against executors, administrators, or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, interstate or ward, unless called to testify thereto by the opposite party. Provided, further, that this section may be amended or repealed by the General Assembly.”
The probate court overruled appellee’s objection on the ground that he considered the three claims separately and that each claimant could testify as to the decedent’s transactions or conversations with the other claimants. This was a correct ruling on the law as announced in Bush, Admx. v. Evans, 218 Ark. 470, 236 S. W. 2d 1013, wherein we held that the probate court could consider a husband and wife’s claim as separate claims and allow each claimant to testify as to the decedent’s transaction with the other claimant. It is a well defined principle of law that appeals from a probate court decree are heard de novo just as appeals from chancery and, further, that the burden is upon the claimant to prove the claim by a preponderance of the competent evidence. Credit Industrial Co., et al v. Blankinship, 230 Ark. 371, 323 S. W. 2d 198; Harris v. Harris, 225 Ark. 958, 286 S. W. 2d 849.
Mrs. Mabry testified, in substance, that some time after the death of her mother she took her father to Pine Bluff, where her sister, Sarah Coocher, resided, and these three discussed disposition of the $7,500.00. It appears that Mrs. Mabry, Mrs. Coocher and their father then proceeded to Dermott and further discussed the problem with Charles Covington, whereupon it was agreed that their father could have the use and benefit of the $7,500.00 and upon his death it would be divided between Geraldine, Sarah and Charles. She further testified that she, her sister and her brother, before the Pine Bluff-Dermott trip, had never contacted each other about such an ‘ ‘ arrangement ’ ’ and that they just ‘ ‘ automatical ly had the same opinion”. Charles Covington testified in support of his sisters’ claims.
The testimony supports the alleged oral agreement between claimants and their father but other circumstances belie the validity of their claims. The three claims in this case are based solely upon the testimony of two of the claimants. The third claimant, for some reason, did not appear to testify. Although technically claimants are not parties to each other’s claims, it cannot be said that they are disinterested witnesses.
Some mention is made of a loan of $2,500.00 of this money, and of the placing of some money in a bank account, but we do not have the benefit of any records of such transactions. There is no proof in this record, other than appellants’ testimony, how much, if any, of the $7,500.00 was in existence at the time their mother died which was about a year after she received this sum.
The Probate Judge was in a position to observe the demeanor of the witnesses when they testified, their manner of speech and their willing or unwilling answers to questions propounded to them. The probate Judge had the opportunity to observe more than printed words which is all we have before this court. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517.
After a careful review of the record de novo we cannot say that the trial court erred in disallowing the three claims. The decree is therefore affirmed.
Commonly known as “The Dead Man’s Statute”.
Claimant, Charles Covington, complains that he was not allowed to testify fully about his sisters’ claims. After reviewing his testimony we find no merit in this contention. | [
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Frank Holt, Associate Justice.
This is an action for the recovery of damages arising out of an accident involving three vehicles and resulting in the deaths of three persons. The appellee, William Francis Garner, administrator of the estate of Mrs. Mavis Jean Smith, sued Superior Forwarding Company, Inc., and Johnny Hunt, the appellants, and the estate of Richard L. Palmer to recover damages for the benefit of Mrs. Smith’s estate and her three minor children.
The appellee alleged in his complaint that the death of Mrs. Smith was a result of the concurring negligence of Johnny Hunt, the employee of Superior Forwarding Company, Inc., and Richard L. Palmer. The appellants filed their joint answer denying any negligence on their part and alleged, among other things, that the cause of the accident was the concurring negligence of Edward M. Spurlock, Mrs. Smith, and Richard L. Palmer. Various other pleadings were filed in this action. Upon a trial judgment for the appellee was rendered for $44,005.00. The jury apportioned the degrees of negligence at 50% to the Spurlock estate, 25% to the ..Palmer estate, and 25% to the appellants, Hunt and Superior Forwarding Company, Inc. The appellants made timely motions for a directed verdict which were overruled by the court.
On appeal appellants rely on several points for reversal, one being the point that the trial court should have directed a verdict for appellants, Superior Forwarding Company, Inc., and Johnny Hunt. Since we agree with the appellants on this point it is unnecessary to discuss the others.
The rule is well settled in our state that if there is any substantial evidence, when viewed in the light most favorable to the plaintiff and given its highest probative value, the question must be submitted to the jury. Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4. We thus proceed to examine the evidence in this case.
This tragic accident, taking the lives of Mrs. Smith, Spurlock and Palmer, occurred on State Highway No. 63 four miles east of Hoxie, Arkansas at about 12:55 A.M. on December 24, 1960. Mrs. Smith, a widow, was a passenger in a 1957 Chevrolet hardtop automobile owned and operated by Spurlock. Palmer was alone, driving a 1955 Chevrolet convertible automobile. Hunt was the driver of a 1958 International trailer-truck owned by his employer, Superior Forwarding Company, Inc. The appellee alleged in his complaint that Mrs. Smith and Spur-lock were traveling west in the direction of Hoxie and were being followed by Hunt; that Palmer was driving east and was meeting Spurlock and Hunt when his car veered over the center line of the highway and collided with the Spurlock automobile and then Hunt’s trailer-truck simultaneously collided with these two passenger cars.
During the trial, the court permitted the appellee to amend his complaint to conform to the proof and allege that he was entitled to recover regardless of what direction the Spurlock car was traveling. It could not be determined with any certainty from the testimony or physical evidence in which direction the Spurlock and Palmer vehicles were traveling. Hunt testified at the trial that he could not say which one of the vehicles he was following. He had previously given two written statements to the contrary. In fact, the court instructed the jury, without any objection, that as a matter of law, the vehicle being followed by the truck was free of negligence. This instruction reads as follows:
“You are instructed that the driver of the automobile proceeding on the highway toward Hoxie, Arkansas, under the undisputed evidence in this case is not guilty of any act of negligence and is not liable to any party in this action.”
In spite of this instruction the jury found the drivers of both passenger cars negligent. It could be that the jury was unable to determine which of the two passenger vehicles preceded the truck. The court offered to have the jury consider further its failure to follow this instruction. The appellants objected. The court ruled the appellants could not later complain and overuled their motion for a new trial.
Palmer, 23 years of age, was a ministerial student at Bob Jones University at Greenville, South Carolina and had been visiting in the home of his financee’s parents at Fort White, Florida. He left there early on the morning of December 23,1960, en route to his home in Kansas City, Missouri for Christmas.
Mrs. Smith, a widow 34 years of age with three minor children, on the night of December 23rd left her home between 8 and 8:30 P.M. in the company of Spur-lock after making arrangements for the proper care of her children. Both Spurlock and Mrs. Smith were residents of Jonesboro, Arkansas. There is no evidence as to where the couple was going or at what time Mrs. Smith would return to the Smith home.
Hunt, the driver of the trailer-truck, was a resident of Little Rock, Arkansas, and an employee of Superior for about nine years. Since Mrs. Smith, Spurlock and Palmer were killed in this accident, Hunt is the only surviving eyewitness. Hunt testfied that he left Little Rock about 8 P.M. on the evening of December 23rd to make his regular round-trip to Jonesboro; that he left Jonesboro about 12:05 A.M., December 24th, to return to Little Rock; that he was proceeding west in the direction of Hoxie at about 50 miles per hour when he came up behind a car traveling in the same direction as himself and proceeding at a speed which Hunt estimated at about 40 miles per hour. He further testified that he was approaching the front vehicle for the purpose of passing when he saw the lights of an oncoming vehicle about a mile distant coming at what appeared to be a high rate of speed; that he slowed down his speed to that of the car preceding him and maintained a distance of 80 to 100 feet behind this car without ever attempting to pass it; that the highway was straight and level and when the oncoming car about 75 to 100 feet up the road from the other passenger car, its right wheels went of the pavement a foot or so onto the shoulder of the highway while still traveling at a fast rate of speed and then came back onto the pavement and crossed into the wrong lane running into the car preceding Hunt; that the vehicles collided with a “splattering” impact, like an egg dropped on the floor, about 90 to 100 feet in front of him, the force of the Jonesboro bound car pushing both ears back toward Hunt’s truck, spinning clockwise together down Ms travel lane and hitting the front of his track in only a second or “just seconds”, causing the truck to jackknife and stop in such position with the trailer and most of the tractor in his proper traffic lane.
Hunt testified there wasn’t much damage to his track except from the fire. He testified that the first impact with his truck was not severe and did not jolt him very hard and the rest of the impact was at the drive axle. The front end of the Spurlock vehicle was found wedged under the right side of the tractor of Hunt’s vehicle. Most of the rear section, or the main wreckage of Spur-lock’s car was found approximately 75 to 90 feet back of the trailer toward Jonesboro in the Hoxie traffic lane. The bodies of Spurlock and Mrs. Smith were at a point east of this main wreckage of the Spurlock car or about 100 feet from the rear of the trailer. Hunt further testified that while following the unknown vehicle he had taken his foot off the accelerator and had his foot on the brake but could not say that he did or did not apply his brakes at any time before the impact with his vehicle. There were no skid marks found from any of the vehicles.
The Palmer car came to rest on the north shoulder of the Hoxie bound traffic lane with its rear end near the edge of the highway, the front end pointed toward the northeast, or the ditch on the north side of the highway. The rear portion was about even with the front end of the trailer with a distance of about 8 or 10 feet between the trailer and the car. There was damage to the left front part of the car which would indicate a head-on collision. The right front door was damaged from a heavy blow. The rear portion was undamaged. Palmer’s body was removed from his car.
The truck, the Palmer car and the front section of the Spurlock vehicle burned with portions of the asphalt road damaged by fire. Wreckage was strewn and scattered and it cannot be ascertained from the position of the vehicles which passenger car had been proceeding-in which direction. Dirt, glass and debris were found on the highway from a point even with the tractor for a distance of approximately 125 feet to the rear of the trailer. The only visible evidence of any cut or mark on the highway was approximately 75 to 100 feet east of the rear of the trailer. Appellee contends that the only logical explanation of the position of the impact with Hunt’s truck is that it occurred somewhere in the vicinity of the main wreckage of Spurlock’s car. However, there was no evidence indicating a dragging of the wreckage by the tractor. A state policeman testified that he investigated the accident immediately afterwards and on two other occasions that day but was unable to find ‘ ‘ any evidence where the impact occurred.”
According to Hunt, he experienced no ice or hazardous driving conditions before the accident. He first noticed some ice on a portion of the road after he got out of the truck and walked a few steps following the accident. Two drivers who traveled Hunt’s route, coming up on the scene of the accident shortly thereafter, testified they had encountered no ice or hazardous driving-conditions before they arrived. Another witness, who lives about “one-half of a quarter” from the scene of the accident, testified that upon being awakened by explosions from the gasoline and tires he walked to the scene and never observed any ice or slippery walking-conditions. According to some witnesses, weather conditions were causing ice to form, moving from the north or Hoxie toward the scene of the accident. No witness testified that before the accident occurred there existed any ice or other hazardous road conditions between Jonesboro and the scene of the accident.
The specific acts of negligence attributed to Johnny Hunt on which appellee relies are: (1) Failed to keep a proper lookout, (2) was driving at a fast, reckless and unreasonable rate of speed for the then existing conditions, (3) failed to reduce his speed commensurate with existing road conditions, (4) failed to keep his vehicle under control, (5) was following too close, and (6) was carelessly attempting to overtake and pass the vehicle in front of him.
According to the evidence in this case, Hunt was keeping a proper lookout inasmuch as he observed the oncoming car and thereupon stayed in his proper lane of traffic awaiting the approaching car to pass him. He also slowed his vehicle to a speed of approximately 40 miles per hour and maintained a distance of 80 to 100 feet behind the car preceding him without attempting to pass this vehicle. There is no proof there was any ice or hazardous driving conditions between Jonesboro and the scene of the accident.
The court instructed the jury properly, and without objection, that the maximum speed limit was 60 miles per hour. There is no evidence in this case that at any time Hunt failed to keep his vehicle under control. What more could Hunt, or any driver under the circumstances then existing, have done when this oncoming vehicle, moving at a high rate of speed, suddenly veered across the highway and crashed into the vehicle preceeding Hunt 1 Shearman Concrete Pipe Co. v. Wooldridge, 218 Ark. 216, 234 S. W. 2d 382. There is no proof that Hunt was traveling other than in his own proper lane, where he should have been, at all times before and after this accident. Under the provisions of Ark. Stats. Anno., 75-614, Hunt had a right to follow the preceding vehicle at a reasonable and prudent, distance for the purpose of overtaking and passing it. Hunt denies, and there is no proof to the contrary, that he ever attempted to pass the vehicle in front of him. There are no physical facts in this record that Hunt’s vehicle was ever out of its proper lane of traffic. In fact, when Hunt’s vehicle came to rest the trailer was wholly within the proper traffic lane with the tractor in a jackknife position and the front end across the center line.
On the basis of the record presented to us in this case we are of the opinion that the trial court should have directed a verdict as requested by the appellants. As we view the evidence in this case, appellee’s cause is based on inferences, speculation and conjecture. We do not find any substantial evidence to support any of the allegations of the appellants’ alleged acts of negligence in this case. The burden was upon the appellee to produce some substantial evidence from which the jury might find some act or omission constituting negligence by the ap pellants as alleged in appellee’s complaint. Such evidence can be established either by direct or circumstantial evidence but the appellee cannot rely upon inferences based on conjecture or speculation in order to establish proof of negligence.
In Kapp v. Sullivan Chev. Co., 234 Ark. 415, 353 S. W. 2d 5, Mrs. Kapp was injured in a three-car collision in which her car seat belt broke. She brought suit against the appellee alleging that her injuries resulted from a defective seat belt. This court held that a directed verdict in favor of the defendant-appellee was proper and in doing so stated:
“ * * * Several possible causes of the break are argued, but in truth, they are only possibilities, and do not reach the status of probabilities. Negligence cannot be established by guess work. As stated in Henry H. Cross Co. v. Simmons, 96 F. 2d 482, a decision under Arkansas law:
‘ To submit to a jury a choice of possibilities is but to permit the jury to conjecture or guess, and where the evidence presents no more than such choice it is not substantial, and where proven facts give equal support to each of two inconsistent inferences, neither of them can be said to be established by substantial evidence and judgment must go against the party upon whom rests the burden of sustaining one of the inferences as against the other. ’ ’ ’
In Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4, this court said:
“ * * * Conjecture and speculation, however plausible, cannot be permitted to supply the place of proof, * * * ”.
In Moran v. State, 179 Ark. 3, 13 S. W. 2d 828, we said:
* * It is not allowable, under the rules of evidence, to draw one inference from another, or to indulge presumption upon presumption to establish a fact. Seasonable inferences may be drawn from positive or circumstantial evidence, but to allow inferences to be drawn from other inferences, or presumptions to be indulged from other presumptions, would carry the deduction into the realm of speculation and conjecture.”
See also Martin v. Arkansas Power & Light Co., 204 Ark. 41, 161 S. W. 2d 383; 20 Am. Jur. § 165, p. 169.
It is true that since Hunt is a party-defendant his testimony is presumed to be disputed and contradicted. Either rejecting Hunt’s testimony altogether or considering it in the light most favorable to appellee, there is still lacking any substantial evidence to support a verdict in favor of the appellee. In Bennett v. Wood, (CA 8) 271 F 2d 349, the court said:
“The rejection of Bennett’s testimony relating to the facts surrounding the accident does not aid the plaintiff in establishing her case. The burden is upon the plaintiff to prove negligence which proximately caused the injuries claimed. Defendants do not have the burden of proving freedom from negligence. Glidewell v. Arkhola Sand & Gravel Co., supra, 208 S. W. 2d at page 8; Kisor v. Tulsa Rendering Co., DCWD Ark., 113 F. Supp. 10, 16.”
Assuming we found sufficient evidence of negligence to constitute a jury question in this case, even then the verdict in favor of the plaintiff-appellee could not be permitted to stand. The appellee had the burden of proof to establish not only negligence on the part of the defendants-appellants, but also that such negligence was a proximate cause of Mrs. Smith’s death. In Kapp v. Sullivan, supra, we said:
“ * * * Negligence alone is not sufficient. It must be established that such negligence was a proximate cause of the damages suffered.”
Hunt described the collision between the Spurlock and Palmer cars as a “splattering impact,” somewhat like dropping an egg on the floor, resulting in it splattering and breaking into several pieces. The condition of Mrs. Smith’s body was such that it appears her death was instantaneous. The oncoming vehicle, whether driven by Spurlock or Palmer, was traveling at a high rate of speed when it collided with the other passenger car [either Spurlock’s or Palmer’s] which latter vehicle Hunt estimated to be traveling at approximately 40 miles per hour. Thus, the two vehicles collided at a combined speed which produced the described splattering result. According to Hunt he was approximately 100 feet behind the first impact and the two cars spun clockwise and collided with him after he had traveled about one-half the distance to the first collision.
According to the evidence in this case it is only by conjecture and speculation that it can be said in which direction the Spurlock and Palmer vehicles were proceeding at the time of the accident. Apparently the jury could not or refused to so find. It is only by conjecture or speculation that a jury could determine why the oncoming vehicle approaching at a high rate of speed swerved across the road and collided with the vehicle preceding Hunt; that this “splattering” impact did or did not instantly cause Mrs. Smith’s death; that Mrs. Smith was or was not propelled from the vehicle in which she was a passenger at the time of this impact; that Mrs. Smith was or was not in the wreckage when it collided with Hunt’s vehicle; that she was or was not dead when this impact occurred; that Hunt was negligent in any manner or that any negligence of his was a proximate cause for the damages sought herein.
"We do not mean to say that a disinterested or non-party eyewitness is necessary. Physical facts can supply the required evidence. However, in this case the physical facts are in such hopeless conflict that they lead only to conjecture and speculation. Verdicts cannot stand on such evidence.
We stated the rule in Turner v. Hot Springs Street Ry. Co.. 189 Ark. 894, 75 S. W. 2d 675:
“ * * * juries are not permitted to guess or speculate as to the proximate cause of an alleged injury, the burden resting upon [plaintiff] to show by a preponder anee of the evidence that her injuries were caused by some negligent act or omission of [defendant].”
See also Bennett v. Wood, supra.
The burden was on the plaintiff to prove not only the appellants were negligent, but such negligence was a proximate cause of the damages suffered. This causal connection cannot be proved by conjecture and speculation. This proximate cause must be proved by direct or circumstantial evidence as a fact. In this case there are insufficient proven facts, connected and related to each other, from which it can be reasonably inferred that any negligence on the part of appellants was a proximate cause of the accident.
It is our opinion that there was no substantial evidence of negligence or proximate causation to make a question for the jury. Therefore, we must reverse this judgment and dismiss this case. It is so ordered.
Johnson, J., dissents. | [
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JOHNSON, Judge,
delivered the opinion of the court.
The proceedings in this case appear to-have had their origin before John R. Dye, a justice of the peace for Phillips county. The transcript of his record is in the following-words: “Territory of Arkansas, County of Phillips. Cache Township, October 29, 1828. T. Camp ordered summons against C. H. Price, for twenty bushels of corn. Summons issued against Christopher H. Price, to appear before me on the 8th day of November, 1S28. The constable of Cache township returned the within-named summons, executed by leaving a copy of the original at the house of Benjamin Pyburn. This being the 8th day of November, 1828. The plaintiff, T. Camp, acting agent of Ashburn Early, and judgment entered against C. H. Price for $11.07 /4 cents by default. Given under my hand and seal this eighth day of November, 1S2S. J. B. Dye, a Justice of the Peace.”
The money not having been collected, subsequent proceedings were had in the following words: “Territory of Arkansas, County of Monroe. A transcript of judgment being placed in my hands from the docket of John B. Dye for collection, and it appearing that said judgment was not satisfied, T. A. Camp ordered a summons for C. H. Price, to appear before me, a justice of the peace, to show cause, if any he had, why execution should not be issued against him, ordering him to appear before me on the 29th day of May, 1830. No cause being shown why execution should not issue against him, execution issued 29th day of May, 1S30, for $10.11 cents and $7.77 cents costs on the revival of the judgment. John C. Montgomery, J. P.”
To reverse these proceedings, the defendant Price, on the 16th of June, 1830, sued out a writ of certiorari from the circuit court of Monroe, and on the trial of the certiorari at the May term, 1831, the proceedings of the justice were set aside, and the case dismissed, with costs; and to reverse the judgment of the circuit court this writ of error is prosecuted. The only error assigned is that the court below erred in not quashing and dismissing the writ of certiorari on the motion of Camp, for the reasons stated in the bill of exceptions. In looking into the transcript of Mr. Justice Dye, it is manifest that it contains nothing in the shape or form of a judgment. It contains the assertion or affirmation that he gave a judgment against the defendant by default for a specific sum, but does not give a copy of that judgment. He fails also to give a copy of the process by which the defendant was summoned to appear before him, or a copy of the return or the officer serving the process, and from the statement which he does give it does not appear that the summons was legally served. This record, when placed in the hands of Mr. Justice Montgomery, was not sufficient to authorize him to award execution against the defendant Price, and in making that award, and in issuing execution, he unquestionably erred. The certiorari from the circuit court issued within thirty days from the trial before Justice Montgomery, and as we regard the previous proceedings as a nullity, there never having been a judgment rendered, we think the defendant had a right to sue out a certiorari to reverse the revival of the judgment and the award of execution made by Justice Montgomery. Judgment affirmed. | [
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Jim Johnson, Associate Justice.
This case involves the Arkansas guest statutes, Ark. Stats. §§ 75-913 - 75-915. The action was instituted by appellees DeWitt Vaught and Georgia Vaught, his wife, against appellant Lucy Spence for damages resulting from an automobile accident occurring on February 11, 1962. Appellant and appellee Mrs. Vaught had attended Sunday School and church at Houston, Arkansas, although they lived in Perryville. Mrs. Vaught had gone to Houston with her daughter, who left early. Mrs. Vaught asked appellant, who is Mr. Vaught’s aunt, for a ride back to Perryville. About two miles out of Houston the automobile veered to the right off the road and into a ditch. The automobile turned over, injuring appellee severely.
Trial of the case before a jury resulted in a verdict in favor of appellees. For reversal of the judgment on the verdict, appellant contends that there is no evidence of wilful and wanton misconduct on the part of the appellant and a verdict for the appelant should have been directed by the trial court.
The Arkansas guest statute referred to above, Ark. Stats. § 75-913, reads as follows:
‘ ‘ No person transported as a guest in any automotive vehicle upon the public highways or in aircraft being-flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle or aircraft unless such vehicle or aircraft was wilfully and wantonly operated in disregard of the rights of others.”
The operative portion of § 75-915 is as follows:
“No person transported or proposed to be transported by the owner or operator of a motor vehicle as a guest, without payment for such transportation, nor the husband, widow, executors, administrators or next of kin of such person, shall have a cause of action for damages against such owner or operator, or other persons responsible for the operation of such car, for personal injury, including death resulting therefrom, by persons while in, entering, or leaving such motor vehicle, unless such injury shall have been caused by the wilful misconduct of such owner or operator. ’ ’
Each personal injury ease involving the guest statutes must be examined on its own. As we said in Harkrider v. Cox, 230 Ark. 155, 321, S. W. 2d 226.
“ [I] t is a question in each case whether the particular facts therein made a jury question as to wilful and wanton negligence.
. . . “In McAllister, Administrator v. Calhoun, 212 Ark. 17, 205 S. W. 2d 40, we quoted with approval from Splawn, Administratrix v. Wright, 198 Ark. 197, 128 S. W. 2d 248: ‘Whether an automobile is being operated in such a manner as to amount to wanton and wilful conduct in disregard of the rights of others must be determined by the facts and circumstances of each individual case.’ ”
The evidence presented in the case at bar is, naturally, controverted. According to Mrs. Vaught’s testimony, the car had begun to make a singing noise, then a grinding noise, and then a swerve lasting over some period of time, with Mrs. Vaught making warnings to appellant to slow down to see what the trouble was, and with appellant ignoring her warnings. According to appellant, the accident happened very quickly, with there being a sudden swerve and the car veering into the ditch, and at no time were there any warnings from Mrs. Vaught. Appellee Vaught and another witness testified that there was a rim cut on the highway and rubber marks about 3/10ths of a mile or more long leading up to the rim cut. Appellant’s husband testified to a gouge or cut in the highway made by a tire rim about 15 to 20 feet from where the car ended up, but would swear to no other marks. Mrs. Vaught testified appellant was driving 50 to 60 miles per hour and did not slow up. Appellant testified that her speed was 45 to 50, that the accident was instantaneous and that she never could find the tire or wheel marks.
Appellant moved for a directed verdict at the close of appellees’ testimony, which was overruled. The criterion for trial courts in considering motions for directed verdicts is well-stated in Smith v. McEachin, 186 Ark. 1132, 57 S. W. 2d 1043:
“ It is a rule of universal application that, where the testimony is undisputed and from it all reasonable minds must draw the same conclusion of fact, it is the duty of the court to declare as a matter of law the conclusion to be reached; but, where there is any substantial evidence to support the verdict, the question must be submitted to the jury. In testing whether or not there is any substantial evidence in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is directed, and if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict. ’ ’
Examining the record to determine “the state of the evidence”, it is relevant to review the types of negligence and their standards for determination. Negligence is the failure to use ordinary care. Johnson v. Coleman, 179 Ark. 1087, 20 S. W. 2d 186. Gross negligence is the failure to use even slight care. Memphis & L. R. R. R. v. Sanders, 43 Ark. 225. Wilful negligence is the same as gross negligence with the added factor that the actor knows, or the situation is so extremely dangerous that he should know, that his act or failure to act will probably cause harm. Scott y. Shairrick, 225 Ark. 59, 279 S. W. 2d 39.
Applying these standards to the situation as testified to by appellee, it is not illogical to conclude that appellant was negligent when she failed to slow down after the car started humming; she was grossly negligent when she failed to slow down after the car began swerving; and she was wilfully or wantonly negligent in failing to slow down after the grinding noise started, the car swerved more violently, she was twice warned to slow down, and she still continued to drive at the same speed of about fifty miles per hour. Viewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party against whom the directed verdict was sought, we find that fair-minded men might draw different conclusions therefrom, and that therefore the trial court did not err in failing to direct a verdict for appellant.
Appellant’s remaining point urged for reversal is that the giving of plaintiffs’ (appellees’) instruction No. 5 constituted prejudicial error.
Plaintiffs’ requested instruction No. 5 reads as follows :
‘£ The plaintiffs have alleged that the defendant was negligent in one or more of the following respects:
(2) failing to keep her vehicle under proper control and
(3) in operating the automobile at a speed in excess of that which was reasonable and prudent under the circumstances then existing.
“You are instructed that under the laws of the State of Arkansas it was the duty of the defendant, Lucy Spence, to exercise ordinary care in the operation of her vehicle to avoid injury to others, and that a failure on her part to exercise such care would be evidence of negligence. Ordinary care requires every person who operates a motor vehicle upon a public highway to keep his or her vehicle under such control as will enable him or her to check its speed, or to stop it absolutely, if necessary to avoid injury where danger is apparent or reasonably to be anticipated by the exercise of ordinary care. Further, it was the duty of the defendant to exercise ordinary care to operate her vehicle at a speed no greater than was reasonable and prudent under the circumstances, and that a failure to do so would be evidence of negligence.
“You are further instructed in that connection that the lawful maximum speed at which the defendant’s vehicle might have been operated at the time and place of the accident here involved was that speed which was reasonable and prudent under the circumstances, but not to exceed 60 miles per hour in any event, and should you find that defendant’s vehicle was being operated at the time and place of the accident here involved at a speed which was not reasonable and prudent under the circumstances this would be evidence of negligence to be considered along with other circumstances in the ease.”
Appellant forceably contends that the giving of this instruction was error because it refers to the duty to exercise ordinary care, and, this being a guest statute case, this instruction could only lead to the confusion of the jury and probably caused the jury to conclude that appellant was under a duty to exercise ordinary care rather than under a duty to avoid being guilty of wilful and wanton misconduct.
A careful review of the record reveals that not only was wilful and wanton negligence or misconduct defined or required in plaintiffs’ instructions No. 1, No. 3, No. 9 and No. 11, but also in plaintiffs’ instruction No. 6, given immediately after the alleged erroneous instruction. Instruction No. 6 reads as follows :
“Now should you find from a preponderance of the evidence that the defendant, Lucy Spence, was guilty of negligence in one or more of the respects alleged by the plaintiff, as just related to you, this negligence, without more, would not entitle the plaintiffs to maintain this action, or to recover their damages, if any. As you have previously been instructed, to recover in this action, if at all, plaintiffs must prove by a preponderance of the evidence that the defendant was guilty of wilful and wanton conduct. They must prove not only that the defendant was negligent, but also that she knew, or had reason to believe, that her act of negligence was about to inflict injury, and that she continued in this course of conduct with a conscious indifference to the consequences thereof, exhibiting a wanton disregard of the rights and safety of others.”
When all the instructions are thus considered, we cannot say that they incorrectly presented the law, or that the jury could have been misled thereby. Pinkerton v. Davis, 212 Ark. 706, 207 S. W. 2d 742.
Affirmed.
Harris, C. J., and George Rose Smith, J., dissent. | [
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Frank Holt, Associate Justice.
The appellant, Arkansas State Highway Commission, brought this action in an eminent domain proceeding against Rufus Webster and Pearl Webster, appellees, for the acquisition of a fee simple title to .12 of an acre of their land for the use and purpose of widening an existing hard-surface highway. This land was part of a tract of 1.58 acres owned by the appellees. Upon a jury trial the verdict resulted in favor of the appellees and their damages were assessed in the sum of $2,250.00.
On appeal, the appellant contends that the trial court committed reversible error in admitting into evidence the landowner’s exhibit No. 3 which is a photograph. The picture represents a view of the Webster and adjoining-property before completion of the construction or widening- of the highway. It depicts the flooded condition of the newly graded ditch following a heavy rain. Mr. Webster testified that the water almost covered his driveway. There were other pictures in evidence of a different nature depicting various views of the property before and after the taking thereof which tended to aid the jury.
From the testimony surrounding the introduction of this picture we think it is clear that the jury understood, as reasonable men certainly would understand, the evidentiary value of this questioned picture when considered along with the other pictures introduced in evidence. We think the admissibility of this photograph, under the facts in this case, comes well within the sound discretion of the trial court. We have consistently said :
‘ ‘ * * * The admission, relevancy and materiality of photographs as evidence is left to the discretion of the trial judge and, unless that discretion has been abused, his ruling will not be disturbed. ’ ’
McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566. See, also, Lee v. Crittenden County, 216 Ark. 480, 226 S. W. 2d 79. There was no abuse of discretion by the court in the instant case in admitting this photograph into evidence. Also, it was sufficiently accurate to be of some aid and value to the jury on the issue before them. There is no proof in this case that this particular picture was misleading to the jury and, therefore, prejudicial to the appellant. Southern National Insurance Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487.
The appellant further contends that the landowner’s witness, D. L. Buffington, did not know the width of the old right-of-way and did not take into consideration the construction of the new highway in arriving at the landowner’s damages. From a review of Mr. Buffington’s testimony we think that he was sufficiently knowledgeable of those factors in determining Ms estimate of the landowner’s damages.
Next, the appellant complains that its witness, Curtis Hutchins, was not permitted to testify fully about the distance from the proposed right-of-way line to the outer limits of the construction as reflected by a sketch map. From a study of the record in this case we find that upon the introduction into evidence of this sketch map as an exhibit to Mr. Hutchins’ testimony the following occurred :
‘ ‘ Q. What are the construction limits on these particular plans?
A. The construction limits of Mr. and Mrs. Webster’s property, the construction will lack roughly from 10 to 12 foot going out to the present right-of-way line before the additional taking of the 13 feet. In other words, we will have the additional taking and another roughly 12 feet between the present right-of-way line and the construction line. ’ ’
In view of this testimony we are of the opinion that this point is not well taken.
Appellant next contends the court should have given its requested Instruction as to the measure of damages. Appellant argues that the true measure of damages, as reflected in the requested instruction, is the difference between the value of the land before the construction and the value after construction of the highway. The court instructed the jury that the measure of damages would be the difference between the fair market value of the entire tract of land before the taking and the fair market value of the remaining land after the taking for highway purposes. We have consistently approved the rule that the measure of damages is the difference between the fair market value of the affected lands before and after the taking of the landowner’s property. In Board of Directors, St. Francis Levee Dist. v. Morledge, 231 Ark. 815, 332 S. W. 2d 822, we said:
“By a long line of decisions we have established that the determination of the damage, in cases like these, is to‘ be measured by what the property was reasonably worth before the taking, and what the remainder of the property is worth after the taking.”
See, also, Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706; Arkansas State Highway Comm. v. Fox, 230 Ark. 287, 322 S. W. 2d 81.
We have also said that the measure of damages is the value of the land before the construction and after the construction of a road. Herndon v. Pulaski County, 196 Ark. 284, 117 S. W. 2d 1051. In the particular case before us, we think the same result would be reached by applying either method in determining the damages. We find no prejudice to appellant’s rights by the refusal of the requested instruction.
The appellant also contends there is no substantial evidence to support the verdict of the jury. Whether there exists substantial evidence to support a jury verdict is a question of law. Arkansas State Highway Commission v. Covert, 232 Ark. 463, 338 S. W. 2d 196. The Websters, the landowners, testified that they purchased this property in 1956 for the sum of $4,950.00; that in March of 1960 they moved upon the property; that before the taking by appellant in May, 1961, they made sufficient repairs for the dwelling to be liveable and they restored an existing building adequately to conduct therein a profitable cafe and tavern business. They testified that as a result of appellant’s taking a 13 foot strip across the front of their property abutting upon the existing highway, the parking area for customers would be reduced from a space for twenty (20) cars to ten (10) cars, or a fifty per cent reduction. They testified that before the taking their property was worth $10,000.00 and after the taking, $5,000.00. Thus, they estimated their damages to be the sum of $5,000.00.
Mr. Buffington, a real estate dealer and appraiser in that locality, testified for appellees that the property was worth $8,600.00 before the taking and $6,000.00 after the taking. Consequently, the appellees had been damaged in the sum of $2,600.00. Mr. James Parish, another local realtor and appraiser, testified for appellees that before the taking he placed a value of $8,500.00 on appellees’ property and after the taking a value of $5,500.00, making a difference of $3,000.00 in the fair market value. Mr. Curtis Hutchins, a staff appraiser for the appellant, testified that before the taking he considered the property to be worth $5,600.00 and after the taking to be of the value of $5,225.00. Therefore, in his opinion the land owner’s damage would be $375.00. Mr. Wesley Adams, an appraiser for appellant, testified that the value before the taking was $6,025.00 and after the taking the value was $5,625.00. Thus, the damage to the appellees’ property was $400.00. From these several witnesses we have the variance from $5,000.00 to $375.00 as the damages to appellees’ property.
We have consistently held that in determining the sufficiency of the evidence to support a verdict we must view the evidence, with every reasonable inference arising therefrom, in a light most favorable to the appellee and if there is any substantial evidence to support the verdict rendered by the jury, the triers of the facts, we will not disturb it on an appeal. Arkansas State Highway Comm. v. Addy, 231 Ark. 381, 329 S. W. 2d 535; Arkansas State Highway Comm. v. Covert, supra.
We view the evidence in this ease to be sufficiently substantial to support the jury verdict of the award of damages. Therefore, we affirm. | [
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Ed. F. McFaddin, Associate Justice.
We are here asked to determine whether the indorsement in question was an unqualified indorsement under the Uniform Negotiable Instruments Law.
In 1954 Lloyd P. Cox and wife executed their note, which in due time was owned by appellee, W. S. Anderson ; and he placed on it the following writing:
“State of Arkansas'! County of G-arlandj ss'
“For value received I hereby assign, transfer, set over and convey all of my interest in and to the note on the reverse side hereof together with the security therefor, to CRESWELL-KEITH, INC., AN ARKANSAS CORPORATION, TRUSTEE FOR CRESWELLKEITH MININO TRUST.
“This the 12th day of January, 1957. /s/ W. S. Anderson. ’ ’
Either by change of corporate name, or other procedure, the appellant, Ouachita Industries, Inc., became the owner of the note; and on February 14,1961, filed the present suit against W. S. Anderson seeking to hold Mm liable as an unqualified indorser of the note because of the writing above copied. Anderson filed Ms demurrer, claiming that the said writing was not equivalent to an unqualified indorsement. The Trial Court sustained the demurrer and dismissed the complaint when the plaintiff refused to plead further. On appeal, the appellant urges one point: “Under the Uniform Negotiable Instruments Law, Effective at the Time of the Indorse- meat, the Indorsement as a Matter of Law was an Unqualified Indorsement. ’ ’
The question under consideration turns on whether the holding of this Court in Spencer v. Halpern (1896), 62 Ark. 595, 37 S. W. 711, 36 L.R.A. 120, was changed by the passage of the Uniform Negotiable Instruments Law, which was Act No. 81 of 1913 (see Ark. Stat. Ann. §68-101 et seq. [Kepi. 1957]). In Spencer v. Halpern, there was this indorsement: “For value received I hereby transfer my interest in the within note to Isaac Halpern. (Signed) Geo. Spencer.” When the note was unpaid, Halpern sued Spencer on the indorsement; and Spencer pleaded that he was not liable because the indorsement was restricted. This Court held that by the quoted indorsement Spencer avoided the liability of an unqualified indorser under the law merchant. In the opinion, Justice Wood recognized that, under the law merchant, Spencer would be liable as an indorser unless the language he used was sufficient to restrict his liability; and Justice Wood recognized that Mr. Daniels (in his work on Negotiable Instruments) and many adjudicated cases held that such an indorsement as Spencer made was not sufficient to exempt Spencer from liability as an unqualified indorser. But Justice Wood quoted Tiedeman on Commercial Paper, §265:
“ ‘The declaration that the payee assigns or transfers all Ms right, title and interest in the paper would seem to limit in a most effective way the rights acquired by the transferee to those which the transferrer had therein, and thus prevent the writing from operating as an indorsement.’ ”
Justice Wood then continued;
“Why should we not let the contract mean and have the effect that is plainly expressed by the terms ‘my interest’ in their ordinary acceptation? Had the payee intended to be bound as indorser, why use so many words? Had the transferee expected more than the ‘interest’ of the transferrer, why did he accept the instrument transferring only his ‘interest?’ We must accept and interpret the completed contract as the parties made it. They have seen proper to express it at length, and have used unambiguous terms. Construing the terms ‘my interest’ most strongly against the transferrer, we do not feel authorized to say they mean anything more than simply ‘my interest.’ They are clearly terms of limitation, when used in an indorsement on a negotiable instrument. Compare Reynolds v. Shaver, 59 Ark. 299.”
We find nothing in the Uniform Negotiable Instruments Law that does other than declare what the law merchant had been on this matter of what is a qualified indorsement. Ark. Stat. Ann. §68-138 (Repl. 1957) (being §38 of the UNIL) reads in part: “A qualified indorsement constitutes the indorser a mere assignor of the title to the instrument. It may be made by adding to the indorser’s signature the words ‘without recourse’ or cmy words of similar import.” (Emphasis supplied.) Ark. Stat. Ann. §68-163 (Repl. 1957) (being §63 of the UNIL) says: “A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor, is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.” (Emphasis supplied.) Ark. Stat. Ann. §68-166 (Repl. 1957) (being §66 of the UNIL) says: “Every indorser who indorses without qualification, warrants to all subsequent holders in due course: ...” that payment will be made by him under circumstances stated in the section. (Emphasis supplied.) In Spencer v. Halpern, supra, it was held that an indorsement such as the one here was an indorsement with qualification in that the words had a similar import to “without recourse”; and we fail to see wherein the holding in Spencer v. Halpern was changed by the adoption of the Uniform Negotiable Instruments Law in 1913.
We concede that a majority of the States hold that an indorsement, such as that in Spencer v. Ealpern, and in the case at bar, is not sufficient to constitute a qualified indorsement; but in 8 Am. Jur. p. 254, “Bills and Notes” §546, it is stated that the reasoning in Spencer v. Ealpern is the better reasoning on this point. Here is the language in Am. Jur.; and we have italicized that portion of the text which cites Spencer v. Halpern in support thereof:
“Indorsement in Form of Assignment.—There is a direct conflict of authority upon the question whether one who transfers an instrument by words purporting only an assignment of the paper is to be held bound in accordance with the contract implied by law from an indorsement in blank. The majority of the courts considering the question have taken the view that the liability of an ordinary indorser is imposed upon one who makes an assignment upon the back of a negotiable instrument; such an assignment, according to this view, is not a qualified or a restrictive indorsement. Accordingly, one who writes and signs on the back of a negotiable instrument an assignment thereof is held liable as an indorser to the same extent as if he had merely indorsed his name without any other words. A reason given for this view is that the so-called £ assignor, ’ in expressing the assignment, is merely expressing one part of what the law implies from a general indorsement, and that if the person making the assignment wishes to avoid the liability of such an indorser, he should put that wish into words clearly indicating his intention. The better reasoning, however, would seem to favor the vieio that the person making an assignment in express terms thereby signifies his intention to do nothing more than assume the liability of an assignor or restrictive indorser and that, the assignment should not be held to import the contract of indorsement. In accordance with this view, it has been held that where the holder of commercial paper transfers merely his interest therein, he will not be liable upon the note in case of the maker’s failure to pay at maturity.”
The above quotation in Am. Jur. was published in 1937; and certainly the author of the above quoted text had no idea that the Arkansas holding in Spencer v. Halpern was changed in any way by the 1913 adoption by Arkansas of the UNIL, or else there would not have been the citation of Spencer v. Halpern as supporting “the better reasoned view.”
We therefore conclude that the holding in Spencer v. Halpern is governing in the case at bar; and that the Trial Court was correct in so holding.
Affirmed.
Harris, C. J. and George Eose Smith, J., dissent.
The Uniform Negotiable Instruments Law was adopted in Arkansas by Act 81 of 1913. In 1961 the Arkansas Legislature, by Act No. 185, adopted the Uniform Commercial Code, now contained in Ark. Stat. Ann. §85-1-101 et seq. (Addendum 1961); and that Act provides that the Uniform Commercial Code would become effective in Arkansas at midnight December 31, 1961; but that all transactions validly entered into before the effective date, and all rights, duties, and interests flowing from them, would be governed by the laws prior to the adoption of the Uniform Commercial Code. So the present case is not affected by the Uniform Code: we decide this case under the Uniform Negotiable Instruments Law, hereinafter referred to as “UNIL.”
The learned Chancellor delivered a written opinion, from which we copy:
“The Court further finds that the indorsement should be and is interpreted as a limited indorsement, rather than a general indorsement, in that the indorsement states: ‘ALL OF MY INTEREST IN AND TO THE NOTE ON THE REVERSE SIDE HEREOF, TOGETHER WITH THE SECURITY THEREFOR, . . .’
“The Court further finds that the language as above quoted, under the decision of the Supreme Court of Arkansas as announced in Spencer v. Halpern, 62 Ark. 595 and cited in an opinion not reported, 65 Ark. Page 631, and also as announced in 8 Am. Jur. Sec. 46, does constitute a restrictive indorsement. The Court further finds that although the above cited case of Spencer v. Halpern was decided prior to the adoption by the Arkansas Legislature of the ‘Uniform Negotiable Instruments Law,’ such adoption did not change the law merchant. The text writers and the decisions of the courts of Arkansas seem to give full force to such language in the indorsement as ‘without recourse’ and ‘all my right, title, and interest,’ This principle of restrictive indorsement by the use of such terms as stated was also followed in the case of Bennett v. Semmes, 287 Fed. 745, as decided by Judge Trieber, District Judge, Eastern District of Arkansas. The opinion having been rendered on March 27, 1923, after the passage of the Uniform Negotiable Instruments Law adopted in Arkansas in 1913. It further appears from the authorities submitted to this Court that the sections of the Uniform Negotiable Instruments Law of Arkansas pertaining to restrictive indorsements, and particularly where the same language is used as was in this present indorsement, ‘all my right, title and interest,’ are in effect re-enactments of the well established law of the law merchant.”
In Bennett v. Semmes, 287 F. 745, Judge Trieber, United States District Judge for the Eastern District of Arkansas, said that the UNIL was a re-enactment in that case of what the law merchant had been; and in the case at bar, the UNIL was a re-enactment of what the law merchant was on the question here.
The Supreme Court of Utah, in Johnson v. Beickey, 228 F. 189, clearly stated the distinction between assignment and indorsement:
“ ‘Assignment’ and ‘indorsement,’ as applied to negotiable instruments, are not synonymous terms. An indorsement is not merely a transfer of title, but a new and substantive contract by which the indorser becomes a party to the instrument and liable, on certain conditions, for its payment. An assignment means a transfer of the title. It neither includes nor implies becoming in any way a party to the payment, or responsible for the insolvency or default of the maker.”
Even though the Supreme Court of Utah holds against Spencer v. Halpern, the foregoing discussion of assignment and indorsement is clear and concise.
See annotations in 2 A.L.R. 216, and in 44 A.L.R. 1353. | [
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George Eose Smith, J.
In 1949 Charles and Euby Killgo bought a home in Hot Springs, as tenants by the entirety. In 1954 the couple were divorced by a decree of the Garland Chancery Court. The decree approved a property settlement by which the parties agreed to sell the home later on and divide the proceeds. The property had not been sold, however, when Charles died in October of 1959. His heirs, the appellants, then brought this suit for partition against Charles’s former wife, Euby Killgo Dunn, upon the theory that the property settlement and divorce decree had converted the tenancy by the entirety into a tenancy in common, in which case the plaintiffs would have inherited a half interest in the property upon Charles’s death. The chancellor rejected that theory, holding that the tenancy by the entirety had continued in existence, so that at Charles’s death the title vested by survivorship in Euby Killgo Dunn. Mrs. Dunn died pending this appeal; the cause has been revived against her heirs and personal representative.
The principal issue—whether the estate was changed into a tenancy in common—turns upon the construction of this language in the settlement agreement: “It is understood that the decree to be entered herein is to provide that Charlie C. Killgo is to have possession, use and control of the [home], together with the furniture therein, until such time as the parties to this case may agree on a sales price for such, at which time, on such agreement, the proceeds are first to be used to reimburse Charlie C. Killgo for all monies he has paid or will pay on the mortgage on same after date of August 1953, after which the balance of the proceeds is to be divided between the parties hereto equally.”
The 1954 divorce decree recited the substance of the paragraph just quoted and concluded by declaring that “the property rights settlement between said parties . . . is hereby approved and confirmed in all particulars.” (We should add that at Charles’s death there was pending a suit for partition that Ruby had filed in 1957, in which she charged that Charles had violated the settlement agreement by refusing to consider a sale of the property. We do not dwell upon this earlier case, as we think it had no effect upon the title, either directly or by way of an estoppel.)
The chancellor was right in holding that the agreement and decree did not change the parties’ estate into a tenancy in common. It will be seen upon reflection that the Killgos, like any married couple in the same situation, had a choice of two courses. First, they could, without affecting the nature of their tenancy by the entirety, have simply agreed that they would attempt to sell the land, with the proceeds to be divided equally. In that case the estate by the entirety, with its characteristic right of survivorship, would undoubtedly continue to exist until a sale was accomplished. Secondly, the Killgos, at least by invoking the chancellor’s statutory power over tenancies by the entirety, could have agreed that the estate would immediately become a tenancy in common, thereby utilizing the divorce decree to extinguish the right of survivorship. Ark. Stats. 1947, § 34-1215; Brimson v. Brimson, 227 Ark. 1045, 304 S. W. 2d 935.
We think it plain that the agreement in the case at bar falls in the first category. We cannot find one sentence or even one word, in the agreement or in the decree, to support the conclusion that the parties had an affirmative intention to bring about an immediate termination of the tenancy by the entirety. It is desirable that titles to real property rest in certainty and stability. For a couple to declare that they will sell a piece of property at some future date and divide the proceeds is not even a roundabout way of saying that they will also become tenants in common at once. The language that the Killgos selected, with the advice of counsel, is perfectly consistent with a desire on their part to leave the estate untouched until a sale should be completed. We do not feel justified in rewriting the contract by reading into it an additional clause that the parties chose to leave out.
There is a second point in the case. The appellants asked in their complaint that the property be ordered sold and that the proceeds be applied first, in accordance with the property settlement agreement, to recompense the plaintiffs for mortgage payments totaling $1,640 that were made by Charles Killgo after August of 1953, with the remaining proceeds to be divided equally between the opposing litigants. Even though we are'holding that the tenancy by the entirety continued in force, there is still the question whether the appellants are entitled to assert a charge against the property for the mortgage payments that are involved.
A majority of the court have concluded, although not upon the same reasoning, that the appellants are entitled to charge the property with the mortgage payments. Justices Ward, Robinson, and Johnson are of the opinion that the tenancy by the entirety was converted into a tenancy in common, in which case the mortgage payments are recoverable as a matter of course under the settlement agreement. Justice McPaddin joins in the majority opinion with respect to the tenancy by the entirety but, for the reasons stated in his concurring opinion, is of the view that the mortgage payments are recoverable. The Chief Justice, Justice Prank Holt, and the writer would affirm the decree.
The decree is accordingly affirmed in part and reversed in part, and the cause is remanded for further proceedings.
MoP addin, J., concurs; Ward and Johnson, JJ., dissent. | [
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Paul Ward, Associate Justice.
This litigation stems from the consolidation of two school districts in Sharp County. Presently set out is a summary statement of the pertinent facts involved.
On December 4, 1962 the electors of Hardy School District No. 38 and Ash Flat School District No. 4 approved (by a vote of more than four to one) the consolidation of said school districts into one district to be known as Highland School District No. 42. This proceeding was had under Act 125 of 1961, being Ark. Stats. §§ 80-446 et seq. The ballots used in both districts were identical except that the ballots for each district were designated by its appropriate name.
The ballots contained two proposals to be voted upon. One, consolidation, stating that the new consolidated school facilities would be located upon the “Moody, Pogue and Wiles property,” upon which “options have been secured”; Two, submission of a 41 mill school tax including
. (a) 25 mills for the maintenance and operation of schools; and (b) 16 mills of this tax is to be collected annually and will constitute a continuing annual levy until the payment in full of the principal and interest of a proposed bond issue of $264,125, which will run approximately 22 years and will be issued for the purpose of erecting and equipping new school buildings, making improvements and additions to existing school facilities, acquiring a site, and refunding $14,113 in outstanding school indebtedness.”
Following proper certification of the election, the directors of the two districts met and proceeded to operate as one board for the new district, as is provided in the Act. It proceeded to advertise and sell school bonds in the amount of $264,125. Delivery of the bonds was held up pending our decision on certain objections arising out of the entire, proceedings. According to appellant’s statement on appeal, the principal objection raised was that the directors of District No. 42 decided to locate the school facilities on property other than the Moody, Pogue and Wiles property. This point, along with four others, is relied on by appellant for a reversal of the trial court which approved the consolidation proceedings, the issuance of the bonds, and the substituted site for the school facilities.
The matter reaches this Court in the following manner. S. C. Bates, appellant, (representing property owners in the two districts) filed suit in chancery court against the directors of the consolidated district to force them to select the site mentioned in the ballot (Moody, Pogue and Wiles property); and also to invalidate (for reasons later discussed) the entire consolidation proceedings.
One. We find no merit in appellant’s argument that “the question on consolidation . . . was not submitted in the form designated” by Section 4 of said Act 125 of 1961. We have carefully examined the form of ballot used here and find that it is substantially in conformity with the requirements of said section. In fact both are alike as to form and it would serve no useful purpose to set them out for comparison.
In this same connection appellant especially urges that the ballot used was fatally defective because it gave the voter no opportunity to vote for consolidation and against the designated site or vice versa. We can understand how, under some circumstances an objection of this type might have merit, but not so in this case. In the first place, as shown by the ballots, the proposed site had not actually been secured. In other words, the selection of a site rested finally within the power and discretion of the directors where this Court has said it rests. See: Johnson v. Robbins, 223 Ark. 150, 264 S. W. 2d 640. As will be made apparent later, the change of sites could not have prejudiced the voters in any material way.
Also it is argued that the ballot is fatally defective because it violates Amendment No. 40 to the Constitution. This amendment, in pertinent part, provides that the directors of each district shall prepare and make public sixty days in advance of the annual school election a proposed budget and fix the rate of tax levy. It is pointed out by appellant that this could not have been done in this instance because District No. 42 was not in existence sixty days before the annual election held on December 4, 1962. We see no merit in this argument for the following reasons. Since this case is not a direct attack on the manner in which the election was held, we must assume that it was in all respects in compliance with the law and that every prerequisite was met. Therefore, we can assume the directors in the two original districts complied with the law — including Amendment No. 40. Section 7 of said act provides that the new district succeeds “to all the rights and property of the districts consolidated”, etc. Appellant does not, and cannot successfully, deny the districts had a legal right to consolidate and to vote the necessary millage to operate and construct the buildings. We know of no legal inhibition against the old districts doing in one election what they might have done in two elections. This was a regular school election, therefore the voters could have voted against consolidation and against the increased tax rate and still (under Amendment No. 40) the old rate would have been in effect in each old district.
Two. Appellant here states that “The court erred in finding that the consolidation was valid, ’ ’ relying on his argument presented under point ‘£ One ’ ’ above, which we have already rejected. It is our opinion that the procedure set out in Act 125 of 1961 was correctly followed in this case.
Three. It is next contended that the act does not authorize submitting, on the same ballot, the question of consolidation and also the question of issuing bonds based on a tax levy. In view of what we have already said we deem it unnessary to discuss this point further than to say the contention is technical and deals with form rather than substance.
Four. We find no merit in appellant’s further argument that said act is invalid because it is in violation of Amendment No. 40 to the Constitution, which provides that tax money voted by a school district shall not be used for any other purpose (than school purposes) or by any other district. As to the purpose for which the money involved here will be used, there is no question or dispute — it will be used for school purposes. Also, for all intents and purposes, the tax money in this instance was voted by and will be used in the same district — District No. 42. Also, the question here raised was decided adversely to appellant by the decision in Bonner v. Snipes, 103 Ark. 298, 147 S. W. 56.
Five. We come now to the final point and the one upon which appellant presumably relies most heavily for a reversal.
As before stated, the ballot on the consolidation proposal contained these words — “. . . with the new school plant to be located on the Moody, Pogue and Wiles property, upon which options have been secured.” It is the contention of appellant that when the majority voted affirmatively on the above ballot it, ipso facto, created a binding obligation on the directors of the new district to place the school facilities on that property and nowhere else. The logical conclusion of that contention would be that the entire project would have to fail if the designated site could not, for any reason, be secured. We are not convinced by that line of reasoning, nor do we find that any statute or court decision of this State binds or impels us to adopt it. To support appellant’s position reliance is placed on certain language found in the case of Matthews v. Rural High School District No. 5 of Johnson County, 120 Kan. 347, 242 P. 1016. The language, in effect, is that an affirmative vote on the proposition of issuing bonds to erect a school building is a sufficiently definite and valid designation of the site. Neither the facts nor the opinion in the above cited case lend any support to appellant’s argument. In that case two elections were held. One authorized consolidation and designated the “location at Spring Hill.” The next year the directors purchased twenty acres of land “in and adjoining Spring Hill, ’ ’ and paid $7,000 for it. Four years later the voters authorized bonds to erect a school house “on the land owned by the district adjoining the city of Spring Hill.” After the directors had started construction on that site, Matthews (as a taxpayer) tried to enjoin construction on that particular site. The trial court merely refused the injunction, and the Supreme Court properly affirmed. The issue presented here was not raised or discussed in the cited case.
We have concluded the trial court was fully justified in approving the site (other than the one designated) upon which to erect school facilities. The situation and facts supporting that conclusion are, in essence, as follows: (a) The directors were unable (because one of the landowners declined to honor his agreement) to secure the designated site; (b) The optioned site would have cost around $6,000; (c) The new site was donated to the district, and was suitable for all purposes; and, (d) The new site was adjacent to the designated site and both sites abut U. S. Highway No. 62.
Under the above set of facts we cannot believe that any elector, who voted for consolidation because of the designated site, would have voted against consolidation had he known the change would be made in site locations. In other words, we think the difference between the sites was too insignificant to affect the electors’ vote, or to justify a reversal.
Affirmed. | [
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Paul Ward, Associate Justice.
Appellant, M. L. Criner, was charged in a two count indictment with having forged the name of ‘‘ Sam Simmons ” on a check drawn on The Farmers ’ Soybean Corporation of Blythe-ville and with uttering the same, all with the intent to defraud said corporation out of its money and property. After a lengthy trial the jury found appellant guilty on both counts. The court fixed the punishment at six years on each count and pronounced judgment accordingly with tlie terms to run concurrently. From said judgment appellant now prosecutes this appeal, asking a reversal on four separate grounds hereafter discussed.
Since appellant does not question the sufficiency of the evidence to sustain the verdicts, we deem it sufficient for this opinion to make only such a summary abstract of the testimony as is necessary to an understanding of the issues. Appellant was an employee and also the assistant manager of said corporation which buys and stores soybeans, wheat and other grains raised in that vicinity. He had authority to weigh grain purchased for the company and to issue checks to the sellers. Apparently the theory of the prosecution was that appellant would “buy” grain from a fictitious seller, sign a check to the “seller”, forge the name of the fictitious payee on the back of the check, and then cash the check and keep the money. Treating the testimony in the light most favorable to sustain the convictions, we find substantial evidence to support the jury in finding: Appellant signed a company check in the amount of $529.90, dated October 19,1960, payable to ‘ ‘ Sam Simmons ’ ’; The name of the payee represented a fictitious person; Appellant wrote the name “Sam Simmons” on the back of the check; Appellant then presented the check to a teller in the First National Bank in Blytheville, received the amount of money above mentioned, and kept same.
One. The first point urged by appellant is: “The court erred in refusing to allow appellant to take the deposition of Bud Neal, a non-resident witness.” At the prior term of court appellant had been tried and acquitted of a charge similar to this one, and Bud Neal (a resident of Missouri) was present as a witness. The trial in the case on appeal was set for (Thursday) April 5, 1962. On the day before (April 4) appellant filed a motion for continuance until the next term of court in order to take the deposition of Neal as a material witness. In the motion it is stated that Neal would not come voluntarily to testify but was ready to give his deposition. The required affidavit was attached, and due diligence was alleged. The trial court denied the motion, and no error based on the denial is now urged.
Appellant’s motion for a continuance (above mentioned) was denied on Wednesday, April 4,1962. The trial began the following morning (Thursday) and continued until 4 p.m. on Friday (the next day) at which time the State rested its case, and court recessed until the following Monday morning, April 9. At 7:30 a.m. Saturday (April 7) appellant filed an affidavit in compliance with Ark. Stats. § 43-2011 and requested the presiding judge to give him permission to take the deposition of Neal. The judge refused to grant the request at that time, but did give appellant a hearing on the following Monday after the trial had been resumed. At that time the trial judge denied the request on the ground that the application “. . . was not made at the proper time and with due diligence.”
We think the trial court was correct in denying appellant’s application to take the deposition of Neal, a non-resident, considering the applicable law and the facts of this case. In the case of Jones v. State, 205 Ark. 806, 171 S. W. 2d 298, we had occasion to interpret §§ 3946-49 of Pope’s Digest which is the same as § 43-2011 relied on by appellant, and we held due diligence was a prerequisite on the part of the applicant. Some of the language there used is particularly applicable here.
“The defendant in the case at bar, in filing a motion to take depositions was seeking a continuance by indirection, because the granting of the motion would have gained for him the continuance that had been denied.”
Appellant has no quarrel with the Jones decision, but •does say: “We simply contend that we did exercise diligence on our motion for the taking of the deposition.” We are wholly unable to agree with appellant in the above statement. Not only does the timetable of events preceding the application (as above set out) strongly indicate lack of diligence on the part of appellant, but the record is replete with testimony to the effect that appellant knew or should have known months before the trial that Neal would not be present at the trial to testify in person.
Two. We see no merit in appellant’s argument of former jeopardy and res judicata. It was shown that appellant was tried and acquitted on a similar charge in the same court about five months' previously. In that case appellant was charged with having forged the endorsement of Gr. D. Renfro to a check (drawn on the same corporation as in the present case) and having uttered the same. During that trial several checks drawn on the same company (including the Simmons check) were introduced by the State on the theory that they showed a common plan, scheme and method of operation on the part of appellant. There can be no contention that appellant is now being tried for the. same offense for which he was formerly tried. Obviously it is possible for him to be innocent of forging the Renfro check and still be guilty of forging the Simmons check. In the case of Binganan v. State, 181 Ark. 94, 24 S. W. 2d 969, we said: ‘ ‘ ‘ The test is ... whether he [the defendant] has been put in jeopardy for the same offense.’ ” See also: Johnson v. State, 199 Ark. 196, 133 S. W. 2d 15.
Three. It is here contended that the court erred in allowing a State’s witness, who was not an expert, to express an opinion on the similarity of handwriting. Briefly, the facts and circumstances upon which this contention is based are as follows: John Caudill, a witness for the State, and the secretary of the Soybean Company, was shown a number of questionable checks which had been written on his company by appellant. He stated that appellant had a very distinctive_ signature which made it easy to recognize his handwriting, and that to a layman or ordinary person it was apparent that the same person who had written the face of the checks had endorsed them. It was then objected that the witness was not an expert. The State’s attorney said: “That is correct.” After another objection was made the court looked at the checks and again overruled the objection. We do not think the court committed reversible error in permitting the witness to testify. That the witness was familiar with appellant’s handwriting is shown by his statement that it was distinctive and easily recognized. In 20 Am. Jur. Evi deuce § 837, at page 701, in speaking of “Qualification of Witness ’ ’ we find:
“It is necessary, in order that a lay witness may be qualified to express an opinion upon an issue of the genuineness of a disputed signature or handwriting, that it appear that he have some familiarity with the handwriting of the person in question ... Of course, the opinion of a witness as to the genuineness of a signature, based upon limited opportunities for knowledge of the handwriting of the person whose signature is in question, may have but little probative value, but it is admissible nevertheless. ’ ’
In the case of Walsh v. Fairhead, Executrix, 215 Ark. 218, 219 S. W. 2d 941, we held, in substance, that a non-expert witness may testify as to his opinion after stating the facts upon which the opinion is based. See also Naylor v. Eagle, 227 Ark. 1012, 303 S. W. 2d 239.
Four. Finally, appellant says the court erred in giving Instruction No. 7-A because it was a comment on the evidence. The instruction reads as follows:
“You are to consider and try this case solely and wholly upon the evidence adduced herein and upon the instructions of law given herein, and you are not to consider any reference to any former trial as it is incompetent herein. ’ ’
Appellant objected to the instruction but was overruled by the court. The attorney for appellant, who incidentally did not participate in the trial of the case, makes a strong written and oral argument to show the instruction was prejudicial. However, we are not at liberty to rest our decision on the validity or invalidity of that argument since appellant did not save exceptions to the ruling of the court. In the early case of St. Louis Iron Mountain & Southern Ry. Co. v. Raines, 90 Ark. 482, 119 S. W. 266, this Court, in dealing with a similar situation, said:
“But the appellant is in no attitude to complain of the action of the court in refusing to do this; for it did not save any exception to the ruling of the court on that point. To render an assignment of error available on appeal, an exception must not only be saved at the trial to the ruling of the court, but the exception must be preserved in the motion for a new trial. ’ ’
This rule has been consistently followed or approved. Act 555 of 1953 changed the rule as it applies to civil cases but not as to criminal cases. See Cotton v. Ingram, 114 Ark. 300, 169 S. W. 967; Harvey et al v. Kirk, (Ark.) 168 S. W. 2d 827; Wiley v. State, 234 Ark. 1006, 356 S. W. 2d 240; and Carnal v. State, 234 Ark. 1050, 356 S. W. 2d 651.
Affirmed.
Bobinson and Johnson, JJ., dissent.
Holt. J., disqualifies. | [
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Sam Robinson, Associate Justice.
On June 14, 1962, appellees, Earl T. Braun and his wife, Marie, filed this suit against appellant, Joe Ferri, alleging damages to Earl in the amount of $3,500.00, and damages to Marie in the sum of $9,900.00, growing out of an automobile collision. Appellant, Ferri, failed to answer within the prescribed time, and on August 6, 1962, the Brauns were awarded judgment for the total amount asked in the complaint.
On September 1,1962, within the proper time, Ferri filed notice of appeal. He also filed a designation of the record on appeal, designating the entire record filed with the Clerk, and a narrative statement as follows: "On the 9th day of July 1962 this cause was called on the docket by the Honorable Gr. B. Colvin, Jr., Circuit Judge, Chicot County, Arkansas, and noted that the defendant, Joe Ferri, had not filed Answer herein. The Sheriff of Chicot County, John H. Biggs, thereupon called to the bar of this Court, the defendant, Joe Ferri, three times to appear, and who appeared not, and thereupon Avithout any testimony being presented, rendered judgment as prayed in the complaint filed by the plaintiffs, Earl T. Braun and Marie R. Braun. There was no testimony presented by the plaintiffs herein, nor any witnesses in behalf of plaintiffs.” Ark. Stats. 27-2127.4 provides: "A party may prepare and file Avith his designation a condensed statement in narrative form of all or- part of the testimony, and any other party to the appeal, if dissatisfied with the narartive statement, may require testimony in question and answer form to be submitted for all or part thereof.”
The judgment provides, inter alia, that evidence was adduced by the plaintiffs and that there was proof that Earl T. Braun had been damaged in the sum of $3,500.00, and proof that Marie R. Braun had been damaged in the sum of $9,900.00. The judgment was for the respective parties in the sums mentioned.
There must be evidence to support an award of damages in a default judgment. Greer v. Newbill, 89 Ark. 509, 117 S. W. 531; Greer v. Strozier, 90 Ark. 158, 118 S. W. 400. Here, the judgment recites that there was proof of damages. In the narrative statement appellant says: “There was no testimony presented by plaintiffs herein, nor any witnesses in behalf of plaintiffs.” The real question is whether the parties are bound by the recitation in the judgment that there was proof of damages, or can appellant show, in the manner attempted here, that there is no substantial evidence to sustain the judgment.
Although the defendant, appellant, failed to file an answer, he had the right to cross-examine witnesses giving testimony as to damages and he had the right to introduce testimony in mitigation of damages. In other words, he had the right to contest the element of damages ; it necessarily follows that he has the right to question on appeal the sufficiency of the evidence to support the amount of damages awarded. In Clark v. Collins, 213 Ark. 386, 210 S. W. 2d 505, the court said: “In the early cases of Thompson v. Haislip, 14 Ark. 220, and Mizzell, et al. v. McDonald, et al., 25 Ark. 38, this court laid down the rule that in a hearing to determine the amount of damages after default, a defendant has a right to cross-examine the plaintiff’s witnesses and to introduce evidence in mitigation of damages. In the last case cited Chief Justice Walker, speaking for the court, said: As regards the first question, the defendants, by failing to plead in bar, confessed the plaintiffs’ right to recover damages, but not the amount of damages claimed in the declaration; because, if such is the effect of a judgment by default, then there would be no necessity for calling a jury to inquire of damages, and judgment would, without the intervention of a jury, be rendered for the amount of damages set forth in the plaintiff’s declaration. It must therefore follow, that although the assumpsit to pay for the goods, averred to have been sold and delivered is admitted by the default, and no longer an open question for contest, such is not the case as regards the amount of damages to be recovered. In the case of Thompson v. Haislip, 14 Ark. 220, this court recognized this rule, and held that upon a writ of inquiry of damages, the defendant had a right to cross-examine a wit ness introduced by the plaintiff, and that it was error to refuse such, permission. And we think that, upon principle, the decision in that case is alike applicable to this. The open question before the jury was as to the amount of the damages to be assessed, and if the defendant be permitted (as we have held he should be) to cross-examine a witness introduced by the plaintiff, for the purpose of reducing the amount of damages, we think, for the same reason and upon principle, he should be permitted to introduce evidence for the purpose.’ ”
In his narrative statement of the evidence, served on counsel for appellee along with the notice of appeal, appellant says there was no evidence of damages. This was just another way of saying there was no substantial evidence to support the judgment. In these circumstances, the appellee had the right to require that the evidence be supplied in question and answer form. But appellees did not avail themselves of the opportunity to make such evidence, if any, a part of the record; therefore, the record contains no substantial evidence to support the judgment.
Since the question of damages was apparently not fully developed, the cause will not be dismissed, but is reversed and remanded for new trial on the issue of damages.
McFaddin, J., dissents. | [
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En. F. McFaddin, Associate Justice.
The jury found the appellant, Elvis Pickens, guilty of the crime of knowingly receiving stolen property (§ 41-3934 Ark. Stats.), and fixed his punishment at five years in the penitentiary. From a judgment on the verdict and an unavailing motion for new trial there is this appeal. The motion for new trial contains nine assignments, but we find it necessary to consider only such assignments as relate to the action of the Court in submitting the case to the jury on the charge of knowingly receiving stolen property.
On the morning of April 11, 1962, Mr. Hale found that a plateglass window had been broken in his store and three power saws had been taken. Each of these had a value of $150.00 or more. About 11:00 o’clock the same morning, the appellant, Elvis Pickens, tried to sell one of these power saws for $25.00 to the manager of the Economy Lumber Company. Pickens carried the saw to the Lumber Company store; while the attempted sale was in progress the officers arrested Pickens; and Hale identified the saw as one of the three that had been stolen from his store. Pickens admitted he knew that the saw was stolen, and took the officers to his home and showed them the other two stolen saws concealed in the house. Pickens claimed — so the officers testified — that three men (two of whom he named) brought the saws to his home in the night time, telling him that they were stolen, and offering to give him one of the saws for concealing the other two. The law enforcement officers were never able to find either of the named men, if there were such persons. Mr. Hale identified all three of the saws as stolen from his store, and they were returned to him.
The appellant and another man were brought to trial on an information which contained only two counts. The first count charged burglary (§ 41-1001 et seq. Ark. Stats.) in breaking and entering the store of Hale with intent to commit larceny; and the second count in the indictment charged the offense of grand larceny (§ 41-3901 Ark. Stats.) in the stealing and taking away of the property of Hale in excess of the value of $35.00 (§ 41-3907 Ark. Stats.). There was no count in the indictment'charging the appellant or the other man being tried with the crime of knowingly receiving stolen property (§ 41-3934 Ark. Stats.). When all the evidence had been heard, the Court charged the jury on the crimes of (1) burglary, (2) larceny, and (3) knowingly receiving stolen property. The jury acquitted the other defendant of all three crimes; and the jury acquitted the appellant Pickens of the crimes of burglary and larceny, but convicted him of the crime of knowingly receiving stolen property; and it is this submission of the issue — of knowingly receiving stolen property —that is now before us.
The appellant’s attorneys objected most strenuously to the Court submitting the case to the jury on the charge of knowingly receiving stolen property, pointing out that the information on which the appellant was tried had only two counts — that of burglary and grand larceny — and had no count charging the offense of knowingly receiving stolen property. We are thus presented with the question of whether the defendant may be convicted of the offense of knowingly receiving stolen property when no count in the information charged that offense.
It is axiomatic that a defendant cannot be convicted for an offense of which he is not charged. In Thornhill v. Ala., 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093, the Court quoted from an earlier case: ‘ ‘ Conviction upon a charge not made would be a sheer denial of due process.” The Supreme Court of South Carolina in State v. Cody, 186 S. E. 165, used this language:
“In all criminal prosecutions, the defendant has a constitutional right to be informed of the accusation against him; and it is a rule of universal observance in administering the criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment. It would be contrary to all rules of procedure, and violative of Ms constitutional right, to charge him with the commission of one crime and convict him of another and very different one. He is entitled to be informed of the accusation against him, and to be tried accordingly. State v. Harbert, 185 N. C. 760, 118 S. E. 6.”
Of course, when a defendant is charged and tried on a greater offense, he may be convicted of a lesser offense included in the greater offense. Some examples showing this rule are: (a) trial on a charge of first degree murder will support a conviction of second degree murder or manslaughter (McPherson v. State, 29 Ark. 225; Arnold v. State, 179 Ark. 1066, 20 S. W. 2d 189; (b) trial on a charge of rape will support conviction of assault with intent to rape (Sherman v. State, 170 Ark. 148, 279 S. W. 353). Without giving other examples, the point is clear that it is only when the lesser offense is included in the greater offense that the conviction of the lesser offense can stand ; so the question here becomes: Is the offense'of knowingly receiving stolen property (under § 41-3934 Ark. Stats.) a lesser offense of either burglary or larceny, so that an indictment or information charging only the greater offense will support a conviction of knowingly receiving stolen property?
We answer the posed question in the negative. Knowingly receiving stolen property (§ 41-3934 Ark. Stats.) is an entirely separate offense from larceny or burglary and is not a lesser offense of either. In Hughey v. State, 109 Ark. 389, 159 S. W. 1129, a defendant was charged with grand larceny; and we said: ‘‘Neither can he be convicted upon an indictment for larceny of receiving stolen property, knowing it to have been stolen.” The holdings in other jurisdictions are in accord with our own holdings on this question. In Abshire v. Gommomvealth (Ky.), 136 S. W. 2d 567, the Kentucky Court of Appeals used this language:
“The crimes of larceny and of knowingly receiving stolen property are not degrees of the same offense,.although they may be joined in one indictment under Section 127, Criminal Code of Practice; Goodin v. Commonwealth, 235 Ky. 349, 31 S. W. 2d 380. There was no count in the instant indictment charging defendant with knowingly receiving stolen property, therefore, he could not have been convicted of that offense under the present indictment. ’ ’
In 52 C.J.S. 800, “Larceny” § 5, the holdings from the various jurisdictions are summarized:
“The crimes of larceny and receiving stolen goods knowing them to have been stolen are different offenses, and not degrees of the same offense, ...”
We point out that since knowingly receiving stolen property is a separate offense from either burglary or larceny, it follows that the appellant, Elvis Pickens, has not been placed in jeopardy in this case for the offense of knowingly receiving stolen property under § 41-3934 Ark. Stats., and may still be charged and tried for knowingly receiving stolen property. In 22 C.J.S. 760, “Criminal Law” § 290, the holdings on this point are summarized :
“Larceny and receiving stolen goods. Although there is some authority to the contrary, an acquittal or conviction of larceny, or of aiding, abetting, and procuring the commission of larceny, is no bar to a subsequent indictment for receiving stolen goods, as the two crimes are separate and independent, require different facts to prove them, and the proof of either will not sustain a charge of the other. A prosecution for receiving stolen goods will not bar a prosecution for alleged theft of the same property; ...”
We therefore conclude that the Trial Court was in error in this case in submitting to the jury the question of whether the appellant was guilty of the offense of knowingly receiving stolen property; and the judgment herein is reversed. Since the appellant is on bond, the cause is remanded with directions to cancel liability on the bond; but without prejudice to the right of the State, if it so desires, to legally charge and try the appellant for the offense of knowingly receiving stolen property.
Holt, J., not participating.
We mention some of the specific objections and exceptions made by the attorneys for the defendants: “The information in this case charges the defendants, each and both, with the offense of burglary and grand larceny; that was the accusation against them and that was the charge upon which we prepared, and the charge upon which we announced ready for trial; and we are objecting to a charge of receiving stolen property being submitted to the jury because it is not charged in the information. It is not embraced in the charge. ... We had no idea there would be an issue of stolen property involved — of receiving-stolen property; that there would be any such charge submitted to the jury. . . . And in connection with this objection they ask leave to withdraw their announcement of ready upon the case and that the Court declare a mistrial and that they be permitted a reasonable time to prepare their defense to the charge of receiving stolen property. That at no time were they apprised of the fact that they would be prosecuted for receiving stolen property and that they were entitled in advance to be so apprised. At no time were they given an opportunity to- get ready on this charge. That the defendants are entitled to know the nature of the charge against them and the theories upon which the State would seek to take this case to the jury; and that they did not in their opening statements make any statement about the case being submitted on the issue of receiving stolen property. That the defendants object and except to the action of the Court in overruling their motion to be permitted to withdraw their announcement of ready in this case, and ask for a mistrial.”
For other instances of the lesser offense being included in the greater, see West’s Arkansas Digest, “Indictment and Information” § 189.
For those interested in pursuing a further study of this question, we mention the following: In Re Powell (N. C.), 84 S. E. 2d 906; State v. Neill (N. C.), 93 S. E. 2d 155; Goodin v. Commonwealth (Ky.), 31 S. W. 2d 380; Aaronson v. U. S. (4th Cir.), 175 F. 2d 41; People v. Negrin, 201 N. Y. S. 2d 59; Samples v. State (Okla.), 337 P. 2d 756; State v. Dancyger (N. J.), 143 A. 2d 753; People v. Russell (Calif.), 94 P. 2d 400; and see Annotation in 136 A.L.R. 1087, entitled: “May participant in larceny or theft be convicted of offenses of receiving or concealing the stolen property.” | [
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Carleton Harris, Chief Justice.
This is an appeal from the Probate Court of Independence County, Arkansas, wherein a claim filed by appellant, Ray C. Chamberlain, against the estate of Claude C. Crawford, deceased, was disallowed because it was not filed within the statutory period.
Claude Crawford departed this life in Memphis, Tennessee, about June 10, 1961, and his Last Will and Testament was admitted to probate in Shelby County, Tennessee, on June 15. On August 18, 1961, a petition was filed in the Independence County Probate Court, seeking ancillary administration for certain property located in that county.
Pat Crawford, a brother of the deceased, and executor under the will admitted in Shelby County, was named personal representative for the ancillary administration on August 26, 1961. Thereafter, on September 1, 1961, the personal representative caused to b® published the “Notice to Creditors,” notifying all creditors to exhibit their claims within six months from the first date of publication, or be forever barred. On September 26, the several heirs of Claude C. Crawford filed an “Entry of Appearance and Waiver of Notice.” On March 15,1962, appellant filed his claim against the estate of Claude C. Crawford, which the court disallowed, the court finding “that the claim of Ray C. Chamberlain be disallowed as not being filed within the six months period allowed for claims against the estate after publication of notice to the creditors.” From such order, comes this appeal.
The appeal is predicated on the fact that the several entries of appearance and waivers of notice by the heirs of the testator were not filed until September 26, 1961, and appellant contends that the notice to creditors could not have been legally published until after the entries of appearance and waivers of notice had been filed. He thus asserts that his claim was filed within proper time; in other words, that the six months statute did not commence to run until September 26.
We do not agree with this contention. At the outset, it will be noted that appellant is not complaining of lack of notice to himself, but rather is complaining of an alleged lack of notice to the heirs. Of course, if the heirs had felt aggrieved at any action taken, or were of the view that some right had been denied them because no notice was given, theirs was the prerogative (under certain circumstances) to complain, but that question is not here presented. In fact, the heirs filed no demand for notice, and, as herein stated, subsequently entered their appearance and waived notice. Section 62-2107, Ark. Stats., provides:
“If an interested person desires to be notified before a will is admitted to probate or before a general personal representative is appointed, he may file with the clerk a demand for notice. A demand for notice is not effective unless it contains a statement of the interest of the person filing it, and his address or that of his attorney. After filing same, no will shall be admitted to probate and no personal representative shall be appointed other than a special administrator until the notice provided in Section 49 (Sec. 62-2110) has been given.”
Section 62-2109 further provides:
“Upon filing the petition for probate or for the appointment of a general personal representative, if no demand for notice has been filed as provided in Section 46 (Sec. 62-2107), and if such petition is not opposed by an interested person, the court may, in its discretion, hear it forthwith or at such time and place as it may direct, without requiring notice.”
Still further, from Section 62-2111:
“Promptly after the letters have been granted on the estate of a deceased person, the personal representative shall cause to be published a notice of his appointment, stating the date thereof, and requiring all persons having claims against the estate to exhibit them properly verified to him, within six months from the date of the first publication of the notice, or they shall be forever barred and precluded from any benefit in such estate. * * * ”
The remaining statute, applicable to this litigation, is Section 62-2601. "We think this claim was clearly barred under either § 62-2111 or § 62-2601.
In Wolfe v. Herndon, 234 Ark. 543, 353 S. W. 2d 540, we said:
“In analyzing the statutes our starting point must be § 100 of the Probate Code, which sweepingly declares that, except in two instances, all claims against a decedent’s estate, ‘whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise,’ shall be forever barred unless presented to the personal representative or filed in court within six months after the first publication of the notice to creditors. Ark. Stats., § 62-2601. This language unmistakably expresses the legislative intention to require the assertion of all claims, including those sounding in tort, within the six-month period.”
Further:
“McAllen Wolfe complains that his guardian ad litem was not appointed in strict compliance with the statute. This is immaterial. The question is whether his claim against the Jacobs estate has been presented within the time allowed by law. * * * In the absence of a savings clause it was incumbent upon McAllen to present his claim in compliance with the statute. The asserted procedural irregularity could not affect his affirmative duty of establishing his claim according to law.”
Since the record reflects that statutory requirements were followed by the personal representative, and that appellant’s claim was filed more than six months after the first publication of notice to creditors, it follows that the claim was properly disallowed.
Affirmed.
The court never did reach the merits of the claim.
Pertinent portions of Section 62-2601, are as follows:
a. STATUTE OF NONCLAIM. Except as provided in Sections 111 [§ 62-2602] and 119 [§ 62-2610], all claims against a decedent’s estate, other than expenses of administration and claims of the United States which, under valid laws of the United States, are not barrable by a statute of nonclaim, but including claims of a state or territory of the United States, and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, shall be forever barred as against the estate, the personal representative, the heirs and devisees of the decedent, unless verified and presented to the personal representative or filed with the court within six months after the date of the first publication of notice to creditors.
b. STATUTES OF LIMITATION. No claim shall be allowed which was barred by any statute of limitation at the time of the decedent’s death.
c. WHEN STATUTE OF NONCLAIM NOT AFFECTED BY STATUTES OF LIMITATION. No claim shall be barred by the statutes of limitation which was not barred thereby at the time of the decedent’s death, if the claim shall be presented to the personal representative or filed with the court within six months after the date of the first publication of notice to creditors. * * * * | [
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Jim Johnson, Associate Justice.
This appeal involves a petition for writ of error coram nobis. Appellant Joe Dement was charged on two counts with the crimes of burglary and grand larceny. On November 27, 1962, he was arrested, information was filed against him, and he signed a confession of commission of the crimes. Appellant was arraigned December 3, 1962 and entered pleas of guilty as charged. On December 7th appellant was sentenced by the Greene County Circuit Court to two ten-year concurrent sentences in the penitentiary. On December 14th appellant’s father caused to be filed a petition for writ of habeas corpus, alleging that appellant “entered a plea of guilty to criminal charges without benefit of advise of council [sic] prior to entering his plea to said charges.” The writ of habeas corpus was granted that day, and on January 5, 1963, hearing was held on the petition for the writ of habeas corpus. At the request of appellant and with the assent of the State, the petition for writ of habeas corpus was treated by the court as a petition for writ of error coram nobis, which was denied. Thereafter on January 7th appellant filed a petition for writ of error corara nobis and motion to vacate. On January 12th the trial court sustained the State’s motion to dismiss the second petition and on that day entered the order of January 5th finding that the allegations of the petition were not sustained and the prayer of the petition was accordingly denied.
From such order appellant prosecutes this appeal.
It is well settled that under the Fourteenth Amendment of the United States Constitution and Article 2, Section 10 of the Constitution of Arkansas acceptance of a plea of guilty without first giving or offering the accused benefit of counsel constitutes a denial of due process of law. Swagger v. State, 227 Ark. 45, 296 S. W. 2d 204.
The trial court’s order recites that the State admitted that appellant did not have counsel at the time he entered his plea of guilty.
On appeal, appellee argues that “ [t]he State admits only to the fact that the appellant had no attorney at the time he entered a plea of guilty, not to allegations that he was denied or hot informed of rights to be advised by counsel at any stage prior to his plea of guilty to the charges of burglary and grand larceny. Such allegations remain unsupported.”
The record is silent as a tomb on the question of whether appellant was offered counsel and, if so, whether he in fact waived such counsel. In the recent decision of Carnley v. Cochran, 369 U. S. 506, 82 S. Ct. 884, the United States Supreme Court, in a non-capital felony ease, set out this criterion:
“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.”
In the absence of such an affirmative showing, the judgment is reversed and the cause remanded for further proceedings consistent with this opinion. | [
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Frank Holt, Associate Justice.
This litigation is the result of a collision between two automobiles on September 4, 1961, near Jacksonville, Arkansas, resulting in the death of one of the occupants and injuries to the three others. One of the automobiles was driven by the appellee, T. F. McCarty. His wife, Virginia McCarty, was a passenger in his vehicle and suffered injuries causing her death. The appellant, Simon Steinberg, was driving the other vehicle and his wife, Buth Steinberg, was accompanying him.
A suit was filed by appellee, Bernard Bay as Administrator of the Estate of Virginia McCarty, against Simon Steinberg in the Circuit Court of Lonoke County, Arkansas. Mr. McCarty also filed suit against Mr. Steinberg and Mrs. Steinberg in the same forum. Subsequently, counterclaims were filed by Mr. Steinberg and Mrs. Stein-berg against Mr. McCarty. The cases were consolidated for trial. The Court granted Mrs. Steinberg’s motion for a directed verdict on the complaint against her which was based upon the allegation of a joint venture. The Court overruled Mr. Steinberg’s timely motions for a directed verdict on the complaints against him. The jury returned a verdict in favor of the appellee, T. F. McCarty, in the amount of $13,000.00 and in favor of the appellee, Bernard Bay, Administrator of the Estate of Virginia McCarty, in the amount of $1,300.00. Both verdicts were against Simon Steinberg who appeals. There is no cross-appeal.
Appellant relies for reversal on the refusal of the trial court to direct a verdict in his favor. Therefore, the only issue presented by this appeal is whether there was any substantial evidence to support the verdicts in favor of appellees.
The plaintiffs-appellees allege in their complaints that at the time of the accident appellee-McCarty was driving his vehicle on Highway No. 67 in a southerly direction and the defendant-appellant was entering U. S. Highway No. 67 from State Highway No. 161 on a curving upgrade approach at an unlawful and unreasonable rate of speed and without yielding as required by law, colliding’ with McCarty’s automobile and that the negligence of the appellant consisted of traveling at an excessive and unlawful speed; failing to keep a lookout; failing to yield the right-of-way; failing to keep his car under control and that the negligence of the appellant was the proximate cause of the accident. The Steinbergs denied these allegations.
To meet the burden of proving these allegations of negligence the appellees rely on the testimony of Olen Hutson, a Jacksonville City Policeman. He testified that he made an investigation following the accident and when he arrived on the scene he found both vehicles in the northbound traffic lane. McCarty’s vehicle was found headed in a “northwesternly” direction and Steinberg’s in a “ northeasternly ’ ’ direction. He testified that he could not “pinpoint” the point of impact. Further, he estimated McCarty’s car to be a distance of ten feet from the point of impact and Steinberg’s car about twelve feet from the point of impact on the right or east side of the northbound traffic lane and off the highway in the ditch. He testified that the Steinberg car had left approximately ninety feet of skid marks leading up to the point of impact. He placed the accident as being on Highway No. 67 at or a little north of the access or ingress road coming onto and merging with Highway No. 67. This is where the four-lane highway, No. 67, narrows or merges into two lanes. In response to the question if Hutson could determine by the physical facts where the Steinberg vehicle came from, he replied:
“No, sir, not definitely. I might say it appeared the Steinberg vehicle came off of the old highway on to the new highway. ’ ’
On cross-examination he testified that at the time of the accident this access or ingress road, with a yield right-of-way sign, was limited to northbound traffic.
Appellee-McCarty, who was 71 years of age, was unconscious for two and a half weeks following the accident. He testified that he had no recollection as to how the accident happened. He testified that he was driving his automobile south from Cabot to Jacksonville and that:
“I was on Highway 67 and I was going that way and there was a road turning off to the left and we were trying to take that road, as far as I can remember now going to Jacksonville and that is all I remember.”
Appellant,- Steinberg, 62 years of age, denied that he entered No. 67 from the access or ingress road and testified he was already on Highway No. 67 going north, en route from El Dorado to Paragould, Arkansas, and that he was traveling between forty-five and fifty miles per hour as he was leaving the four-lane portion of the highway merging into two lanes; that he first noticed the McCarty car in its proper or southbound lane as it was meeting him and no other car was in sight; that as the two cars neared each other, McCarty pulled from his southbound lane across and into the northbound lane in front of him, whereupon he, Steinberg, applied his brakes and swerved to his right in an unsuccessful effort to avoid the collision. Mrs. Steinberg corroborated his testimony. Hugh Meeks testified that he witnessed the accident from a distance of about two hundred feet and his testimony tended to corroborate Mr. Steinberg’s testimony.
We must view the evidence in this case and all reasonable inferences deducible therefrom in the light most favorable to the appellees and if there is any substantial evidence to support the verdict we must affirm it. Arkansas Power & Light Co. v. Connelly, 185 Ark. 693, 49 S. W. 2d 387; Davis v. Bullard, 231 Ark. 898, 333 S. W. 2d 481.
However, it is also our duty to determine the sufficiency of the evidence as a matter of law. St. Louis Southwestern Ry. Co. v. Braswell, 198 Ark. 143, 127 S. W. 2d 637. In this case we said:
“It would seem, however, that in any view to be taken, the issues are whether the evidence is substantial, and who is to judge of that quality. If this is not a question of law, then substantiality loses its significance, with the result that any testimony may suffice.”
The burden rested upon the appellees to present proof from which could be adduced some substantial evidence on which the jury might find negligence on the part of the appellant as alleged in appellees’ complaints. The alleged negligence conld be established either by direct or circumstantial evidence. Appellees earnestly and forcefully contend that the testimony of the investigating officer, Olen Hutson, is substantial in nature. We cannot agree. Juries are not permitted to base their verdicts on speculation and conjecture. Kapp v. Sullivan Chev. Co., 234 Ark. 415, 353 S. W. 2d 5; Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S. W. 2d 290.
In the case at bar it is not shown by any factual evidence that the appellant, Steinberg, was negligent or that any negligence on his part was the proximate cause of the accident. The undisputed evidence in this case is that appellant, Steinberg, was proceeding north in his proper lane of traffic and that the appellee, McCarty, was proceeding south in his proper lane of traffic as they approached each other. McCarty admits he was trying to turn to his left and enter an access road. This ingress road was limited to northbound traffic. According to the physical facts in this case the Steinberg vehicle left ninety feet of skid marks behind it leading up to the point of impact and both vehicles came to rest in the northbound traffic lane, or in Steinberg’s proper lane of traffic. There is no evidence whatsoever that Steinberg was ever out of his proper lane of traffic.
Further, at or near the scene of this accident there was a large sign visible to southbound traffic with an arrow and the words “Keep Right”. This was the direction appellee, McCarty, was traveling.
According to the evidence in this case there is no proof of facts, nor can any reasonable inferences be drawn from the evidence, that establishes any substantial evidence that the appellant, Steinberg, was negligent or that any negligence on his part was the proximate cause of this collision resulting in injuries to the appellees.
We agree with the appellant that the Court should have granted his motions for a directed verdict. Therefore, the case being fully developed, the judgment is reversed and the cause dismissed. | [
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Ed. F. MoFaddin, Associate Justice.
The appellant, as a citizen and taxpayer, filed á petition in the Conway Circuit Court praying for a writ of mandamus against “The Conway County Court and its Judge, Tom Scott,” as sole defendant.
The petition for mandamus, along with the amendment thereto, alleged: that the Collector of Conway County in transcribing and certifying the list of persons who paid poll tax, failed to include with the name of the poll tax payer his residence, post office address, voting precinct, and school district, all of which information is required by § 3-227 Ark. Stats.; that the County Clerk likewise failed in the same particulars; and that the Morrilton Headlight, in printing the list of poll tax payers, likewise failed in the same particulars. The petition alleged that § 3-227 Ark. Stats, “makes it mandatory upon the County Court to enforce the provision of said Act by deducting sums from the Collector for errors made in transcribing and certifying poll tax receipts . . . and the defendant refuses to assess and withhold penalties from sums due the collector of Conway County.” The prayer of the petition was: “Plaintiff prays a writ of mandamus from this Court to require the defendant to comply with the laws of Arkansas § 3-227 Ark. Stats. ’ ’ ; and the prayer of the amendment was for an order “to compel the defendant to enforce such statute (% 3-227 Ark. Stats.) by collecting the penalties owed by the Collector, Clerk, and printer for the errors committed by them.”
To the petition and amendment the defendant filed a demurrer, and also a motion to dismiss. The Court reserved decision on these two defensive pleadings until the plaintiff had offered all desired evidence; and then the Court overruled the defensive pleadings, held that the plaintiff’s proof was insufficient to grant the prayed relief, and dismissed the complaint.
From that adverse judgment the plaintiff, as appellant, brings this appeal, and urges a threshold question, which is that the defendant did not file an answer within the time provided by § 33-107 Ark. Stats., and the Trial Court should have granted the plaintiff the prayed injunction because of defendant’s default. There are several answers to this threshold question. In the first place, § 33-107 Ark. Stats, says that if no answer be filed, then “upon a proper showing suitable relief shall be speedily granted.” Even in the absence of an answer, the burden was on the plaintiff to make a “proper showing”; and that presented the question of the sufficiency of the plaintiff’s evidence. In the second place, this question of a claimed default was never mentioned in the Trial Court and cannot be raised here for the first time. See Lambert v. Lambert, 229 Ark. 533, 316 S. W. 2d 822. A third and equally conclusive answer to the appellant ’s contention on this default matter is that defendant was not in default. The original petition for mandamus was filed on June 12, 1962, and the amendment a few days later; on June 20, 1962, the defendant filed the demurrer and also the motion to dismiss. These defensive pleadings were filed in ample time and were not disposed of until the final judgment herein, so the defendant was never in default as regards defensive pleadings.
The main insistence of the appellant is that he introduced the printed list containing the names of the poll tax payers of Conway County for the year 1961 (legal voters from October 1, 1961 to September 30, 1962); that such list shows only the name and color of the voter and the township in which he resides; and that the list does not even purport to give the other information required by § 3-227 Ark. Stats., that is, it does not give the residence, post office address, and school district of each voter. In the course of the trial the appellant undertook to show errors and duplications in the printed list as filed, but was prevented from doing so by the ruling of the Trial Court that the proffered evidence was hearsay. We find no error in the Trial Court’s ruling in the hearsay matter.
We come, then, to the real insistence of the appellant, which is that the County Court and Judge thereof should be required by mandamus to enforce the provisions of § 3-227 Ark. Stats. To this issue the appellee presents here a series of answers:
(1) The appellee claims that the provisions of § 3-227 Ark. Stats, are contrary to Amendment No. 8 of the Arkansas Constitution, as construed in such cases as Wilson v. Danley, 165 Ark. 565, 265 S. W. 358; Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257; and Wilson v. Luck, 201 Ark. 594, 146 S. W. 2d 696. We forego any discussion of the appellee’s contention on this point because a case is not to be decided on constitutional issues if it can be decided on any other issue, as this one can. Holt v. Howard, 206 Ark. 337, 175 S. W. 2d 384; Smith v. Smith, 223 Ark. 627, 267 S. W. 2d 771.
(2) The appellee urges that § 3-227 Ark. Stats, was repealed by § 3-118 Ark. Stats. Likewise, we forego any discussion of this second point urged by appellee because there is no need to consider the question of repeal of statutes, since this case can be decided on the remaining issue.
(3) The third point urged by the appellee is that the Trial Court should have sustained the defendant’s demurrer to the complaint because the complaint did not state facts sufficient to constitute a cause of action; and it is on this point that we rest our affirmance of the Trial Court’s decree, even considering all the evidence that was introduced in the case. This is because the Trial Court reached the correct result, even on an erroneous theory. When the decision of the Trial Court is correct, it will be sustained when supported by principles of law thought by the Trial Court not to obtain. State v. Gus Blass Co., 193 Ark. 1159, 105 S. W. 2d 853; Gage v. Arh. Central, 160 Ark. 402, 254 S. W. 665; and Polk v. Stephens, 126 Ark. 159, 189 S. W. 837.
The plaintiff’s entire case was based on the provisions of § 3-227 Ark. Stats., which relates to the certified list of poll tax payers. That statute says that such list shall contain, inter alia, the name of the poll tax payer, and also the 44. . . residence, post office address, school district, and voting precinct”; and the § 3-227 further says: 4 4 For each error rendering void the poll tax receipt in the transcribing, certification, or printing of the names, color, residence, post office address, school district, or voting precinct. .. the collector, clerk, or printer making the same shall be assessed the sum of $1.00, which sum or sums shall be deducted from any sums due such officer or printer from the County when settlements are made with such officer or printer, and the enforcement hereof is made mandatory upon the County Court.” (Emphasis supplied.) It is solely because of the italicized language that the plaintiff filed this mandamus action in the Circuit Court; and we hold that the plaintiff misconceived his remedy.
The fact that the statute said that it was mandatory upon the County Court” does not mean that mandamus from the Circuit Court is the proper remedy. “Mandatory” means “obligatory”, as opposed to “di rectory.” Tbe plaintiff, as a citizen and taxpayer, should have appealed from any order of the County Court wherein the County Court failed to follow the statute relied on by the plaintiff. Mandamus cannot be used to correct an erroneous decision already made. Jackson v. Collins, 193 Ark. 737, 102 S. W. 2d 548. Mandamus does not issue where there is any other adequate remedy. Snapp v. Coffman, 145 Ark. 1, 223 S. W. 360; and Ghent v. State, 189 Ark. 747, 75 S. W. 2d 67. Mandamus will not be granted where there is a remedy by appeal. Cantley v. Irby, 186 Ark. 492, 54 S. W. 2d 286; Mance v. Mundt, 199 Ark. 729, 135 S. W. 2d 848; and Karoley v. Reed, 233 Ark. 538, 345 S. W. 2d 626. Mandamus is not a writ to control the discretion of an inferior tribunal. Nixon v. Grace, 98 Ark. 505, 136 S. W. 670; Cantley v. Irby, 186 Ark. 492, 54 8. W. 2d 286; Karoley v. Reed, 233 Ark. 538, 345 S. W. 2d 626; Jackson v. Collins, 193 Ark. 737, 102 S. W. 2d 548.
Since mandamus was not proper in this case, we affirm the judgment of the Trial Court dismissing the plaintiff’s complaint.
The demurrer claimed: (1) the complaint and amendment failed to state a cause of action; (2) an absence of jurisdiction; and (3) a defect of parties.
It is apparent that the printed list as filed was prepared in conformity with § 3-118 Ark. Stats., rather than in conformity with § 3-227 Ark. Stats. | [
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G-eobge Rose Smith, J.
In September of 1960 the appellant shot and killed her seventeen-year-old granddaughter, Carolyn Talley. Tried for murder in the first degree the appellant was found guilty of murder in the second degree and was sentenced to imprisonment for five years. We discuss the more serious points raised in the motion for a new trial.
The evidence is amply sufficient to support the conviction. On the evening in question the appellant was acting as a baby sitter in the home of Mrs. Blaine Terry, in Hot Springs. In going to the Terry home the appellant was accompanied by another granddaughter, Julie Ann Talley, the younger sister of the deceased. Upon this occasion the accused carried a loaded pistol in her purse—for the purpose, she testified, of protecting herself if anyone should try to break into the Terry home.
There is a sharp conflict in the testimony about the homicide itself. At about 7:30 p.m. the appellant’s daughter-in-law, who was separated from the appellant’s son, drove up to the Terry home, accompanied by her daughter Carolyn. The appellant says that when the car appeared Julie Ann and one of the two Terry children ran into the house, in a state of alarm. The appellant took the pistol from her purse, turned out the lights, and latched the front screen door. According to the appellant, Carolyn came up on the porch, jerked at the screen door, and cursed the appellant, who was sitting just inside the door. Mrs. Talley insisted at the trial that she had no intention of harming her granddaughter, to whom she was devoted. She gave two versions of the shooting, one that the gun went off accidentally, the other that she tried to scare Carolyn by firing up into the air. The bullet entered the child’s left eye and apparently caused her instant death.
A decidedly different account is given by Carolyn’s mother. She states that she and her daughter happened to be driving in the neighborhood when they saw Julie Ann in the Terry yard. Carolyn had not seen her sister for some time and went to the front door for the purpose of having a visit with her. The younger Mrs. Talley tes tified that just before the shot was fired she heard her mother-in-law say: “I’ll teach you not to come up here. ’’ The jury were at liberty to accept the State’s proof as being the truth. That proof fully supports the verdict, for it puts the accused in the position of having deliberately shot a defenseless child with hardly even a semblance of provocation.
The older Terry child was thirteen and the younger one eleven when the homicide occurred. At the trial, more than a year later, they were both called as defense witnesses. On cross-examination the prosecuting" attorney was permitted to test their credibility by questioning them about statements made by them to the investigating officers soon after the crime took place. This cross-examination was objected to, on the ground that the State had not shown that the children were competent witnesses at the time they were interrogated by the officers or that their parents were present.
The objection was without merit.- By offering the children as witnesses the defense in effect represented to the court that they were competent to testify about what they had observed on the night of the homicide. The trial court properly refused to allow the accused to take advantage of the children’s favorable testimony upon the theory that they were competent witnesses and at the same time disavow their unfavorable testimony upon the theory that they were not. The circumstances under which the children were questioned by the officers were pertinent, as tending to weaken the State’s attack upon their credibility, but those circumstances did not render inadmissible the fact that they had made inconsistent statements out of court. ':
Complaint is made of the trial court’s refusal to give two instructions requested by defense counsel. Even if we assume that proper exceptions were saved to the court’s action we find no prejudicial error. The first requested instruction would have explained one’s right to take life in the defense of a habitation. This charge was properly refused, because the evidence did not justify- it. McFarland v. State, 165 Ark. 431, 264 S. W. 938. Accord ing to the appellant’s testimony she was not attempting to defend the habitation, for she insists that she did not mean to shoot at Carolyn. And if the jury accepted the State’s testimony, which indicated that the killing was deliberate, the cold-blooded attack upon an unarmed and helpless child could not possibly have been justified by any supposed necessity for defending the Terry home.
The other requested instruction would have given the jury the option of finding the accused guilty of involuntary manslaughter. The court elected to submit only the offenses of first degree murder, second degree murder, and voluntary manslaughter. In view of the verdict the error, if any, was harmless. As we said in Newsome v. State, 214 Ark. 48, 214 S. W. 2d 778, “Any supposed error for failure to charge as to involuntary manslaughter was rendered harmless by the fact that the jury convicted [the accused] of second degree murder.”
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Carretón Harris, Chief Justice.
This is a Workmen’s Compensation case. Virginia K. Rhea, for herself and children, filed a claim which arose out of the death of her husband, Boyce Rhea, who died from a brain hemorrhage on February 1, 1960, on which date he was admittedly employed by M-K Grocer Co., Inc. Appellants contend that Mr. Rhea sustained an accidental injury, arising out of and in the course of his employment, and that they are entitled to compensation. The referee found that the brain hemorrhage which Rhea suffered, and which resulted in his death, did not arise out of and in the course of his employment. The full commission sustained this finding, and, on appeal to the Circuit Court, the eommis sion was affirmed. From the judgment so entered, appellants bring this appeal.
According to the testimony of Clyde Pearson, a fellow worker, Rhea started to work at 7:00 A.M. on the date in question (February 1, 1960), working as a shipping clerk, and after helping load a truck, assisted three or four men in pushing a box car to the proper place for loading, a distance of three or four feet. Before moving this car, it was necessary to push another loaded box car out of the way for the same distance. This was moved by using a pinch bar, and with all parties pushing. Moving the box cars was an unusual duty for Rhea. Pearson was unable to state the time this work took place other than it occurred between 9:00 and 12:00 A.M. He testified that Rhea went to lunch at 12:00 o’clock, and returned from lunch “right at 1:00 o’clock.” From the testimony:
“I was sitting in the office. He came through. He generally stopped and talked but he come on through to the back of the store and got him a cup of water and sat down on the floor and I got up and followed him out and when I got out there, why he was setting weaving and I asked him what was wrong and he said he had a severe headache and I asked him if I could do something and he didn’t answer me then and then he said ‘Somebody has got to do something’ and I said ‘I’ll call an ambulance’ and run in the office and told Charles to call an ambulance that something was wrong and I run back out there and Kyle, Hugh and I just lay him on down because he was about to fall. ’ ’
The witness stated that Rhea was unconscious and he could hear a “gurgle in his throat.” The ambulance arrived in about 10 minutes, and Rhea was taken to the hospital.
Leonard Crain, another fellow employee, testified that Rhea came to work on the morning in question prior to 7:00 o’clock, and he verified Pearson’s testimony to the effect that Rhea had helped in pushing the box cars. He stated that subsequently Rhea was engaged in “stacking cans” in the warehouse, which required the latter to pick up cases weighing approximately 40 pounds each, and stacking same above his head. This work, according to the witness, lasted for two or two and one-half hours. Crain said that around 11:00 o’clock, Rhea told the workers “that he had a bad headache, says ‘I don’t believe I have ever had the headache any worse ’ and so that was all that was said, and he went back down and stayed downstairs then until noon.” Crain further testified that the workers ceased work at 12:00, upon directions from Rhea who ‘ ‘ a few minutes before 12:00, between 11:30 and 12:00” had told the employees “to come on down pretty soon that it was time to go. ’ ’ The witness stated that Rhea returned from lunch about 20 minutes until 1:00 o ’clock, and suffered the attack 5 or 10 minutes later.
Dr. J. A. Henry, a physician of Russellville, testified that he became acquainted with Rhea in 1952, and performed an operation on the latter at that time for a ruptured liver. He attended Rhea after the attack on February 1. Dr. Henry stated that Rhea suffered a cerebral hemorrhage, and the medical history revealed that the deceased had pre-existing arteriosclerosis. Following Rhea’s death, an autopsy was performed. From the testimony:
‘ ‘ It was our opinion that there had been an aneurysm in this region which had ruptured and produced the hemorrhage. This could have been a congenital aneurysm. It could have been an aneurysm due to arterial disease, arteriosclerosis because pathological examination of other arteries in this region revealed evidence of arteriosclerosis. ’ ’
"When asked what would hasten the rupture of an aneurysm, Dr. Henry replied,
“Anything that an individual with an aneurysm might do that would tend to increase the pressure of the blood within that diseased artery could naturally tend to cause it to rupture and the things that might increase one’s blood pressure would be physical exertion, could be mental strain, certain positions that the body might be placed in that could increase pressure within and say if the aneurysm were in the brain, increase the stress there, the pressure within the blood vessel.
“I want to add that these aneurysms can rupture while at rest. There can be enough stress and strain placed on this weakened place that eventually it just ruptures at some time when even the patient might be asleep but I think that it is without question that any extra stress that would be placed on this blood vessel, particularly anything that would increase the pressure within it such as elevation of the blood pressure would be more apt to cause it to rupture quicker than it would if the stress were not placed upon it. ’ ’
In response to a hypothetical question, based upon the work that Bhea had been performing, the doctor stated,
“I would think that severe excessive physical exertion would at the time that this exertion was being performed would raise his blood pressure and this man had had a pre-existing moderate elevation of his blood pressure. ’ ’
The doctor concluded that the exertion by Bhea at his work contributed to the fatal hemorrhage, and he was definitely of the opinion that the rupture would not have occurred as quickly if the work activities had not been engaged in. On cross-examination, Dr. Henry testified that the increased pressure (caused by the work) could have caused the rupture either during the period of exertion or later.
Dr. Robert Watson, neurosurgeon of Little Rock, testified in behalf of appellees by deposition on August 25th. The doctor stated that he had read the transcript in detail, consisting of testimony taken on May 26, and on July 24. He was likewise of the opinion that the cause of Rhea’s death was a massive cerebral hemorrhage at the base of the brain, as described by the autopsy report. He was then asked the following question by counsel for appellees:
“Q. From the record that you have reviewed and your study of it, what is your opinion as to whether or not the work described in the record which Mr. Rhea did on the day of his death caused or was a causative factor in his death on that date?”
This question was objected to by counsel for appellants, who stated,
“I think you are going to have to detail out the exact facts on which you are questioning him. I think that is a broadside question just asking him of facts based on the entire record. I think he needs to detail it out and make it definite and certain.”
The objection was overruled, and Dr. Watson replied as follows:
“I reviewed the record pertaining to what different witnesses said in respect to the work that was done, the type of work, the time element particularly was considered, that the man went on to a supposedly normal lunch hour and returned back to work in a rather normal fashion and then abruptly showed evidences of being in severe difficulties and, based on the information that I gained from reviewing the record, I do not feel that the work that he did was a major factor in the abruptness of his. death after the lunch hour.”
Further, from the testimony:
“Q. With regard to the time of his death which occurred about one o’clock, can you give us your opinion, as to the time he sustained the cerebral hemorrhage?
“A. In view of those factors that I have just enumerated, I feel that the time element between the hemorrhage and the onset of symptoms and also the onset of death was certainly a brief time and by “brief” I mean a matter of minutes.”
Dr. Watson then stated that it is very common for people to suffer a brain hemorrhage while simply talking to someone, and “these hemorrhages are common occurring while they are watching TY or while they are driving a car or even in their sleep.”
From the record:
“ Q. Now in your opinion—I am rephrasing it again. Did the work that this man was doing on the morning of February 1st as reflected by the transcript in this case cause or directly cause the hemorrhage which occurred to his brain according to the record again about one o ’clock p.m. ?
“A. I reviewed the record as I say and from what information I have, the work did not cause the hemorrhage occurring around one p.m.”
The doctor was also of the view that Rhea’s work did not contribute in any manner to the hemorrhage. He said, “It is most unlikely and certainly highly speculative and I do not know how one would prove that the work that he did that morning would contribute to his accident. ’ ’
We are of the opinion that the judgment must be reversed, and the cause remanded to the commission. This conclusion is predicated on the fact that additional evidence was offered by the claimant on September 7, which was not available to Dr. Watson at the time he gave his opinion. This additional information consisted of “bedside notes,” “personal history and physical examination,” and an affidavit by E. B. Dodson. That affidavit is as follows:
‘ ‘ I am an employee of Shinn Funeral Home, Russell-ville, Ark., and was so employed on February 1, 1960. I was present in the office of Shinn Funeral Home on February 1, 1960, when the emergency call came in for an ambulance to pick up Boyce Rhea, deceased, at the M. K. Grocery Co., Inc., here in Russellville.
“When this call came in to the Funeral Home, it was answered by Mr. Avery Shinn. I looked at my watch as Mr. Shinn was taking the call, and at that time it was twelve minutes past twelve o’clock noon (12:12 p.m.), February 1, 1960.
“I accompanied Mr. Shinn with the ambulance to pick Mr. Rhea up. He was unconscious when we arrived at M. K. Gro. Co. Mr. Shinn and I delivered Mr. Rhea to the emergency room at St. Mary’s Hospital, Russellville, Arkansas, at approximately 12:22 p.m. or 12:23 p.m. I was present when Dr. Arnold Henry examined Mr. Rhea, and took his blood pressure, which was approximately 12:30 p.m. on February 1,1960.”
It will be recalled that Pearson testified that Rhea returned from lunch “right at 1:00 o’clock,” and suffered the attack shortly thereafter. Crain testified that Rhea returned from lunch about 12:40, and suffered the attack five or ten minutes later. Dodson’s affidavit indicates that the attack occurred about 12:10, so that there is a variance of nearly an hour between the testimony of Pearson and the affidavit by Dodson. It will be noted that Dr. Watson, in giving his opinion, emphasized the time element, as he said, “The time element particularly was considered, that the man went on to a supposedly normal lunch hour and returned back to work in a rather normal fashion and then abruptly showed evidences of being in severe difficulties, * * * . ” Appellees argue that the facts mentioned are immaterial, since Dr. Watson was of the opinion that death, or complete inability to continue work, would have occurred within a few minutes. We do not agree. Inasmuch as the referee’s finding was based almost entirely on the testimony of Dr. Watson, we feel that the facts should be clearly ascertained. The doctor considered that Rhea took a “normal lunch hour.” This term needs clarification. What is meant by a normal lunch hour? Does this have reference to the fact that Rhea left for lunch at his regular time? Does it mean that he was apparently feeling as well as usual, or that he partook of an average meal? Does the quoted statement have reference to the amount of time spent away from work during the noon period? Under common usage, a normal “lunch hour” is probably considered as one hour, as denoted by the term itself. Pearson testified that Rhea went to lunch at 12:00 o’clock, and returned at 1:00 P.M., and yet Dodson’s statement, which was not in the record at the time Dr. Watson read same, relates that the call for the ambulance occurred at 12 minutes after 12:00. Since Dodson made a record of the time, it would appear that his statement was correct. Under the testimony of either fellow worker, Rhea could not have gone to lunch before 11:30. On the other hand, if Pearson was an hour “off” on the time that Rhea went to, and returned from, lunch, Rhea would have left the plant at about the time of the severe headache complained of at 11:00 A.M. Certainly, it would seem that this point could be more clearly developed. It may be that Dr. Watson’s opinion (as to whether the work contributed to the injury) will remain unchanged, irrespective of whether Rhea went to lunch at 11:00 A.M., 11:30 A.M., or 12:00 noon, and it may be considered inconsequential as to whether he remained off during the lunch period for 10 minutes, or an hour—but, as stated, inasmuch as the denial of compensation was based upon the doctor’s evidence, we feel that these matters are deserving of clarification. This is particularly true since the conflict in evidence is closely related to the objection appellants made (the fact that Watson’s opinion was not elicited by a hypothetical question).
Appellants vigorously argue that the referee and commission committed error in permitting the doctor to give his opinion simply by reviewing the entire record, rather than requiring appellee’s counsel to obtain the doctor’s opinion through a hypothetical question embracing pertinent facts, since under the latter procedure, the commission and parties would clearly have known the basis for the doctor’s opinion. Appellees defend the method used, and both sides cite several tort cases in support of their positions. Cases cited by appellees deal with situations wherein doctors listened to testimony in the court room and were then permitted to express their opinions. This question is just now arising in compensation cases, and we think a definite rule should be fixed. It is, we think, noteworthy, that in a majority of the cited cases where the practice was permitted, the doctor’s opinion was given after listening to the testimony of, or being interrogated about the findings of, only one witness. This is in line with the views of most of the authorities examined. In McCormick on Evidence, Chapter 3, Section 14, Page 30, we find:
“In many jurisdictions, if seems customary to have the expert witnesses in court during the taking of testimony, and then when the expert is himself called as a witness, simplify the hypothetical question by asking- the expert to assume the truth of the previous testimony, or some specified part of it. This practice has some advantages, and some limitations. Two obvious requirements are that the facts that the witness is assuming must be clear to the jury, and that the data assumed must not be conflicting. A question which asked the witness to assume the truth of one previous witness ’ testimony will usually meet these requirements, but as the range of assumption is widened to cover the testimony of several witnesses, or all the testimony for one side the risk of infraction is increased, and when it covers all the testimony in the case, the question would manifestly be approved only when the testimony on the issue is not conflicting and is brief and simple enough for the jury to recall its outlines without having them recited. ’ ’
In 32 C. J. S., Section 554, Pages 362 and 363, appears the following:
“A desire to economize time has led a number of courts to sanction the practice, in eases where the facts are undisputed, of dispensing with, a recital of facts in a hypothetical question and asking the witness to state his judgment “upon the evidence,” or even on such a part of it as is material to the inquiry, although it is conceded to be the better practice to proceed in the regular manner and frame a hypothetical question, one objection to the question on the evidence being that the witness may not be able to remember all the testimony, and to allow him to proceed on what he chances to recollect deprives the parties of any knowledge as to the real basis of his inference. The witness must, of course, have heard the evidence, or be familiar with it, and the question must require him to assume that it is true. * * *
“In some jurisdictions the practice of allowing an expert witness to ascertain the facts directly from the evidence, instead of their being embodied in a hypothetical question, has been condemned and generally disallowed, and even where the practice is allowed it is subject to limitation, and even to curtailment, in the discretion of the court. A question “upon the evidence” should never be permitted where the facts are in dispute, and the testimony is voluminous and complicated, for the reason that such a practice necessarily involves an invasion of the province of the jury, whereas the function of the witness is not to decide on the facts but to assume their truth, and for the further reason that, as the answer of the witness would disclose nothing as to his view of the facts, it would be impossible to tell what facts were used by him in forming his judgment.”
In Arkansas Baking Company v. Wyman, 185 Ark. 310, 47 S. W. 2d 45, we stated that the better practice in obtaining the opinion of an expert witness is by the use of the hypothetical question.
In Holstein v. Quality Excelsior Coal Co., 230 Ark. 758, 324 S. W. 2d 529 (compensation case), a doctor gave an opinion based upon a study of the autopsy report and a hospital record. We approved this on the basis of the fact that the autopsy report is a statement of facts rather than an expression of an opinion, and we also approved the use of the patient’s clinical history and hospital re ports, stating, “These documents were undoubtedly admissible under the statutes that govern in compensation cases, Ark. Stats. 1947, §§ 81-1323 and 81-1327; * * * . ”
The reasonableness of requiring expert opinions in compensation cases to be given in response to hypothetical questions can hardly be disputed. In the first place, these cases frequently involve several hearings, and sometimes extend over a period of months. Furthermore, there is often considerable testimony, much of it at variance. It is somewhat doubtful that an expert, while testifying, could keep all of the facts clearly in his mind; certainly, he will give preference to some facts over others, as being more important or pertinent to the issue. The commission, as well as the attorneys, are entitled to know the basis of the expert’s opinion. If a doctor is permitted to simply read the entire record, and thereafter give his opinion, based upon that record, without stating the particular testimony, or facts, upon which the opinion is based, he actually becomes a trier of the facts, and thus usurps the function of the commission.
In Hulsizer v. Johnson-Brennan Construction Co., 232 Ark. 571, 339 S. W. 2d 116, we reversed the finding of the commission, holding that a medical expert, in answering a hypothetical question, assumed a fact not in evidence. In the case before us, it is established that Dr. Watson’s views were expressed after reading a record that did not contain all of the possibly pertinent evidence; “established,” we say, because the evidence had not even been introduced at the time he gave his opinion. This is certainly not to say that opinions of doctors should never be obtained until all evidence has been introduced; nine times out of ten the instant situation would not arise, since it is assumed that the commission considers all evidence in reaching its determination. However, where it is not known what testimony the expert relied upon, and part of the testimony is clearly in conflict with later evidence offered, and appears relevant (from the statement of the expert himself) to the issue involved—and where the testimony of such expert is the sole basis for the com mission’s finding, we are firmly of the view that such expert should have an opportunity to review the additional evidence.
For the reasons herein set out, the judgment of the Circuit Court, affirming the commission, is reversed, and the cause is remanded to the Circuit Court with directions to reverse the commission’s finding, and remand the cause to the commission for further proceedings in accordance with this opinion.
According to Dr. Henry, this is the medical descriptive term for the weakening of the wall of an artery. “These aneurysms are of different etiology or cause, caused by different things. First, you can have a congenital aneurysm and by that I mean that the individual is horn with a weakness in the wall, of the blood vessel and this weakened area becomes ballooned out as would a weak place on an inner tube and then with the stress and the strain of life, the increase in the pressure in the blood vessel, the aneurysm ruptures. These are usually called a Berry aneurysm because when you look at them in the unruptured state they look like a little berry, a little red, say, raspberry. You also get aneurysms in arteries which are due to degenerative disease of the wall of the blood vessel. Most of these are due to arteriosclerosis which weakens the wall of the blood vessel or due to atherosclerosis of the lining of the blood vessel which weakens it and allows blood to escape in to the wall of the blood vessel and weaken it. * * * It is possible to get an aneurysm due to traumatic injuries such as a gun shot wound or a knife wound which partially severs the wall of a blood vessel and weakens it so that it subsequently dilates in the region of the injury.”
Dr. Watson explained that under the overall term “hemorrhage of the brain,” a person could, in theory, have survived for “maybe days and weeks,” but, bearing in mind the nature of the hemorrhage and the location, this could not have been true in Rhea’s case, i.e., he did not suffer the hemorrhage at 11:00 A.M. Actually, Rhea did survive for three hours, but was unconscious during the entire period of time.
Dr. Watson testified that the increased blood pressure caused by the strain of lifting cases should have receded to normal limits within a matter of from five to ten minutes after the exertion, and he stated, “whether or not it would remain high for three hours is just medically speculative, most remote and I don’t know of any experimentation that ever substantiates blood pressure staying up after three hours after a transient exertion.”
We, of course, do not mean to imply that the expert should not read the record in advance. | [
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Paul Ward, Associate Justice.
Appellant, William B. Ward, was sentenced to a term of three years in the state penitentiary for the crime of fondling a male child under the age of 14 years in violation of Ark. Stat. Ann. §41-1128 (Supp. 1961). On appeal appellant contends the case should be reversed because of three alleged errors. One, the jury was invited to let the court fix the punishment. Ttvo, the argument of the prosecuting attorney was prejudicial. Three, the court should not have permitted the introduction of testimony pertaining to prior and unrelated incidents. These alleged errors will be discussed in the order above mentioned.
One. Instruction No. 5 given, along with other instructions, when the case was submitted to the jury, reads:
“You are further instructed that if you find the defendant guilty as charged but are unable to agree upon the punishment to be imposed, you may return a verdict of guilty and leave the punishment to be fixed by the court.”
Arle. Stat. Ann. §43-2306 (1947), in pertinent part and in substance provides, that when “a jury finds a verdict of guilty, and fails to agree on the punishment to be inflicted . . . the court shall assess and declare the punishment. ...” The question then arises: When should the jurors be told they can leave to the court the responsibility of fixing the punishment—before they retire or after they find they cannot agree Í The giving of a similar instruction as it was given here has been approved by us previously. See: Knighton v. State, 210 Ark. 248, 195 S. W. 2d 47; Keese and Pilgreen v. State, 223 Ark. 261, 265 S. W. 2d 542; Downs v. State, 231 Ark. 466, 330 S. W. 2d 281. In the case of Underwood v. State, 205 Ark. 864, 874, 171 S. W. 2d 304, the court seemingly indicated a preference for the procedure followed in the ease under consideration—before the jury retired.
Appellant, obviously aware of the above decisions, contends however that the statute clearly indicates it is the province of the jury to first honestly endeavor to fix the punishment before they are informed they can leave the responsibility to the court. The reason given by appellant for his position is that it is human nature for a person to avoid making difficult decisions when he knows it is not necessary to do so. This line of reasoning seems to find some support in the recent case of Edens v. State, (January 14, 1963), 235 Ark. 996, 363 S. W. 2d 923, where, in commenting on the decision in the Underwood case, we said:
“Even so, we did not intend to state that the instruction should routinely be given in every case, and if the Underwood case has been so interpreted we take this opportunity to point out that ordinarily there is no occasion for the jury to be supplied with this information.”
Thus, it appears, we have not previously announced any required rule in this regard to guide the trial courts. So, after careful consideration, we now hold that the jury should not be told initially they can let the court impose the punishment but should be told only after they report they have reached a verdict of guilty but are unable to agree on the punishment to be imposed. We do not reverse the trial court for failing to follow this procedure in this instance because it was not aware of what we later said in the Edens case, supra.
Two. Appellant strenuously insists the jury was prejudiced by the allegedly heated argument of the prosecuting attorney, which argument we have carefully read although it is not fully abstracted. Since we have concluded that the case must be reversed and remanded because of the error later discussed, we deem it unnecessary to comment on all the objections raised by appellant to the argument.
As stated in Hall v. State, 161 Ark. 453, 257 S. W. 61, and in many other decisions of this Court, we, recognizing that jurors are men of good sense and sound judgment, have always held that a wide range must be given to the argument of counsel and much discretion must be left to the trial court. In particular, appellant here refers to certain remarks of the prosecuting attorney to the effect that he and his deputy would receive no extra pay if appellant were convicted, and that appellant’s attorney (once a deputy prosecuting attorney) would have prosecuted the appellant had the same facts been presented to him. We think the jurors were capable of assessing such arguments for what they were worth—that they had no bearing on the guilt or innocence of appellant. Consequently no reversible error has been shown.
Three. Finally it is contended the case must be reversed because the jury was allowed to consider evidence intended to prove appellant had engaged in similar unnatural sex activities with other young boys on former occasions.
The statute under which appellant was convicted provides, in all pertinent parts, that it shall be unlawful for any person with lascivious intent to place his hands on the sexual part of a male under the age of 14 years. The succeeding section fixes the punishment for violation at one to five years in the penitentiary.
Appellant, age 36, went to the Beasley home at about 9:30 a.m. to install telephones. Mrs. Beasley, who was out temporarily, had left her son Tommy, age 11 (together with his brother Terry, age 8), at the house to point out the locations for the phones. Tommy stated positively that appellant fondled him two or three times on that occasion. He was corroborated in part by Terry. Appellant denied emphatically and categorically that he in any way mistreated Tommy. There was no other direct testimony to show appellant’s guilt or innocence of the offense for which he was being tried. This situation obviously presented a clear-cut issue of credibility to the jury.
On behalf of appellant it Avas shown that he had a good reputation; that he had been post commander of the American Legion, and was now its service officer; that he belonged to the Masonic Lodge; and, that he had once served as Chapter Dad of the local DeMolay organization. On the other hand the state, evidently hoping to convince the jury that Tommy and Terry Beasley (and not appellant) had told the truth, offered testimony tending to convince the jury that appellant had, on two former occasions, indulged in similar unnatural sex relations Avith other boys.
We have concluded that the testimony relative to one of the incidents was clearly inadmissible and prejudicial, and calls for a reversal. Over appellant’s objections and exceptions a witness was permitted to testify that some four or five years previously, during a conclave of the DeMolay organization in á gymnasium at Piggott, he saw appellant engage in some acts which he thought were unbecoming; that appellant had one of the smaller boys kinda armed up, had his arm around him nudging him toward the south door, and he presumed he was loving the boy up a little bit—this didn’t continue very long— the boy’s father was present. Regarding the same occasion, another witness gave similar testimony, but neither witness saw anything approaching a violation of the statute.
We think the above testimony was most prejudicial, and we have no way of knowing to what extent it influenced the jury. It is reasonable to suppose the jury gave considerable weight to the testimony because it was given by two witnesses who, apparently, stood high in the community. One was with the Weights Division of the State Police and lived in Piggott all his life; the other was a grain broker and a member of the International Supreme Council of the Order of DeMolay, and he was also an Executive Officer of this State.
It is difficult to think of a more dangerous precedent than to sanction the type of testimony above described. It would tend to establish guilt based on suspicion alone. The jury may have attached the most lascivious motives to what could have been perfectly innocent and meaningless acts of appellant.
In respect to the other incident a different situation obtains. There, the testimony was definite and left nothing to the imagination. However, since the case may be retried, we deem it advisable to discuss a contention made by appellant here and which may be made at another trial.
In substance, appellant contends that testimony of other similar offenses is admissible only to show intent, and, that since no question of intent is presented in this case, all the testimony (regarding the previous incidents) was inadmissible. We agree that the issue of intent (on the part of appellant) is not an issue here. To sustain his point appellant relies almost entirely on what we said and held in the case of Alford v. State, 223 Ark. 330, 266 S. W. 2d 804. We said there that “our cases very plainly support the common-sense conclusion that proof of other offenses is competent when it actually sheds light on the defendant’s intent; otherwise it must be excluded.” The statement was correct as applied to the particular facts of that case, and the opinion shows it was to be so limited. It appears, however, in the Alford case and in other decisions of this Court that a different rule applies to unnatural sex cases such as in the case under consideration. In the Alford case we recognized this distinction in using the following language:
< < * íí * where the charge involves unnatural sexual acts, proof of prior similar offenses has been received. Hummel v. State, 210 Ark. 471, 196 S. W. 2d 594; Roach v. State, 222 Ark. 738, 262 S. W. 2d 647. Such evidence shows not that the accused is a criminal, but that he has (a depraved sexual instinct’ . . .” (Emphasis added.)
In the Hummel case, supra, where the Court was concerned with an unnatural sex crime, testimony, relative to similar previous acts, was introduced over defendant’s objection. There, on appeal, Ave approved the following instruction:
“You are instructed that evidence introduced by the state in this case, of a similar offense occurring prior to the offense charged in the indictment, was admitted solely for the purpose of shoAving the defendant’s intent, motive, habits and practices, and you may consider it for this purpose and this purpose only. * * * ” (Emphasis added.)
In our opinion the distinction above pointed out is based on sound reasoning. If it can be shown that a person has a depraved sexual instinct or that he has the habit of indulging in unnatural sex activities such fact would tend to corroborate other testimony that he committed the unnatural offense for which he is being tried.
Likewise, Ave believe such testimony should not be excluded solely on the ground that it is too remote in this particular case. The question of remoteness of the incidents has not been raised by appellant on this appeal, but it could be raised on a second trial. The general rule is that such testimony must not be too remote. However, as pointed out above, a case of this kind is not, in all respects, governed by the general rule. So, once it is established that a mature person has developed the proclivity to indulge in unnatural sex acts, we are not prepared or willing to say it would be erased by the lapse of 4 or 5 years.
For reasons above set out the judgment is reversed, and the cause is remanded.
Reversed and remanded.
McFaddin, J., concurs; Robinson, J., dissents. | [
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Carleton Harris, Chief Justice.
Appellants, Virgil Webb and wife, Wilma, instituted their complaint against Albert J. Miller and wife, G-race wherein it was alleged that appellees had wrongfully entered upon appellants’ property (the west 17.8 feet thereof) and had dug holes, destroyed surveyor’s markers, piled fencing materials on the premises, and deprived appellants of the use and enjoyment of their land. It was further asserted that said unlawful acts would be continued; that the appellants would sustain irreparable damage unless appellees were enjoined, and a mandatory injunction was sought to prohibit interference with appellants’ possession, and to require appellees to remove a fence which the Webbs contended was located on their premises. Appellees answered with a general denial, and further asserted,
“that a fence existed between plaintiffs and defendants for more than seven years and that these defendants have occupied and claim said lands for more than seven years; that the line fence between the parties was existing at the time plaintiffs purchased their property and that the plaintiffs are now estopped to claim any lands belonging to these defendants or to claim that the fence is not the line; that uncertainty as to the property lines existed between defendants and plaintiffs ’ predecessor in title and said latter parties agreed upon the boundaries.”
On trial, the court dismissed the complaint for want of equity, and from the decree so entered, appellants bring this appeal.
The record reflects that Miller and wife purchased lands, which included the property here in question, in April, 1956. Thereafter, in October, 1959, Miller and wife conveyed a portion of the property to A. D. Morris, using a metes and bounds description. The deed called for 200 feet running east and west, and 65 feet running north and south.
In June, 1961, Morris and wife conveyed the land to the Webbs, using the description under which they had acquired such lands from Miller. The dispute in this litigation involves 17.8 feet on the west side of the property. At the time the Millers made their purchase in 1956, a fence was located at the north end of the property which divided the Miller lands from property owned by Jack Elam, to the immediate north. To the south, a fence was erected to separate the land purchased by Morris from other Miller property immediately south of the Morris property line. The fence which is really pertinent to this litigation is to the west, dividing the present Webb property (formerly Morris) from the Miller property on the west, said fence being erected by Miller in 1957, prior to the time of the conveyance to Morris. The Webb and Miller property is bounded on the' east by the highway. Appellants contend that they are due to have 200 feet running east and west, as called for by their deed, but the fence erected on the west by Miller, running north and south, cuts their east and west footage to slightly over 182 feet.
Don Kemp, engineer and surveyor, testified on behalf of appellants. He used the description in the deed from Morris to Webb in making the survey, and intro duced a plat, based on the results of such survey. This plat sustains the position taken by Webb, since it shows that Webb’s east and west line extends 17.8 feet west of the fence erected by Miller. No surveyor testified on behalf of appellees. Miller testified that he had previously had a survey made relative to the north and south property lines, but the west line was accepted as a proper line by Morris: “That was accepted as a line because that line was there before Mr. Morris and I made any deal. Had been established by me, and Mr. Morris accepted that as a line.” The witness testified that he owned the area west of the fence: ‘ ‘ There is 410 feet by 210 feet back there.” He stated that before he erected the west line fence, he “measured from the edge of the highway back to where we put the fence and established a 200 foot line back there and put it.” In explaining the difference between the fence location and the property line presently claimed by the Webbs, the witness said, “There’s a part of this Webb property in the highway, as there is with mine, part of it is in the highway. ’ ’ He testified that in measuring the 200 feet west, “We had a surveyor’s marking to go by, as far as east and west is concerned.” However, he did not admit that Webb was entitled to 200 feet. Miller stated that he had gotten a Mr. Shreve to make a survey, “and he started to survey and he come out with the wrong answer and he quit.” He further said that after the sale to Morris, he and the latter measured 65 feet, north and south, but Morris had nothing to do with measuring the 200 feet east and west.
A. D. Morris, who had purchased from the Millers, and subsequently conveyed the same land to the Webbs, testified that Miller told him that the west fence was the west line of the property; he verified Miller’s statement that they measured 65 feet from north to south, but that no measurement was taken of the supposed 200 feet running east and west. The witness testified that he never did question the footage from east to west, and that no difficulty arose between him and Miller. He stated that under the deed he was supposed to get “200 x 65. I was well satisfied with it myself. I never did question it or try to find out. ’ ’ Further, from the evidence:
‘ ‘ Q. What was the statement, if any, between yourself and Miller as to the boundaries of your property, particularly the west line of your property?
A. Just the west fence was the boundary line, the property line, and I—
Q. How do you know?
A. I say the west fence, I took it as the line, and I told him I would put the upper chain-link fence on the north if he wanted to put one on the south and we would have it all fenced in, and he said he would. So, I told the gentleman from Springdale and that’s what happened. And I took the fences as the line, now, but have it surveyed and established, I never did do it and had nothing to do with that whatever. That’s the way I bought the place and the way I sold it.
We are of the opinion that, under our cases, this testimony does not establish an agreed boundary line. In Clements v. Cox, 230 Ark. 818, 327 S. W. 2d 83, this court said:
¡ í íí * * appellees ’ witnesses testified that they had never heard of any agreed boundary line; admittedly the deed itself does not contain any provision that the land purchased was other than that contained in the description, nor does the record reflect that appellees had any notice of appellants’ claim of an agreed boundary line at the time they purchased the property. ’ ’
In Brown Paper Mill Co., Inc. v. Warnix, 222 Ark. 417, 259 S. W. 2d 495, we stated,
“We agree with the chancellor’s conclusion that the mere existence of the fence did not affect the title to the area in controversy. The record does not show that there was ever an agreement upon the fence as the boundary line. A few witnesses testified that they understood the location of the fence to represent the line, but their belief was based merely on the fact that the fence was there and hence added nothing to the physical facts. ’ ’
In Barham v. Gattuso, 216 Ark. 690, 227 S. W. 2d 151, likewise
“Second, it is contended that the parties have by their conduct established the partition as the boundary. Neither the deeds nor the lease referred in any way to the partition; the land was described simply as the north half of the lot. In this respect the case differs from McCall v. Owen, 212 Ark. 984, 208 S. W. 2d 463, where the deeds referred to a fence that was not actually on the true line. We held that the grantees were bound by this reference; but the rule is different when the conveyance uses only a legal description, and it is later found that the fence or other monument is not accurately placed. (Citing cases.) In the latter situation the case is like any other in which adjoining landowners, through ignorance rather than by agreement, recognize an erroneous common boundary. Possession must then be adverse and must continue for the statutory period of seven years in order to ripen into title.”
Finally, as applicable in this case, in Carney v. Dunn, 221 Ark. 223, 252 S. W. 2d 827, we said:
“We conclude that when all the evidence is considered, the finding of the trial court that appellants had failed to establish the hedge as the agreed boundary line was not against the preponderance thereof. While Mr. LePlant, Sr., owned both lots, he clearly had the right to establish the true line between them to be the center line as platted and to so convey them under the recorded plat description without exceptions. This we hold the preponderance of the testimony shows he and his heirs did. The parties were bound by the descriptions in their deeds.”
Let us apply these holdings to the facts before us. There is no evidence that Mr. and Mrs. Webb had ever heard of any agreed boundary line, nor that they had any notice of Miller’s claim of such an agreement, and, of course, the deed does not contain any provision that the land purchased was other than contained in the description. As pointed out in Brown Paper Mill, the mere existence of the fence did not affect the title to the area in controversy. The Webbs testified that they saw the fence, but thought nothing about it, considering that they were getting 200 feet. As stated by Mr. Webb, “I was more or less going by what Mr. A. D.'Morris told me. Mr. Morris never showed us the property.” Morris, admittedly, never did show the land to the appellants. “I just told them I had a deed that was 65 x 200 and I sold them what I had, see. In other words, I give them a deed to the — the same kind of deed that I had.”' Nor did Morris ever testify that there was any dispute between him and Miller as to the proper line.
Actually, it appears, to use the language in Barham v. Gattuso, supra, that Morris, “through ignorance rather than by agreement” recognized an erroneous boundary. As hereinbefore set out, he simply, upon Miller’s stating that the fence constituted the boundary, “took it as the line.” In other words, Morris merely “acquiesced.” Of course, acquiescence, for the statutory period, will ordinarily confirm a boundary line. In Seidenstricker v. Holtzendorff, 214 Ark. 644, 217 S. W. 2d 836, we said,
“Acquiescence, by owners of adjoining lands, in a boundary line, as shown by a division fence, for more than seven years will ordinarily confirm the boundary line as thus located, even though the fence may not be placed on the true line between the tracts.”
Here, however, Morris did not purchase the property until 1957; in fact the- fence was not even constructed by Miller until 1956, so there could have been no acquiescence for seven years. Let it also be remembered that the Millers, prior to the conveyance to Morris and wife (and the subsequent conveyance to the Webbs) owned the entire tract, and could, after a proper survey, have conveyed, the intended amount of land to Morris, or, at least, have mentioned the fence in the conveyance. This is all the more reason appellees should be bound by the description in the deed.
Looking at the other allegations in the answer, we find the claim of adverse possession. This claim must fail for the reason pointed ont in the preceeding paragraph.
The answer also alleges that appellants are estopped to claim the footage in question because the fence was in existence at the time they made the purchase. Likewise, there is no merit in this contention, as we have previously pointed out that no one advised the Webbs that the fence supposedly marked an agreed boundary line, or that they were not entitled to actually receive all the land called for by their deed. The record does not reflect that they had notice of any kind or nature that such a contention would be made. For the reasons herein set out, the decree is reversed, and the cause is remanded to the Washington Chancery Court with directions to enter a decree not inconsistent with this opinon.
This fence was subsequently replaced by Morris after he purchased the land.
This statement had reference to a survey made about 3 years previously at a time when Miller was endeavoring to establish his north property line. He measured from a stake which the surveyor had set out in establishing the north line.
Appellees have not filed any brief with this court. | [
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George Eose Smith, J.
In 1960 the appellees brought suit against the appellant, seeking to have a refinancing agreement declared to be in fact a mortgage. The case was tried on June 29, 1961. At the end of the hearing the chancellor announced his decision in favor of the plaintiffs and allowed twenty days within which they might redeem the land, by paying the debt with interest. The chancellor made a docket entry summarizing his decision, but he stated orally that the interest would have to be calculated by counsel.
The necessary calculations were made promptly, and a final decree was prepared. It was signed and dated by the chancellor on July 3, 1961, which was the first day of a new term of court. The decree allowed the debtors twenty days in which to redeem their property by paying the sum of $51,779.19, plus interest from the date of the decree. It was further provided that if the plaintiffs failed to redeem the property the lien would be foreclosed, and a commissioner was appointed to sell the land at public auction.
The plaintiffs paid the required amount of money into the registry of the court on July 21, 1961. The defendant refused to accept the tender and took an appeal. We affirmed the decree upon the only issue that was argued, holding that the chancellor was right in declaring the refinancing agreement to be a mortgage. Helmerich v. Lowrance, 235 Ark. 280, 359 S. W. 2d 447.
After our affirmance the plaintiffs asked the chancellor to enforce his decree by contempt proceedings. The defendant contended that the deposit in the registry of the court on July 21 had come too late, since it was more than twenty days after the chancellor announced his decision on June 29. The trial court rejected this contention, holding that the twenty days ran from the entry of the formal decree on July 3. This is an appeal from a decree vesting the title in the plaintiffs and declaring the mortgage debt to be satisfied in full.
The appellant now argues that the original decree, granting twenty days for redemption, was rendered on June 29, that the chancellor was without power to extend the time after the term of court had lapsed, and that therefore the court was without jurisdiction to enforce an offer of redemption made more than twenty days after June 29, 1961.
This argument is unsound. In the first place, the issue is res judicata. The plaintiffs, three days after having paid the money into court, filed a petition asking that their right of redemption be enforced. The appellant resisted the petition upon the precise ground now urged— that the deposit had come too late. On July 27, 1961, the chancellor specifically found that the twenty-day period ran from July. 3, the date of the formal decree. The defendant filed a notice of appeal from this order and also sought a writ of prohibition. In denying the application for prohibition we said: “Prohibition is not to be used as a substitute for an adequate remedy of appeal. Whether the date of the decree was June 29th or July 3rd is a disputed question. The Trial Court held on July 27th that the twenty days for tender ran from July 3rd rather than from June 29th. If the Court was in error, such ruling may be corrected on appeal.” Helmerich v. Butt, 233 Ark. 795, 348 S. W. 2d 878. Thus the appellant was warned that the issue should be raised by appeal. Yet, despite the fact that notice of appeal had been given both with respect to the decree of July 3 and the order of July 27, the question decided by the latter order was not argued upon the first appeal. Under our settled rule the affirmance was conclusive not only of the issues presented but also of those that might have been presented. Storthz v. Fullerton, 185 Ark. 634, 48 S. W. 2d 560.
Secondly, the appellant’s contention is not sound upon its merits. The Benton Chancery Court had in effect a standing order that provided in substance that docket entries would be effective only until superseded by the formal decree, which would then constitute the order of the court. In the same vein, the chancellor’s oral decision of June 29 was known to be incomplete, since the amount of the interest due had still to be computed. The parties certainly knew that the court’s final word was being deferred until the preparation and approval of the decree. In the circumstances we think the court had the power to act even in the new term. See Wright v. Ford, 216 Ark. 55, 224 S. W. 2d 50.
Affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This case arises because a passenger was injured in a taxicab. The appellee, Black & White, Inc., is an Arkansas corporation, engaged in the operation of taxicabs in the City of Little Rock. On the night of October 24, 1958, Mr. and Mrs. W. C. Love, visitors in Little Rock, along with three other married couples, had a late supper at a restaurant located on Thirteenth Street in Little Rock, and all decided to return to their hotel. Mr. Love called Black & White for two cabs. In a few minutes when the first cab arrived at the restaurant, the driver inquired of Mr. Love if he was the person who had ordered two cabs, and Mr. Love responded in the affirmative. The four ladies entered that cab, to be transported to the hotel; and the four men followed in another cab which came in a few seconds. En-route to the hotel the cab occupied by the ladies was involved in a traffic mishap and Mrs. Love was injured.
Mr. and Mrs. Love, as plaintiffs, filed action on July 27, 1961, against Black & White, alleging that Mrs. Love was injured because of the negligence of the driver of the cab in which she was riding as a passenger, and that both Mr. and Mrs. Love suffered damages because of her injury. The defendant filed a general denial on August 11, 1961. After the expiration of three years from the date of Mrs. Love’s injury, there was an unsuccessful attempt by Mr. and Mrs. Love to add Checker Cab Company as a defendant. The sole defendant, Black & White, Inc., claimed, inter alia, that it was not a Black & White cab in which Mrs. Love was injured. Jury trial resulted in a verdict and judgment for Mr. and Mrs. Love for a total of $2,298.00; and Black & White brings this appeal, urging ten points, which we group in suitable topic headings.
I. Admission Of Evidence, (a) The Court permitted Mr. Love to testify that he looked in the telephone directory and found the telephone number for Black & White and called that number and ordered two cabs to be sent to the restaurant. The appellant claims the admission of this evidence was error. We hold against the ap pellant on this point. Certainly Mr. Love’s testimony, that he ordered two cabs from Black & White, had a direct bearing on the case. Mr. Love testified that he placed his wife in a Black & White cab. Mrs. Love became a passenger in the cab in which her husband placed her. She did not have to personally order the cab. Her husband did that for her; and she testified that she was injured while a passenger in a Black & White cab in which her husband had placed her.
(b) Mr. Love was permitted to testify that when the first cab arrived at the restaurant, the driver inquired of Mr. Love if he was the party who had ordered two cabs. We find no error in the admission of this evidence. Mr. Love’s testimony, as to the inquiry made by the driver, was cogent evidence that the cab came in response to Mr. Love’s order. Unless the driver knew of the order which had been made to Black & White for two cabs, the driver could hardly have made the inquiry which he did.
(c) The police officer, who investigated the traffic mishap while both vehicles were at the scene, testified that his report, made at the time, showed that the cab was a Black & White cab. We find no error in the admission of this evidence. The mishap occurred on October 24, 1958, and the witness was testifying on September 26, 1962. He had a right to refresh his memory and refer to his official report made at the time of the mishap. The defendant had the right to cross examine the witness, as was skillfully done, but such right of cross examination did not render erroneous the admission of the testimony on direct examination.
(d) Anticipating that the defendant would introduce evidence — at it did — that Checker Cab Company was an entirely separate corporation from Black & White, the plaintiffs, over the objection of the defendant, were allowed to prove:
“. . . that there is one radio dispatcher for both the Checker Cab Company, Inc. and Black and White, Inc., who dispatches the nearest cab to the scene where the customer is to be picked up whether said cab be a Checker or a Black and White cab, so that it would be possible for a person calling Black and White Cab Company to be picked up by a Checker cab . . . There is one switchboard located at 114 East Markham which receives all incoming calls for both Checker Cab Company, Inc. and Black and White, Inc. and which is operated by one person. Both the radio dispatcher and the switchboard operator were on the payroll of Black and White, Inc. only on October 24, 1958 and for a long period of time before that.”
The Court allowed the foregoing quoted testimony; and we find no error committed. The plaintiffs were making an effort to pierce the fiction of the corporate entities of Black & White, Inc. and Checker Cab Company ; and the way the two corporations operated — like a joint venture — was a cogent fact which the plaintiffs were entitled to show.
II. Remarles Of The Trial Judge In The Presence Of The Jury. The defendant introduced evidence to the effect that there were in fact three corporations: (1) Capital Auto Leasing & Renting Corporation, which actually owned the motor vehicles and leased them to either of the other two corporations; (2) Black & White, Inc., which operated a taxicab business; and (3) Checker Cab Company, which also operated a taxicab business. Then on rebuttal the plaintiffs offered in evidence the entire stipulation heretofore mentioned in the footnote in Topic II, supra. The facts had been stipulated, but the defendant had all the time preserved its objection to admissibility. This stipulation covered, inter alia: (1) the identity of the shareholders and officers of each of the three corporations; (2) the division of the.salaries of the officers between the three corporations; (3) “That it is the nature of the business of both Checker and Black & White cab companies for drivers to drive either company’s cab when the particular cab that has been assigned to them is being repaired or maintained”; (4) that the officers of the three corporations are identical; (5) that for several months prior to this accident all the cab drivers simply rented their cabs for $10.00 for twelve hours, and there was no written contract between the companies, and the cab drivers’ rental agreement was a day to day proposition.
When the plaintiffs offered the stipulation in rebuttal, the defendant questioned the relevancy and/or materiality of the stipulation, and the Court said: ‘ ‘ gentlemen, I believe I will let that stipulation be introduced in the record without benefit of it going to the jury because I think what the Court is going to tell the jury to some extent renders this testimony which has just been introduced, and this stipulation, immaterial.”
The appellant complains that the language of the Court, as above quoted, was a comment on the weight of the evidence. But under the facts in the case at bar, we hold against the appellant’s contention. The Trial Court was merely telling the attorneys that his instructions would render the stipulation immaterial as evidence for the jury to consider, which was true. The instructions given by the Trial Court rendered his remark entirely harmless.
III. Instructions. We come then to the hig issue in this case, and this relates to the instructions. The appellant here complains of four of these instructions; but what we say about Instruction No. 4 will dispose of appellant’s arguments on all four. The Court’s Instruction No. 4 reads:
“You are instructed that if you find from a preponderance of the evidence that on the 24th day of October 1958, at about 11:00 P.M., the plaintiff, William C. Love, called the Defendant, Black & White Cab Companjr, Inc. and requested that it send two cabs to the Brown Jug Restaurant for the purpose of transporting the plaintiffs as passengers in the cabs from said restaurant to their hotel, in Little Rock, and if you further find that pursuant to said call, if any, the Black & White Cab Company dispatched two cabs to the designated address and that one of such cabs, if any, so sent, undertook to transport the plaintiff, Mrs. Love, to her hotel, you are told that the question of the ownership of the cab would be immaterial since under such findings, if any, by you, the Black & White Cab Company would be legally responsible for a failure, if any on the part of the driver of the cab so dispatched to exercise the highest degree of care toward a passenger in the cab.”
In effect, by this instruction the Court told the jury that if Mr. Love called the Black & White Company and ordered two taxicabs, and Black & White elected to send a Checker cab, then Black & White would be liable for the acts of the driver of the Checker cab, just as it would have been liable for the acts of the driver of a Black & White cab. We find no error in the said instruction under the peculiar factual situation shown in this case (and we have not been able to find another case exactly the same). Whether the Trial Court gave the instruction on the theory of joint venture, or on the theory of piercing the entity of the corporate fiction, is not disclosed by the record; but either theory would have justified the instruction.
It was shown here that the two corporations (Black & White and Checker) were so interwoven that there was only one radio dispatcher for both corporations; and the dispatcher sent the nearest cab to where the customer was to be picked up, regardless of whether it was a Checker cab or a Black & White cab. When Mr. Love ordered two cabs from Black & White (as the uncontradicted evidence shows that he did) then Black & White certainly engaged in a joint venture with Checker in sending a Checker cab, if such was actually sent. The operator on the switchboard and the radio dispatcher for the cabs were both on the exclusive payroll of Black & White at the time here involved. Thus the evidence showed a joint venture between the two corporations.
Furthermore, the two corporations were owned by the same stockholders, operated by the same officers, and the cabs were interchanged. It would be putting fiction above right and justice to allow Black & White to hide behind the corporate entity of Checker in this case. In Rounds and Porter Lbr. Co. v. Burns, 216 Ark. 288, 225 S. W. 2d 1, we said: “It is only when the privilege of transacting business in corporate form has been illegally abused to the injury of a third person that the corporate entity should be disregarded.” See also Plant v. Cameron, 228 Ark. 607, 309 S. W. 2d 312.
There are a wealth of cases involving liability of taxicabs claimed to be owned by one party and driven by another, and to discuss these cases would unduly extend this opinion. But the general trend of the holdings seems to be summarized by the Supreme Court of Florida in Economy Cabs v. Kirkland, 174 So. 222:
‘ ‘ One of the first principles of hornbook law we were taught in the law school was that for every wrong the law provides a remedy. If the law is to be circumvented by litigants as proposed here, then we were taught a futile lesson. They should not be permitted to parade under a flag of truce to garner a profit and then raise the black flag when called on to make restitution for damage perpetrated. Callas v. Independent Taxi Owners’ Ass’n, 62 App. D. C. 212, 66 F. (2d) 192; certiorari denied, 290 U. S. 669, 54 S. Ct. 89, 78 L. Ed. 578; Vance v. Freedom Oil Works Co., 113 Pa. Super. 280, 173 A. 496; Bank of U. S. v. Dandridge, 12 Wheat. (U. S.) 64, 6 L. Ed. 552. This rule applies to and governs all persons to whom defendant furnished transportation, including the plaintiff and those who deal with Economy Cabs as a corporation. Third parties who happen to own a cab and use it in the name of the company at the call of the company and under the colors of the company will be treated as the company. Anderson v. Yellow Cab Co., 179 Wis. 300, 191 N. W. 748, 31 A. L. R. 1197; Burke v. Shaw Transfer Co., 211 Mo. App. 353, 243 S. W. 449; Rhone v. Try Me Cab Co., 62 App. D. C. 201, 65 F. (2d) 834.”
Under the peculiar facts in this case we find that the Court was justified in giving the Instruction No. 4; and finding no error in the entire case the judgment is affirmed.
George Eose Smith, J., dissents.
The issue of whether the driver of the taxicab was negligent is not presented on this appeal.
The parties had entered into a lengthy stipulation concerning the two corporations (i. e., Black & White, Inc. and Checker Cab Company), the identity of the stockholders, the blending of businéss by the two corporations, etc., etc. The stipulation was as to facts, with defendant preserving its objection as to the admissibility. The Court admitted into evidence to the jury the portion shown in the quotation above. The matter of this stipulation is further discussed in Topic II, Infra.
See Martin v. Weaver (Tex. Civ. App.), 161 S. W. 2d 812; and see 48 C. J. S. p. 809 et seq., “Joint Adventures” § 2 et seq.
On piercing the fiction of the corporate entity in taxicab cases, see particularly Callas v. Independent Taxi Owners, 66 F. 2d 192.
Our own case of Adams v. Summers, 222 Ark. 924, 263 S. W. 2d 711, has only an indirect bearing on the point here; but see Annotations in 120 A. L. R. 1351 and 131 A.L.R. 797, entitled, “Relation between taxicab company and drivers or owners of cars not owned by company, as regards responsibility for injury or damage.” See also Rhone v. Try Me Cab Co., 65 F. 2d 834; Assoc. of Independent Taxi Operators v. Kern (Maryland), 13 A. 2d 374; Mull v. Colt Co., 31 Federal Rules Decisions 154; and 13 C. J. S. p. 1314, “Carriers” § 701. | [
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Sam Robinson, Associate Justice.
The issue in this case is who shall suffer the financial loss caused by the confiscation of an automobile by the government — the owner of the car or the insurance company who had issued a policy covering the loss of the car.
The case was originally filed by appellee, United States Fidelity & Guaranty Company, against the appellant, Mary Ellen Moore, alleging that she had purchased the automobile in question and as a part of the consideration had executed her title retaining note in the sum of $1,042.80; that the Searcy Bank had been a holder in due course of the note; that.the insurance company had issued a liability and physical damage policy on the car; that the policy provides, in effect, that the bank would be entitled to recover on the policy for the loss of the car, notwithstanding such loss may have been due to an unlawful act of the appellant, Mary Ellen Moore.
The complaint alleges that the automobile had been confiscated by the U. S. Government; that the insurance company had paid the bank the balance of $875.36 owed on the note and had been subrogated to the rights of the bank on the note, and prayed judgment against appellant in that amount. Mary Ellen demurred to the complaint; the demurrer was sustained; the insurance company appealed to this court. U. S. Fidelity & Guaranty Co. v. Moore, 233 Ark. 703, 346 S. W. 2d 524.
In that appeal, appellee Moore contended that the trial court was correct in sustaining the demurrer because the complaint did not allege any act on her part that would preclude her from recovering for the loss of the car under the terms of the policy of insurance. We reversed idle judgment, pointing out that “The settled law relative to demurrer is that when the facts stated in a complaint with every reasonable inference deducible therefrom constitute a cause of action, the demurrer should be overruled. ’ ’
The complaint alleges that “agents of the Alcohol and Tobacco Tax Division of the U. S. Treasury Department confiscated the heretofore described automobile. Pursuant to said confiscation, said Federal Agency legally sold said automobile and retained the proceeds from the sale.”
It was felt that this allegation was sufficient against a demurrer; that there was a reasonable inference deducible from the complaint that Mary Ellen was charged with being guilty of using the car in a manner that might preclude her from recovering on the policy of insurance for its loss. We cited several cases as holding that the Federal Courts would not declare a forfeiture unless there was guilty knowledge imputable to the owner of the forfeited property. Actually, the cases cited deal with situations where the owners of forfeited property were attempting to prevail upon the courts to set aside the for feiture on authority of U. S. C. A., Title 18, Sec. 3617. The cited cases point out that a forfeiture can not be set aside where there is guilty knowledge on the part of the owner, not that there must be guilty knowledge before there can be a forfeiture. Guilty knowledge is not necessary to a valid forfeiture. U. S. v. One 1942 Plymouth Sedan Automobile, 89 F. Supp. 884; U. S. v. One Plymouth Coupe, 88 F. Supp. 93; Busic v. U. S., 149 F. 2d 794.
It must be admitted that our opinion in the first appeal is subject to the construction that Mary Ellen could not recover because the automobile had been confiscated by the Federal Government. The trial court, therefore, adopted that construction and held that the order of forfeiture in the Federal Court was res judicata of the question of whether Mary Ellen is entitled to recover on the insurance contract for the loss of the car.
The action in Federal Court was against the automobile — an action in rem. Waterloo Distilling Corp. v. U. S., 51 Sup. Ct. 282; Florida Dealers & Growers Bank v. U. S., 279 F. 2d 673. Mary Ellen was not a party to the proceeding in Federal Court. The doctrine of res judicata is therefore not applicable. Timmons v. Brannan, 225 Ark. 220, 280 S. W. 2d 393; Thomas v. McCullum, 201 Ark. 320, 144 S. W. 2d 467; Seaboard Finance Co., et al v. Wright, Admx., 223 Ark. 351, 266 S. W. 2d 70.
The issue of whether appellant can recover on the policy of insurance has not been decided on its merits. The judgment is therefore reversed and the cause remanded for a new trial.
Ward, J., dissents. | [
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Frank Holt, Associate Justice.
The appellee, Quincy Harris, by his next friend, Odell Barrier, brings this action against the appellants to establish his claim that he is the sole and only heir at law of the testator, James Harris, and as a pretermiteed child he is, therefore, entitled to inherit all of his estate, subject to the dower and homestead rights of decedent’s widow. In his only will, dated in 1953, James Harris devised a life estate in all of his real estate to Ella Harris, his wife [who pre-deceased him], and upon her death he devised forty acres in fee to his foster son, the appellant Lee Andrew Harris, and then the remainder to the other appellants, in this manner:
“To my children, Jesse Harris, Roosevelt Harris, and Annie Bell Harris all the rest and remainder of my real estate in fee simple, as equal tenants in common.” In 1958 Ella Harris died and thereafter James Harris married the appellant, Lettie Harris. In 1961, when James Harris died at 82 years of age, he had not changed any of the provisions of this will, although he had the county and probate clerk, who had the will in his office, to read it to him about seven months before he died.
The appellee, Quincy Harris, contends that appellants, Annie Bell Harris Shears, Jesse and Roosevelt Harris, are not legitimate children of James Harris. On the other hand, the appellants question that Quincy Harris is a legitimate child of James Harris. The facts surrounding this litigation occurred over a period of approximately 68 years. The appellee, who is a resident of Mississippi, claims that James Harris was married to a Mehalie Hudson in Mississippi, and he is the only child of that marriage. He was born there in 1895, or when his father would have been 16 years of age. Quincy produced witnesses in support of the validity of this marriage and his parentage. There is no marriage certificate supporting this marriage. According to appellee, James [Jim] Harris abandoned him and his mother and came to Arkansas in 1903, or when appellee was eight years of age. Appellee presented evidence that Jim established contact with him beginning about 1948 and from then until Jim died in 1961 he visited him in Mississippi several times and Quincy visited him in Arkansas. There is evidence that James Harris acknowledged to witnesses, and in letters to Quincy that Quincy was his son. James was illiterate and these letters were written by his teenage granddaughter.
The appellants, Roosevelt Harris, Jessie Harris, and Annie Bell Harris Shears, all born in Arkansas, also contend that James Harris is their father. Annie Bell, who was born in 1898, testified that she understood James Harris to be her lawful father and that he came to Arkansas and married Ella Moore, her mother, no later than 1895. Jesse was born in 1902 and Roosevelt about 1904. One witness testified that he first met James Harris in Arkansas in 1900; that he was present in 1904 during a church trial of Ella Moore on charges of immorality when she testified that James Harris was the putative father of Jesse and her expected child [Roosevelt] ; that Jim Harris escorted Ella to the church court that night and there said “that those two kids was his kids and that he would marry her. And they married in ’04. And they was married by a preacher by the name of H. M. Townsend in the home of the bride.” There is no marriage certificate to support this marriage either. It is undisputed that Jim and Ella Moore Harris lived together as husband and wife from about 1905 until Ella died in January, 1958 and, further, that as husband and wife they reared Annie Bell, Jesse and Roosevelt as their own children. During this interval Jim acquired the lands in litigation.
It is admitted that Jim Harris is not the father of Lee Andrew Harris, the foster son. In 1919 Jim and Ella brought into their home Lee Andrew at five weeks of age who was the son of a neighbor family. In the community Lee Andrew was known, and so designated in Jim Harris’ will, as a foster son. He was reared and treated by them as such a child.
The appellants, Annie Bell, Jesse, Roosevelt and Lee Andrew, while growing up in this family, assisted Jim and Ella Harris in the farming and maintenance of the property. It appears that Roosevelt aided in acquiring some of the land which Jim owned at the time of his death.
James Harris died on March 18, 1961. He owned 250 acres of land in Lee County which is the land involved in this litigation. Quincy Harris, with two carloads of his family and relatives, attended James Harris’' funeral services on March 26, 1961. The next day the appellee and appellants went to the courthouse where the will was deposited with the county and probate clerk and had the will read to them and other members of their families. This group, consisted of twelve or fourteen people. It was then discovered that Quincy’s name was omitted from the will. Thereupon, the appellee, the appellants, and their families held a conference among: themselves. On Quincy’s demand for a part of the estate, or some of the “dirt”, they reached an agreement and went directly to a lawyer’s office where they asked him to draw the necessary deeds to effectuate their compact. The next day, on March 28, 1961, the appellee, Quincy Harris, with several of his children present, met the appellants, Roosevelt Harris, Jesse Harris and Mabel Harris, his wife, Annie Bell Harris Shears, Lee Andrew Harris and Flora Mae Harris, his wife, and the widow, Lottie Harris, in the lawyer’s office and exchanged six partition deeds among themselves dividing the 250 acres. According to these deeds, Quincy was alloted 20 acres, Lettie 10 acres, and the balance of the land was divided according to the tenor of the will, namely; Lee Andrew, 40 acres, Annie Bell, 60 acres, Jesse, 60 acres, and Roosevelt, 60 acres. The deeds were duly recorded.
On June 15, 1961, the appellee, Quincy Harris, filed suit to set aside these deeds and have the title to the 250 acres of land quieted in him subject to the dower and homestead rights of the widow, Lettie Harris. In his complaint the appellee contends that he is the sole and only legitimate child of Jim Harris; that none of the appellants, Roosevelt, Jesse, Annie Bell, and Lee Andrew, are legitimate children of Jim Harris; that as a pretermitted child he is, therefore, entitled to all of the estate; that the deeds executed by him are void because he was incompetent when he made them and, further, they were partition deeds and invalid because the appellants are not co-tenants.
The appellants denied his allegations and contend that they are legitimate children of Jim Harris and that the deeds are valid in every respect. Appellants pray that their title to the land described in the respective deeds be quieted in them. Upon a trial the Chancellor found that Quincy was the only legal child or heir of Jim Harris and a pretermitted child; that the appellants, Annie Bell Harris Shears, Jesse Harris and Roosevelt Harris are not the children or heirs of Jim Harris as they were in being when he came to Arkansas from Mississippi; that none of the appellants were legally adopted by Jim Harris and that the partition deeds should be cancelled and set aside because, first, they were partition deeds only and therefore vested no title in appellants because they were not co-tenants and, secondly, that Quincy Harris was incompetent at the time of the making of the deeds. The court cancelled the deeds and quieted the title to the lands therein described in the appellee subject to Lettie’s dower rights. From this decree the appellants bring this appeal.
For reversal the appellants contend that the trial court erred in finding that Quincy Harris was the sole and only heir of Jim Harris and that Quincy was a pre termitted child; that the trial court erred in finding that none of the appellants was an heir of Jim Harris; that the trial court erred in setting aside the deeds on the grounds of incompetency and lack of consideration. Also, that the decree provided only for Lettie’s dower interest and did not provide for her homestead rights.
In chancery cases we review and determine appeals de novo, Nolen, et al, v. Harden, et al, 43 Ark. 307. The appellee attempts to avoid the settlement deeds made in this case on the basis of being incompetent on March 28, 1961, when he signed these deeds and accepted one partitioning and dividing the property in question. To discharge the burden of proof of showing his incompetency, the testimony of Dr. Moore, a general practitioner where appellee lives in Mississippi, was introduced by deposition. He testified that he had administered to the appellee as a family physician before and after March 28,1961, Avhen the deeds were signed by the appellee. Dr. Moore testified that the last time he saw the appellee before March 28, 1961, Avas on November 25, 1960, and the nest time be observed Quincy was on November 13, 1961. Thereafter, he saw him November 28,1961 and on March 13, 17 and 21, 1962. Quincy became his patient the first time in August, 1960. In November, 1960, Quincy was. hospitalized due to a foot infection and pneumonia. Dr. Moore described him as a nursing problem, confused and forgetful. He testified that his confusion varied and Quincy appeared about normal at times and at other times quite abnormal during hospitalization. He described Quincy’s condition as being a fairly typical case of early senile arteriosclerosis dementia. He testified :
“In my medical opinion I do not feel that Quincy was competent at any time during the period of my observation. No day was different from any other.” Other witnesses testified that at times appellee appeared confused,, agitiated, forgetful, suspicious and had threatened members of his family.
The true test of Quincy’s competency in this case is. what was his mental capacity or competency Avhen he signed the deeds on March 28, 1961. No witness who observed him on that date testified that Quincy appeared incompetent then. On the contrary, the lawyer who drafted and explained the deeds and his secretary, who notarized the deeds, observed no incompetency about appellee on March 27 or 28,1961. A Reverend Hart testified that he was with the group at the reading of the will, the conference thereafter, attended with them the meeting-in the lawyer’s office, and that Quincy “talked with good judgment.” As stated, Quincy returned the next day with members of his family to consummate this agreement. Thus, he, with his children, had until the next day to reflect on his rights and the settlement of them by these deeds. No objection was ever made by appellee or anyone on either of these days as to his competency. Appellee signed the deeds in the presence of members of his family, it appears, by touching the pen and his daughter signing- his name.
More than a year later, in May, 1962, when this cause was tried, the appellee, claiming to be incompetent, appeared as a witness in behalf of. his claim of parentage. A review of his testimony reflects that he could remember distant and recent events. He recalled going to the lawyer’s office and signing the deeds; he testified that James Harris was his father and he remembered seeing- him when he was eight years old and the last time he remembered seeing him was when he died and he attended the funeral. Appellee testified he was about seventy years of age; he knew his mother’s name; that Jim Harris told him, about three years before he died, that he owned 250 acres; that they had exchanged visits; that he was acquainted with the appellants; that he had no education and could not write; he remembered and identified various acquaintances in Mississippi; he remembered going to the courthouse and listening- to the reading of the will; he remembered business transactions such as the purchase of a car in 1955; that he is presently indebted to Odell Barrier; and, further, that he had made an effort to sell the land which he had acquired by this questioned deed.
There is a presumption of law that every man is sane, fully competent and capable of understanding the nature and effect of his contracts. The burden of proving incompetency rested with the appellee, since he seeks to void the signing of these deeds. In Hunt v. Jones, 228 Ark. 544, 309 S. W. 2d 22, this court said:
‘ ‘ Since the sanity and mental capacity of Miss McCray to make the deeds in question is presumed, the burden rested on the appellants to show her mental incapacity to execute them by a preponderance of the evidence. Gibson v. Gibson, 156 Ark. 528, 246 S. W. 845. As this court said in Pledger v. Birkhead, 156 Ark. 443, 246 S. W. 510: ‘The familiar principles of law applicable to cases of this kind have often been announced by this court. If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him.” [Citing cases]
In the Hunt case, Miss McCray had executed two deeds, one in 1953 and one in 1954, which conveyed property owned by her. In 1954, at the age of 86, she died a few months after signing the last deed. Numerous collateral heirs attempted to have these deeds cancelled on the ground of her mental incompetency. Miss McCray also suffered from the disease of arteriosclerosis. Sometimes her mind was clear and at other times she was noisy, belligerent, and mentally confused. Her deeds were held valid.
After a careful review of the evidence in the case at bar we think the appellee has failed to meet the burden of proof cast upon him to refute the presumption of his sanity or competency by a preponderance of the evidence. Therefore, the deeds are valid on that issue.
As to the remaining points, we prefer to rest our decision in this case upon the well-known family settlement doctrine which is a favorite of the law. According to the evidence in this case these partition deeds were in settlement of the estate based upon the appellee’s claim to part of the property when he discovered, upon a reading of the will, that his name was omitted. Jesse Harris testified that the appellee, Quincy Harris, desired a division of the property. No witness disputed the following quoted testimony by Jesse and Annie Bell. Jesse testified as follows:
“Q. Well, how did you go about doing that?
A. He said he wanted to know what he was going to get before he went home.
Q. He wanted to know what he was going to get before he went home?
A. That’s right; yes, sir. I asked ‘Well, what do you want?’ When I first asked him how much money he wanted he said he wanted some dirt.
Q. Somewhat?
A. Some dirt.
Q. He said he wanted some dirt?
A. Yes, sir. Then we asked him how much did he want. And he said ‘well I’ll be satisfied with what you all give me. I know you all been here all the time working it, and I’ll be satisfied with what you all give me.’ He said “you all been here all the time, and I’ll appreciate what you all give me.’
Q. Now, how much land did he say he wanted?
A. That’s what I’m saying now, he said ‘I’ll appreciate what you all do to me.’ So we commenced laying it off, and he come down from thirty acres to twenty.
A. " >:;s * And then we asked him if he wonld be satisfied with twenty and he said “yes, that’s all right.’ And all his family said ‘yes, that would be nice.’
Q. You mean you all compromised on twenty?
A. Yes, sir; on twenty acres.
Q. Then did everybody seem to be satisfied?
A. Yes, sir. Everybody thought that was all right.”
He further testified that the purpose of the partition deeds was to avoid a lawsuit.
Annie Bell Harris Shears testified the settlement was with Quincy’s approval. She testified:
“Q. And did Quincy say he was satisfied that day?
A. Quincy said he was satisfied. He said he was satisfied that day. He sure said it—Jesus knows he said it.
Q. What about his children? Did they seem to be satisfied?
A. They seemed to be satisfied; yes, sir.”
The question presents itself, in this case, whether the deeds signed by the appellee and the one received by him are to be construed as a valid and sufficient family settlement. There are many cases in Arkansas, beginning with Pate v. Johnson, 15 Ark. 275, numerous others cited in Pfaff, Adm., v. Clements, 213 Ark. 852, 213 S. W. 2d 356, and the recent case of Hobbs v. Cobb, 232 Ark. 594, 399 S. W. 2d 318, which approve the doctrine of family settlement in the absence of fraud or mistake. There is no evidence of fraud or mistake in the case at bar. Family settlements are upheld in the absence of a pre-existing dispute. In the Pfaff case, supra, we said:
“It is not necessary that there be a previous dispute or controversy between the members of the family before a valid family settlement may be made. Thus, in Martin v. Martin, supra, there wa.s no dispute at the time of the conveyance or will in question, yet the agreement was called a ‘family settlement’.” [Citing cases]
The motive to distribute and settle amicably an estate is sufficient consideration for a family agreement. Quoting further from Pfaff, supra:
“Likewise, it is not essential that the strict mutuality of obligation or the strict legal sufficiency of consideration-—as required in ordinary contracts-—-be present in family settlements. It is sufficient that the members of the family want to settle the estate; one person may receive more or less than the law allows; one person may surrender property and receive nó quid pro quo.”
Appellee now contends that he is the sole and only heir of the testator and, therefore, that appellants have no interest in the property in question. In the early case of Turner v. Davis, 41 Ark. 270, it was claimed that Watkins did not have sufficient interest in the property to support a family settlement. There, Mr. Justice Eakin, speaking for the court, said:
“We cannot go behind the agreement to ascertain the interest of Watkins. It is a matter of no consequence whether he had curtesy or had nothing. It was a family contest concerning lands descended, between parties claiming antagonistic interests. The agreement stands on the ground of family settlements,' which are as much encouraged and favored in equity, * * * they are supposed to be the result of mutual good will, and imply a disposition to concession for the purpose, regardless of strict legal rights; always excepting cases of fraud, of which nothing in this case appears.” [Emphasis added]
The courts have also quickly approved family settlements where the question of legitimacy was involved. In Bunel v. O’Day, 125 Fed. Rep. 303, the question of legitimacy was an issue between a brother and a sister which resulted in a compromise settlement of the interests each claimed. In refusing to vacate this compromise and in approving it as a family settlement the court said:
“It is a wholesome rule of law, equally founded in sound public policy, that an amicable compromise of a litigation of the character of this should be favored by the courts. No matter if, on further investigation or subsequent development, it should appear that the defend knew at the time that the demand was not well founded in law or in fact, it would not affect the validity of the compromise. If fairly obtained, it should stand. ‘ The value consists in the release from an uncertain position, with its anxieties, from apparent danger, and from inevitable expenses and trouble.’ ” [Citing eases]
In Strong et al v. Cowsen, 197 Miss., 282, 19 So. 2d 813, a partition deed was made between the parties to resolve the doubt about their respective inheritance rights because of a question of legitimacy. In refusing to cancel this partition deed, and upon approving it as a family settlement, notwithstanding the sufficiency of the proof established one of the parties was not a lawful heir, the court quoted with approval from 12 C.J. p. 322 as follows:
“* * *The termination of such controversies is considered a valid and sufficient consideration for the agreement, and the court will go further to sustain it than it would under ordinary circumstances. Accordingly, it has been laid down as a general rule that a family agreement entered into on the supposition of a right, or of a doubtful right, although it afterward turns out that the right was on the other side, is binding, and the right cannot prevail against the agreement of the parties.”
The court further said:
“* * * there was something more than the mutual mistake of fact relied on herein that influenced the grantors in the execution of the deed here involved. They were likewise influenced by the desire to avoid the expense of litigation then thought to be necessary to determine the true facts, and by the uncertainties as to what the proof to be subsequently ascertained by an investigation and the litigation might disclose;”.
In our state family settlements of property rights will not be set aside except for very strong and cogent reasons. Hollowoa v. Buck, 174 Ark. 497, 296 S. W. 74. We find no such reasons to exist in the case at bar. These contending parties considered their claim, or the claim of the other, to be uncertain and doubtful and believed it expedient to adjust their differences and beliefs by these partition deeds and thereby set at rest the uncertainty and anxiety of their respective claims which are based upon the terms of the will and the question of their parentage. Family settlements tend to prevent litigation and uncertainty, and maintain peace and harmony even though the result reached is not what a court of justice might determine if its decision was first sought.
The affirmative relief sought by the appellants that these partition deeds be held valid and that title to the lands as described in them be quieted is granted. Therefore, the decree of the trial court is reversed and the cause remanded with directions to enter a decree in accordance with this opinion.
See Am. Jur., Deeds, g 376, p. 652 and Am. Jur., Insane Persons, § 132, p. 253.
Also, see 38 A.L.R. 734, 739; 54 A.L.R. 977; 118 A.L.R. 1357; 15 C.J.S. Compromise and Settlement, § 3 (b) p. 715; 11 Am. Jur., Compromise and Settlement, § 11, p. 258.
See also Walker v. Walker, 221 Miss. 225, 72 So. 2d 243; Carter’s Succession, 149 La. 189, 88 So. 788; Kam Chin Chun Ming v. Kam Hee Ho, 371 Pac. 2d 379; Smith v. Mogford, 21 Week Rep. (Eng.) 472; Stapilton v. Stapilton, 1 Atk. 2, 26 Eng. Reprint. 1, 12 Eng. Rul. Cas. 100. | [
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Frank Holt, Associate Justice.
Appellant seeks to have a financing or loan agreement between the appellees declared usurious and, therefore, invalid pursuant to the provisions of Article 19, § 13 of the Constitution of the State of Arkansas. He asks that any existing indebtedness under such contract be cancelled and forfeited and that a permanent injunction be issued against appellees.
Appellee, Cherokee Village Development Company, Inc., [hereafter referred to as Cherokee] and appellee, Northern Financial Corporation [hereafter referred to as Northern] each answered, entered its appearance and submitted to the jurisdiction of the court. In separate answers, each appellee admits that the loan agreement provides for a greater rate of interest than 10% per annum which, under Arkansas law, would constitute usury but alleges, however, that the substantive law of New York, rather than Arkansas, is applicable. Appellees affirmatively ask for a declaratory judgment holding the agreement valid and enforceable. The cause was submitted upon the pleadings and a stipulation of facts. The trial court upheld appellees’ contention that the substantive law of New York governs and the agreement is valid and enforceable.
The pertinent facts agreed upon are as follows. Appellant is a citizen and resident of the State of Arkansas and is the owner of 600 shares of the capital stock of appellee, Cherokee. Cherokee is a corporation organized under and existing by virtue of the laws of the State of Arkansas with its principal place of business in Sharp County, Arkansas. Appellee, Northern, is a corporation organized under and existing by virtue of the laws of the State of New York and has its principal place of business in the City of New York, New York. Northern has not qualified to do business in the State of Arkansas and has no office or place of business in Arkansas. Northern is a commercial financing company.
Cherokee is the owner, subject to rights of way, easements, liens, lots sold and contracts for the sale thereof, of a tract of real estate situated in Arkansas and containing approximately 6,375 acres. Cherokee has developed and improved said tract of real estate, platted portions thereof into lots, has sold some of said lots and entered into contracts of sale with reference to other lots. It will continue to do so in the future.
In early 1962, Cherokee entered into negotiations with Northern to obtain financing for these operations. These negotiations between representatives of Cherokee and Northern took place in Arkansas and in New York. The negotiations led to an agreement between between the parties dated April 30,1962, a copy of which was made a part of the record. The loan agreement drafted by Cherokee, the borrower, was executed and deliverd in New York City and the agreement expressed the intent of the parties that the laws of the State of New York shall govern their contractural rights and duties.
Generally stated, the loan agreement classifies the aforesaid contracts of sale into two types of “eligible paper”. One type, Class A Paper, being the contracts on which at least six installment payments, but less than twelve, have been paid to Cherokee by the purchaser. The other type, Class B Paper, being contracts on which twelve or more such installment payments have been paid. Such contracts, designated by the loan agreement as eligible paper”, are also designated as “collateral” and are to be pledged, assigned and delivered by Cherokee to Northern in New York to secure the loan. Northern agrees to advance and deliver to Cherokee, by depositing in a New York bank account of Cherokee, as requested from time to time, such sums as shall not exceed thirty-three and one-third per cent of the unpaid balance of Class A Paper and as shall not exceed fifty per cent of the unpaid balance of Class B Paper. Cherokee agrees to pay interest upon the advances so made to it at the rate of 1/27 of one per cent per day (equalling approximately 13% per cent per annum). There is sufficient eligible paper to permit a loan well in excess of one million dollars.
Under the terms of the loan agreement Cherokee agrees to continue to make collection of payments under the said contracts of sale which are assigned as collateral. Such collections are to be received by Cherokee in trust for Northern and deposited in a special bank account in the Bank of Ash Plat, Arkansas, maintained in Cherokee’s name. The funds so received are to be remitted daily by check to Northern, these being the only withdrawals from this bank account. All such remittances are to be delivered to Northern in New York and are not to be effective until three days after receipt to permit bank clearance and collection. When thus collected, the remittances are credited by Northern against Cherokee’s indebtedness. Upon any contract of sale being paid in full by the buyer, Northern must redeliver such contract to Cherokee. The loan agreement is to continue in effect from year to year until terminated as specified in the agreement. Cherokee reserves the right to terminate this agreement upon thirty days notice to the event it is able to secure necessary refinancing from commercial banks, other institutional lenders, or public financing.
The appellees have been operating under this agreement with the said contracts of sale being assigned and pledged to Northern, loans being made thereon to Cherokee, and payments being made on those loans including interest at a rate of more than 10 per cent per annum (approximately 13%% per annum).
Appellees, Cherokee and Northern, have filed a financial statement with the Clerk of Sharp County, Arkansas, and the Secretary of State, pursuant to certain provisions of the Uniform Commercial Code, Ark. Stats. S5-1-101, et seq. (Act. 185 of the Acts of Arkansas of 1961).
It is undisputed that if the substantive law of Arkansas is applicable, the loan agreement is usurious and void; however, if the substantive law of New York is applicable, the contract is valid and enforceable.
On September 17, 1962, the trial court rendered its decree holding that the validity, interpretation and effect of the loan agreement are to be determined by the substantive law of New York and, therefore, it is valid and enforceable. The court dismissed the appellant’s complaint with prejudice. From this decree appellant brings this appeal.
For reversal appellant pursues five points:
V) The transaction is one affecting the title to Arkansas land and its validity is to be determined by Arkansas law.
(2) Arkansas is the state with the most significant contracts and therefore Arkansas law must govern the contract.
(8) The Uniform Commercial Code as enacted by Arkansas requires that the contract be governed by Arkansas law.
(4) Even if the validity of the contract is to be determined by New York law, Arkansas substantive law is applicable under the doctrine of Renvoi.
(¡, 5) The strong public policy of Arkansas against usurious contracts demands a finding of invalidity.
We consider these points in the order presented.
(1) Appellant’s theory is that the contracts of sale, which are the principal collateral, when assigned, pledged and delivered to Northern, in effect transfer an interest in the retained legal title to Arkansas land. Further, that in the event of any default by Cherokee, Northern is authorized to dispose of the contracts at either public or private sale, thereby effecting another transfer of title to the Arkansas land.
The title to land is controlled by the law of the situs of the particular land in question. O’Bar v. Hight, 169 Ark. 1008, 277 S. W. 533; Nakdimen v. Brazil, 137 Ark. 188, 208 S. W. 431; Polack v. Steinke, 100 Ark. 28, 139 S. W. 538; Lefler, Conflict of Laws, (1959) § 140.
However, we think the facts in the instant case are more closely analogous to the cases in which the borrower has executed a promissory note in another state, payable in such other state, to be secured by a mortgage on Arkansas land. In these note and mortgage cases, this court is committed to the rule that the governing law is to be determined under the ordinary choice of law rules for contracts, just as if there were no mortgage. Smith v. Brokaw, 174 Ark. 609, 297 S. W. 1031; Boston Mutual Life Inc. Co. v. Newton, 174 Ark. 547, 297 S. W. 1035; Dupree v. Virgil R. Coss Mortgage Co., 167 Ark. 18, 267 S. W. 586; Tenny v. Porter, 61 Ark. 329, 33 S. W. 211. However, this court is not committed to any choice of laws rules of contracts which is a sham to evade the usury laws of our state.
In Penny v. Porter, supra, this court stated the rule:
‘ ‘ The law of the place which determines the validity of a contract secured by a mortgage determines whether the mortgage be valid or usurious, irrespective of the place where the land which is subject of the mortgage is situated * * * .”
It is our opinion that the situs of the land is not controlling as to which state’s laws are to be applied in determining the validity of the loan agreement in this case.
(2) In determining what law governs the validity of a multistate contract four different bases have been used: (1) The law of the state in which the contract was made; (2) the law of the state in which the contract is to be performed in its most essential features; (3) the law of the state which the parties intended to govern the contract, provided that state has a substantial connection with the contract; and, (4) the law of the state which has the most significant contracts with the matter in dispute (also known as the “center of gravity” or “grouping of contracts” (theory). See Lefler, Conflict of Laws, (1959) §§ 124, 125.
Arkansas has, on different occasions, applied the first three of these theories. Smith v. Brokaw, supra, (place of making); American Farm Mtg. Co. v. Ingraham, 174 Ark. 578, 297 S. W. 1039, (place of performance); McDougall v. Hachmeister, 184 Ark. 28, 41 S. W. 2d 1088, (intent of the parties). The “center of gravity” theory, which appellant urges upon us, was inaugurated in Auten v. Auten, 308 N. Y. 155, 124 N. E. 2d 99. This court has not found occasion to employ it nor do we now find it necessary in this case.
From a review of the facts in this case we are of the opinion that upon the application of any of the three traditional rules, recognized by this court, that the law of New York is controlling.
This agreement was drafted by' the borrower, Cherokee, and offered to the lender, Northern, in New York. It was in New York that this contract was executed and delivered or where the last act necessary to complete the contract and impose legal obligations was consummated. The contract was made in New York. Leflar, Conflict of Laws, (1959) § 122; Restatement, Contracts, % 74; Williston, Contracts (3rd Ed. 1957) § 97; Smith v. Brokaw, supra.
As to performance, it is in New York where all advances, repayments and remittances are to be made and all collateral assigned. It is in New York that the contract is to be performed In the main or its essential features. American Farm Mtg. Co. v. Ingraham, supra.
By the terms of the contract, it is the express intention of the parties that the laws of New York govern its validity. Cherokee and Northern had the right to select and intend the law of New York to govern the contract since New York has substantial contacts with the contract. McDougall v. Hachmeister, 184 Ark. 28, 41 S. W. 2d 1088; Dupree v. Virgil R. Coss Mortgage Co., supra. Of course, they could not validly agree to such if New York had no substantial connection with the agreement.
(3) We are only concerned in this case with the question of usury. Thus, we do not reach the question of whether the Uniform Commercial Code, Ark. Stats. 85-1-101, supports the appellant’s argument because the Uniform Commercial Code does not affect the Arkansas law on usury. See Ark. Stats. 85-9-201.
(4) Renvoi is the doctrine under which the court of the forum, in resorting to a foreign law, adopts the rules of the foreign law as to conflict of laws, which rules may in turn refer the court back to the law of the forum.
We deem it unnecessary to decide whether this court will follow the renvoi doctrine in this case. Suffice it to say that if this court applied the Avhole law of New York, which includes the New York laAv on conflict of laAvs, the result in this case would be the same as Ave reach on other grounds. In determining which state’s laAv governs the validity of a contract, New York has apparently committed itself to the “center of gravity” or “grouping of contracts” theory. Auten v. Auten, supra. Applying that theory to the instant facts, it is evident that New York is the state Avith the most significant contacts Avith the matter in dispute.
(5) This court has consistently inclined toAvard applying the laAV of the state that Avill make the contract valid, rather than Amid. Whitlock v. Cohn, 72 Ark. 83, 80 S. W. 141; Dupree v. Virgil R. Coss Mortgage Co., supra; American Farm Mtg. Co. v. Ingraham, supra; Wilson-Ward Co. v. Walker, 125 Ark. 404, 188 S. W. 1184.
This is not a case of a cloak for usury or Avhere the parties to a wholly Arkansas contract have sought to avoid the Arkansas usury Iuav by having the validity of the contract determined by the law of a state having no substantial .connection with the contract. On the contrary, this is essentially a New York contract. It is quite natural for a New York lender to loan its money in New York, to require it to be repaid in New York and to stipulate that the contract be governed by familiar New York law. These are reasonable requirements for a lender to exact.
The parties in this case were dealing fairly with each other with full disclosure. Cherokee drafted the agreement and presented it to Northern for acceptance. Cherokee reserved the right to terminate the agreement on thirty (30) days notice if it were able to obtain the required refinancing from commercial banks, other institutional lenders, or public financing. We see nothing so reprehensible about this agreement that it would require us to discard our recognized rules of conflict of laws in order to hold the agreement to be void.
The decision of the lower court is, therefore, affirmed. | [
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Paul Ward, Associate Justice.
In May 1960 the University of Arkansas entered into a written contract with B. Sweetser Construction Company (hereafter referred to as prime contractor) for the erection of a men’s residence hall at Fayetteville, the total contract price being $1,426,363. The United States Fidelity and Guaranty Company (hereafter referred to as surety) executed a bond, pursuant to Ark. Stat. Ann. §§ 51-632 and 51-635 (Supp. 1961), conditioned that the prime contractor “shall faithfully perform his contract, and shall pay all indebtedness for labor and materials furnished or performed ... in the erection” of the said building.
The building was to be constructed according to plans and specifications prepared by a named firm of architects. Among other things the plans and specifications called for a certain aluminum fabrication to be used in the installation of a certain stairway. This fabrication (hereafter called Item 7) was designated “Econo Rails and Posts”, manufactured by Newman Brothers, Inc. located in Ohio — hereafter called appellee. The plans and specifications called for Item 7 or its eqtial.
Item 7 was in fact fabricated by appellee and used in the construction of the building, the price of the item being $1,200. The issue to be decided by this litigation is whether appellee is entitled to recover the above amount from appellants or either of them. The real issue which we will consider is, as defined by the trial court, whether the surety is obligated under the above statutes to pay appellee.
In order to understand and discuss the issue it is necessary to set out below certain material facts which are not in dispute.
On May 20, 1960 the prime contractor entered into a written contract with the Fort Smith Structural Steel Company wherein the latter agreed to furnish $102,000 worth of structural steel and other metals (consisting of 27 items) to be used in the building. Included therein was Item 7. About a week later the prime contractor issued a purchase order for the above items. Thereupon the Fort Smith Company placed an order for Item 7 with the United Iron and Steel Company of Oklahoma City. Then the latter company placed an order for Item 7 with appellee. On January 13, 1961 appellee shipped Item 7 to “Men’s Residence Hall, University of Ark., Fayetteville, Ark.” The invoice (apparently) was sent to “United Iron and Steel Co., P. 0. Box 3885, Oklahoma City 6, Okla. ’ ’ The above quotations were taken from the invoice issued by appellee as shown in the record. Sometime in August, 1961 the prime contractor paid the Fort Smith Company $1,200 for Item 7 along with full payment for all other contract items. The Fort Smith Company paid the Oklahoma Company for Item 7, but the latter company has not paid appellee.
Appellee’s complaint, asking for $1,200 from appellants, and appellant’s general denial were presented to the trial court upon interrogatories and stipulations. Both sides moved for a summary judgment. The trial court sustained appellee’s motion and appellees would sustain the court on the grounds that the statutes previously mentioned impose an absolute obligation on the surety to pay for Item 7 and that the law requires no privity between appellee and the prime contractor— especially since the contract called for a named item— Item 7.
We are unable to agree with the contentions of appellee under the facts in this case. Section 51-632 mentioned previously merely provides that the prime contractor in this instance had to furnish a bond in an amount equal to the contract price—$1,426,363. Section 51-635, previously mentioned, reads:
“(a) The bond required or authorized in this act [§§ 51-632—51-638] shall be executed by a solvent corporate surety company authorized to do business in the State of Arkansas, and shall be conditioned that the contractor shall faithfully perform Ms contract, and shall pay all indebtedness for labor and materials furnished or performed in the repair, alteration or erection.
“(b) The bond required or authorized in the foregoing sections of this Act shall in itself be a full compliance with all other statutes of this State now or hereafter in effect relating to bond requirements on contracts for the repair, alteration or erection of any building structure or improvement, public or private, it being the intention of this Act to provide a uniform bonding procedure in conjunction with such contracts.” (Emphasis added.)
We are wholly unable to hold that the above statute in this instance imposes an absolute duty on the surety to pay appellee since there is no showing of any privity between appellee and the prime contractor. If the surety is liable to appellee then it would seem to follow logically that the surety would also be liable to any person who might have furnished labor or material for the fabrication of Item 7 but had not been paid by appellee, and ad infinitum. Under such a construction of the statute it would be difficult for any surety company to determine the extent of its liability or when it would end.
We are impressed with the reasoning used and the conclusions reached in the case of City of St. Louis, to Use of Stone Creek Brick Co., v. Kaplan-McGowan Co., et al., 233 Mo. App. 789, 108 S. W. 2d 987. In that case appellee was hired as the prime contractor to build a hospital for the City of St. Louis. A surety company executed its bond pursuant to statute. In the course of construction appellee sublet the brick work to Parker and Sloss; the latter purchased the brick from one Stocke; and, Stocke purchased the brick from appellant—Stone Greek Brick Co. The subcontractor was paid in full but the Stone Creek Brick Co. was not paid. The court held the surety was not liable to Stone Creek Brick Co. on the ground that it was not in privy with the prime contractor. In that case the statute was more liberal for the supplier of materials than the statute involved in this case. Mo. Stat. § 2890 (1929) [Mo. Stat. § 3277 (1939)] requires the surety to pay for all materials furnished “in such work whether by subcontractor or other wise”. In holding as it did, the Missouri Court of Appeals used language which we think is applicable and controlling in the case under consideration.
“As a matter of fact, the actual test to be applied in determining the right of a party such as plaintiff in this case to have recourse to the contractor’s bond for the payment of his account is one of privity of contract between him and such contractor.”
Quoting from Board of Education of St. Louis v. Fidelity & Guaranty Co., 166 Mo. App. 410, 422, 149 S. W. 46, 49, the court further said:
“ ‘While the privity of contract is necessary it need not be directly with the original contract but it must spring out of it. That it is not derived directly from the original contractor does not destroy the privity. It may come through contract with the subcontractor, as, in mechanic’s lien cases it frequently does. The contract and bond require the principal and surety to respond for claims for labor and material furnished under the contract, and whether that claim for labor and material comes directly from the original contractor or from a subcontractor, or from a laborer or materialman under the subcontractor, is immaterial, so long as its origin is called for in the original contract and grows out of the original contract.’ ”
The court then said:
“But it is at this point that privity of contract ends, and one who supplies material to a materialman, who in turn supplies the subcontractor, is to be relegated to the status of a stranger to the original contract, since such person’s contract or undertaking is neither with the principal contractor, nor with one who, as in the case of a subcontractor, deals directly with the principal contractor. Such person’s contract is therefore but indirect and collateral to the original contract, and for want of privity does not serve to bring such party within the purview of the principal contractor’s bond.”
In this opinion we do not mean to hold that a person who furnishes material to a subcontractor is not in privy with the prime contractor, but just the contrary. In this connection the general rule is stated in 77 A.L.R. at page 148 as follows:
“It is generally held that persons supplying materials and labor to a subcontractor, rather than directly to the general contractor, may recover on a bond given pursuant to such a statute.”
The statute referred to above was one, similar to our own statute, required by contractors in constructing public buildings.
In the case under consideration it is clear from the above statements that appellee was not in privy with the prime contractor. It is contended by appellee that the Fort Smith Company was a subcontractor. Conceding, without deciding, this to be true, it avails appellee nothing because appellee did not deal with that company but with the Oklahoma Company which has been paid in full.
Appellee cites the ease, Stewart-McGehee Construction Co. v. Brewster and Riley Feed Manufacturing Company, 171 Ark. 197, 284 S. W. 53, in support of its contention that there need be no privity between the furnish-er and the prime contractor. In that case, however, the claimant furnished the material to a subcontractor. Therefore the Court was correct, as previously pointed out, in holding the surety liable. Neither does the case of Detroit Fidelity & Surety Company v. Yaffe Iron & Metal Co., Inc., 184 Ark. 1095, 44 S. W. 2d 1085, support appellee. There, the only issue to be decided by the Court was whether certain two and one-half inch water pipe furnished by claimant to the prime contractor should be classified as major equipment of the contractor or materials used in the construction. In holding in favor of the supplier of the pipe, the Court said the bond and the statute ‘ ‘ must be construed liberally in order to effectuate the purpose of the Legislature ...”
We find no merit in appellee’s contention to the effect that the peculiar nature of Item 7 was sufficient to put the prime contractor on notice that appellee fur nished the same, and should therefore, in the interest of justice, be paid. It is pointed out the specifications did not call for an item to be made by appellee—it called for such item or its equal.
In view of what we have heretofore said, the judgment of the trial court is reversed and the cause of action is dismissed.
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Frank Holt, Associate Justice.
The appellant was charged by information with the crime of assault with intent to kill. Upon a jury trial he was found guilty of the lesser offense, assault with a deadly weapon, and his punishment assessed at one (1) year imprisonment and a fine of fifty dollars ($50.00). Upon rendering judgment, the Trial Court suspended nine (9) months of this sentence. From that judgment appellant brings this appeal urging four (4) assignments of error.
First it is urged by the appellant that the jury verdict was arrived at by lot. We do not agree. Upon the return of the verdict, counsel for the appellant polled the jury. One of the jurors, Mrs. Gibson, replied that she agreed to the verdict and it was the result of a compromise. At a subsequent proceeding Mrs. Gibson was called by the appellant to support his argument that the verdict was arrived at by lot. She testified that some of the jurors were of the opinion that the defendant was innocent of any offense and that some of them were of the opinion that he should be convicted of the crime of assault with intent to kill. The effect of her testimony was that the verdict was the result of compromise between the jurors and that she “voted for the verdict as rendered” and “the entire twelve [12] agreed.” This was not a verdict by lot. A verdict by lot involves an element of chance. Speer v. State, 130 Ark. 457, 198 S. W. 113; Arnold v. State, 150 Ark. 27, 233 S. W. 818; Patton v. State, 189 Ark. 133, 70 S. W. 2d 1034.
In the case at bar the verdict was arrived at by the exercise of the free choice of the jurors and in the absence of any element of lot, chance, hazard or fortune. There was no evidence of any contrivance to determine appellant’s guilt by any of these elements. A verdict reached by a jury through a compromise of their views is not a verdict by lot. It is a fair expression of their views. Smith v. State, 160 Ark. 178, 254 S. W. 463. Since this was not a verdict by lot, we hold it was not competent for the appellant to thus impeach the verdict of the jury. The Court was correct in denying appellant’s motion for a new trial on this point.
Secondly, the appellant insists that the Trial Court erred in refusing his requested Instruction No. 4 which reads as follows:
‘ ‘ If you find that the defendant, Earl Blaylack, had reasonable cause to believe that the prosecuting witness, Raymond Foster, and those around him were approaching the defendant with the intent to take his life or to commit an assault upon his person, and that the defendant had done all that he could do to avoid difficulty without retreating, then you should find that the firing of the gun toward the said Raymond Foster and the others was justified and the defendant should be acquitted.” [Emphasis ours.]
We discuss only one of the reasons why we find no merit in this contention. It is well settled in our State that it is not the duty of the Court to give an instruction on any point of appellant’s theory of his case unless he offers a correct instruction to the Court. Hays v. State, 219 Ark. 301, 241 S. W. 2d 266. In the early case of Carpenter v. State, 62 Ark. 286, 36 S. W. 900, we held that the plea of self-defense is available only if the assault upon the defendant is of such character as to be with murderous intent. Upon a review of the many cases since then, including a most recent case, Seward v. State, 228 Ark. 712, 310 S. W. 2d 239, we find throughout these cases, as a condition precedent to the plea of self-defense, that an assault upon the defendant must be of such a character that it is with murderous intent, or places the defendant in fear of his life, or great bodily harm. A mere assault is not sufficient to justify the plea of self-defense. See, also, Bazzell v. State, 222 Ark. 473, 261 S. W. 2d 541. According to the evidence on behalf of the appellant he was entitled to an instruction on self-defense, however, the Court was correct in refusing defendant’s requested instruction on self-defense as offered.
Thirdly, it is contended by the appellant that the verdict rendered against him by the jury was based upon insufficient evidence. We do not agree. In testing the legal sufficiency of evidence to support a verdict in the case at bar we must view it, on appeal, in the light most favorable to the State. Allgood v. State, 206 Ark. 699, 177 S. W. 2d 928; Hadaway v. State, 215 Ark. 658, 222 S. W. 2d 799.
Appellant and the prosecuting witness, Foster, were strangers. They met at a picnic and engaged in an argument on the subject of “drag racing” which terminated with a handshake. Appellant drove his car about fifty (50) yards down the road, stopped and engaged someone in conversation. According to the prosecuting witness, he thought he understood the appellant to curse him. Thereupon he went to the appellant and made inquiry of such without being armed. Again their meeting ended on a friendly basis. After walking away a short distance he again understood appellant to curse him and he turned around, tearing loose from a companion. As he was advancing, unarmed, toward the appellant he was shot by appellant while approximately eight (8) to ten (10) feet away from him. The appellant contends that the prosecuting witness was armed with an empty whiskey bottle upon his first approach and when he advanced upon him a second time he had a shiny object which appeared to be a knife in his right hand; that the prosecuting witness and those around him were advancing upon appellant in a threatening manner and he understood the prosecuting witness to say “I’m going to cut you all to pieces ’ ’; that he shot Foster -when he failed to heed his warning to stop. Reviewing the conflicting versions in the light most favorable to the State, as we must do in this case on appeal, we hold there was sufficient evidence upon which the jury could base its verdict.
Fourthly, the appellant asserts that the Court erred in refusing to allow a witness in his behalf “to testify whether or not he was sitting in such a position as to be able to see whether the prosecuting witness, Baymond Foster, had anything in his hand as he approached the appellant.” Upon reviewing this testimony we think that the witness was allowed to fully testify from what he knew of his own knowledge. However, since this point was not raised by the appellant in his motion for a new trial, we cannot consider it as an assignment of error upon appeal. Lambdin v. State, 150 Ark. 580, 234 S. W. 987.
Finding no error, the judgment is affirmed.
Ark. Stat. Ann. § 43-2203 (1947) reads: “Grounds ior new trial.—• * ** * Where the verdict has been decided by lot, or in any other manner than by a fair expression of opinion by the jurors.” Also, Ark. Stat. Ann. § 43-2204 (1947) reads: “Competency of juror.—A juror can not be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot. [Grim. Code, § 269; C. and M. Dig., § 3220; Pope’s Dig., § 4060.]” | [
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George Rose Smith, J.
In this eminent domain proceeding the appellant seeks to acquire about half of a twelve-acre tract owned by the appellees. The circuit court, sitting without a jury, awarded the landowners $3,500 as compensation for the property being taken. For reversal the appellant contends that the court erred in refusing to strike the testimony of certain witnesses for the landowners.
Two of the witnesses, Bob Geliy and Joe Snelly, were real estate dealers in Crawford county. After having-first stated that they were familiar with land values in the vicinity of the Johns property and that they had inspected this property, both these witnesses expressed their opinion as to the fair market value of the appellees ’ property before and after the taking. The appellant made an unsuccessful attempt to have this testimony stricken, on the ground that neither witness had stated the facts and reasons forming the basis for his opinion. In insisting that the testimony should have been excluded the appellant cites cases such as Ark. State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738, holding that the opinion of an expert witness is not substantial evidence when the witness fails to give a fair or reasonable basis for his conclusions.
We think counsel have misconstrued the intent of our cases. It is true that a non-expert witness, such as a layman testifying about a testator’s mental capacity, must state the facts upon which his opinion is based be fore giving that opinion. Walsh v. Fairhead, 215 Ark. 218, 219 S. W. 2d 941. But there is no similar condition to the admissibility of an expert’s opinion.
An expert witness, after having established his qualifications and his familiarity with the subject of the inquiry, is ordinarily in a position to state his opinion. For instance, a physician might testify that he had examined a certain patient and found him to be afflicted with malaria. That testimony would unquestionably be admissible. Yet if this physician, on cross-examination, were forced to admit that he had found no recognized symptom of malaria and had based his conclusion solely upon the fact that the patient had been bitten by a mosquito, then, under the rule in the Byars case, the witness’s opinion would no longer constitute substantial evidence.
It was incumbent upon counsel for the appellant to support their motion to strike by showing that the landowners’ expert witnesses had no reasonable basis for their opinions. Counsel actually made no effort in that direction, the motion to strike Snelly’s testimony having been made without any cross-examination at all. Thus there was a complete failure to overcome the prima facie admissibility of the testimony that was challenged.
Near the end of the trial the witness Snelly was recalled in rebuttal and testified that a seven-acre tract contiguous to the Johns land had recently been sold for about $700 an acre. On cross-examination Snelly conceded that the purchaser had been a contractor, who used the seven acres for the excavation of dirt rather than as a home site (which was the use to which the Johns tract was best suited). In view of this dissimilarity counsel for the condemnor asked that all the testimony about the sale of the adjoining parcel be excluded.
This motion was properly denied. Snelly also testified that the other tract was the same kind of land as that being condemned, that the highway department’s witnesses had considered the other sale, and that the other tract would not have been sold any more cheaply for any purpose other than the one for which it was actually used. Hence the fact that the contractor used the tract as a source of dirt did not completely destroy the similarity between the two pieces of land. We have no reason to think that the trial judge could not and did not consider the other transaction in its proper perspective. For much the same reason we are of the opinion that the court did not err in refusing to strike the entire testimony of the witness Owen Bass, a former county assessor. Much of this witness’s testimony was competent; so the motion to exclude all his testimony was properly denied. Nichols v. State, 92 Ark. 421, 122 S. W. 1003.
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George Eose Smith, J.
The question here is whether a fund in the registry of the chancery court, deposited in the form of a cash bond, may be reached by a writ of garnishment after the chancellor has filed an opinion awarding a portion of the fund to the garnishment debtor.
Crabtree, the garnishment debtor, brought suit in the Union Chancery Court to impress a lien upon oil and gas interests owned by the appellant Hays, a nonresident of the state. To keep the suit from interfering with the payment of oil runs Hays deposited $6,500 in court, as a cash bond for the payment of any judgment Crabtree might obtain. The case was tried and taken under advisement by the chancellor. On October 31, 1962, the chancellor filed an opinion finding that Crabtree was entitled to recover $2,223.22, directing that this amount be paid to Crabtree from the fund in court, directing that the remainder of the fund be returned to Hays, and instructing counsel to prepare a judgment conforming to the opinion.
On November 7 the appellee Conklin, who had previously obtained a judgment against Crabtree in the Union Circuit Court, had a writ of garnishment served upon the appellant Hooten, who was the clerk of the chancery court and the custodian of the fund. On December 31 Crabtree and Hays filed in the chancery case a stipulation agreeing that Crabtree’s complaint and Hays’ counterclaim might be dismissed with prejudice. On the same day the chancellor entered the agreed order of dismissal. When Hooten, the garnishee, interposed that order as a defense to the garnishment proceeding, Conklin made Hays a party to that proceeding. Upon final hearing the circuit judge, sitting without a jury, held that despite the dismissal of the chancery case the garnishment creditor was entitled to have the sum of $2,223.22 paid to him from the fund in the chancery court. Hooten and Hays have appealed.
We think the court was right. There is no doubt that a fund in court is subject to garnishment, this procedure being authorized by statute. Ark. Stat. Ann. § 31-118 (Eepl. 1962); Green v. Robertson, 80 Ark. 1, 96 S. W. 138; McGill v. Robbins, 231 Ark. 411, 329 S. W. 2d 540. As a general rule a fund in court becomes subject to garnishment upon the entry of a judgment ordering its payment to the garnishment debtor. Dunsmoor v. Furstenfeldt, 88 Cal. 522, 26 Pac. 518; Orchard & Wilhelm Co. v. North, 135 Neb. 39, 280 N. W. 272; Gaither v. Ballew, 49 N. C. 488, 69 Am. Dec. 763. In the case at bar there is no contention by the appellants that the filing of the chancellor’s opinion was not equivalent to the entry of a judgment within the intent of the rule just stated.
When Hays, in 1958, deposited $6,500 in the registry of the court he also filed an instrument entitled “Bond,” but this instrument was signed by Hays alone and did not even purport to bind anyone else as a surety. The instrument recited Hays ’ intention to prevent the oil runs from being impounded during the pendency of the suit, referred to the cash deposit that was being made, and concluded by declaring that if Hays should pay any judgment that might be rendered in favor of Crabtree ' ‘ then this bond is void; otherwise it shall remain in full force and effect. ” It is argued that there was never any breach of the condition of the bond, that consequently Hays became entitled to the return of the entire deposit, and that therefore the attempted garnishment should be held to have been ineffective.
This argument is not persuasive. The instrument was not a true bond, which would have involved a surety who might reasonably expect that the principal would be given an opportunity to discharge his obligation before any claim would be asserted against the surety. Hays voluntarily chose to dispense with a surety. Instead, he made a cash deposit in the registry of the court. If it had become necessary for Crabtree to enforce the chancellor’s award it could not in seriousness have been contended that Crabtree, before resorting to the cash deposit that had been made to provide for that very contingency, should first have given Hays an opportunity to pay the award from other resources he might have. The fund in court unquestionably stood as a guaranty of Hays’ primary liability rather than as a guaranty of the secondary liability of a nonexistent surety.
The chancellor, in drafting his opinion, not only made an award to Crabtree but also directed that the award be paid from the fund in court. This directive was not unauthorized, as the appellants suggest. To the contrary, it gave effect to the exact purpose for which the deposit was made. The award was in substance a judgment in Crabtree’s favor and gave him an interest in the fund that was subject to garnishment. Thereafter Crabtree and Hays, by a stipulation that may have been a collusive attempt to deprive Conklin of his rights, attempted to undo the chancellor’s action. In simple justice that attempt ought to fail.
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Jim Johnson, Associate Justice.
This is a suit for damages allegedly sustained by appellants, Frank C. Allen and Laura E. Allen, as a result of alleged false representations of appellee, Elmer Overturf, a real estate broker. In 1958 appellee showed appellants some farm property near Green Forest which appellants contracted to purchase the same day, and thereafter took possession. In 1960 appellants filed this suit against appellee, alleging that appellee had knowingly falsely represented to appellants that there was plenty of water on the farm, that as a result of relying on these representations and buying the farm, appellants had to have a well drilled, stock pond built, and otherwise suffered damage to the total extent of $6,687.50. Appellee answered, denying the allegations and pleaded affirmatively that appellee had been relieved of any responsibility by the following provision in the escrow (purchase) agreement:
“Purchasers herein agree and state that they have personally viewed and inspected the above described property and hereby release and relieve Elmer and Fay Overturf of and from any responsibility regarding said sale and property, except as herein stated.”
and cross-complained for $5,000.00 damages for slander in filing the action.
On July 20, 1961, after submission of appellants’ evidence to the court and jury, the trial court directed a verdict for appellee on the ground that appellants had relieved appellee of any liability in the escrow agreement. Appellants appealed, and this court reversed the trial court, stating in its mandate that “The court erred in directing a verdict as testimony introduced was sufficient to raise a jury question as to whether there was fraud on the part of the appellee. ’ ’ See Allen v. Overturf, 234 Ark. 612, 353 S. W. 2d 343.
On retrial, the jury found for appellee on the complaint and appellants on the cross-complaint, and judgment was entered accordingly, from which this appeal was taken. For reversal, appellants rely on six points, none of which are discussed, for the reason hereinafter stated.
The procedural rules of the Supreme Court are designed to foster efficient and intelligent review of the cases presented on appeal. For the expedition desired by all litigants and attorneys, this court has provided that appellant should abridge the pleadings, proceedings, facts, documents, and other matters contained in the record and necessary to an understanding of the questions presented to this court. This abstract we deem far more desirable from the standpoint of the court’s time as well as appellant’s purse, than requiring multiple copies of the record. Obviously it is impractical and inefficient to expect each of the seven justices to have to minutely examine the usually-voluminous record in each of the seven or more cases assigned each week. Hence the provision in Rule 9 that:
“The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.” [Emphasis ours]
Appellants have attempted to abstract a 129-page record into five pages of their brief. While we can visualize instances where such succinctness would be an adequate or ample abstract of the pertinent record, in the case at bar the condensation of the record contained in the abstract and brief is insufficient for the members of this court to reach that understanding of the questions presented necessary for a decision.
We remind the Bar:
“We are not required to explore the one record (transcript) that is presented to us, this duty rests on appellant, and it is further his duty, as indicated, to furnish this court such an abridgement of the record that will enable us to understand the matters presented. This he has not done.’ Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452; Porter v. Times Stores, Inc., 227 Ark. 286, 298 S. W. 2d 51.
For such failure, we have no choice but to affirm the judgment of the trial court. Commissioner of Labor v. Danco Construction Co., 226 Ark. 797, 294 S. W. 2d 336; Griffin v. Mo. Pac. Rd. Co., 227 Ark. 312, 298 S. W. 2d 55; Farmers Union Mut. Ins. Co. v. Watt, 229 Ark. 622, 317 S. W. 2d 285; Royster v. Royster, 233 Ark. 20, 342 S. W. 2d 302, Anderson v. Stallings, 234 Ark. 680, 354 S. W. 2d 21.
Affirmed. | [
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Ed. F. McFaddin, Associate Justice.
At the close of appellant’s case, the Chancery Court sustained the appellee’s written demurrer to the evidence; and the issue on this appeal is whether the Court was correct in its ruling. This requires an application of our holding-in the case of Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, and the subsequent cases involving the same question.
On December 16, 1961, appellee, Mrs. Alice Pults, received a decree of divorce from appellant, George Pults. A property settlement agreement was incorporated in the decree which provided, inter alia, that Mrs. Pults would have the care and custody of the two minor sons of the parties during the entire period of minority. One of the boys was then fourteen, and the other was nine. The decree also provided that Mr. Pults would pay Mrs. Pults $200.00 per month for the support, maintenance, and education of the two boys. There was also a property settlement between Mr. and Mrs. Pults, which need not be detailed.
As stated, this decree was on December 16, 1961; and fifteen days later Mr. Pults contracted another marriage. Then, on July 24, 1962, Mr. Pults filed the present petition for reduction of the monthly payments for his two sons, claiming that the expenses caused by his subsequent marriage, plus his decreased income, made it difficult, if not impossible, for him to pay the $200.00 per month for the support of his own sons. He wanted to pay only $100.00 per month. The case came to trial; and after Mr. Pults had offered his desired evidence, the Chancellor sustained Mrs. Pults’ written demurrer to the evidence. We copy the Chancellor’s opinion:
“The question now presented on demurrer to petitioner’s evidence, is whether there has been such a material change in circumstances relative to Mr. Pults since the entry of the decree on December 16, 1961 as would entitle him to, and justify the Court in granting, a modification of the money payments presently required of him. On such demurrer the testimony offered must be viewed, in the light most favorable to Mr. Pults.
“Under Ms testimony, the reason he seeks a change, and the material difference that he alleges has occurred, is that he has suffered a reduction in income so that he is no longer able to meet the scale of payments contained in the property settlement and the decree. Now, actually, he doesn’t plead this at all. He pleads that the change in circumstances is tha/ he has remarried, and that his expenses have increased. The matter of his income being reduced was brought out by the proof, but not being objected, the Court maj treat the pleadings as amended to conform to the proof, where offered without objection. So, the status of the matter now is that he relies upon the fact that he has remarried since the entry of the decree of divorce, which is a change of circumstances, and that Ms income has been reduced by about one-half since the decree of divorce. Now, accepting all these tMngs as true, the question is, on this demurrer: does this make a case for the reduction of the money payments? Are these such material changes as would justify a modification in the support order?
“In the opinion of the Court neither of these events, under the state of the proof here, is sufficient to justify a change in the decree. In the first place, the proof does not show that he has suffered a 50% redijction in income or that he has suffered any reduction in income. The proof shows that as of the calendar year 1960, and maybe for some or a part of the calendar year 1961, his income from his employment was $12,000.00 a year. It shows that as of and prior to the entry of the decree of divorce, his salary was $125.00 a week, no bonuses, no dividends, no stock holdings. It also shows that between some time in August of ’61 and the entry of the decree in December, he sold his stock for an ultimate purchase price of $30,000.00. The testimony shows that his salary income thus far in 1962 is $125.00 a week, exactly what it was when this divorce was granted and for some time prior thereto. He owned some lots in Springdale which he has since sold for $3,000.00. That is merely a substitution in the form of the asset, the exchange of land for money. The same is true as to his former stock ownership. It doesn’t appear to me that there has been any material change at all, either on the score of assets or time wages.
“Second, as to the remarriage: Under the proof he was married exactly 15 days after the divorce, which is of no consequence except to this extent: there is certainly no one in a proper position to criticize the fact of his right to remarry; but when he did so with the knowledge and memory of the property settlement and the decree only 15 days old in his mind, by no stretch of reasonable imagination can it be suggested that he didn’t know what he was doing. He knew what his obligations were under the property settlement and the decree. These were, so far as can be determined, fully and freely and openly entered into and were mutually binding. To say now that he is in a “bind” because he has remafried and has incurred some new expenses, or at least a recurrence of former expenses that he is required to meet as a married person, and that by reason thereof he is not now able to meet the decretal obligations, is to pose the analogy of a drunk man pleading innocent to a charge of speeding because he was so drunk he did not know what he was doing, which, of course, as you know, is no defense at all.
“It’s all well and good to show a change of circumstances, but when those changes are wrought by the affirmative and knowledgeable action of the person himself, then he has no standing to come into a court of equity and ask relief from the burden that he voluntarily has assumed. In the opinion of the Court, petitioner has not made a prima facie case, and the demurrer should be, and is, sustained. The petition is dismissed at the cost of the petitioner.”
As sympathetic as we are with the problem confronting the Chancellor and his evident recollections of the divorce case so recently before him, we nevertheless conclude that the evidence offered by Mr. Pults required that it be weighed in the scales of reasonableness, and its force tested in the balances of equity and justice. We think the excellent opinion of the Chancellor clearly demonstrates that there was such a weighing and test- tug, and such weighing and testing are not to be done in ruling on a demurrer to the evidence. The demurrer should have been overruled, so the Court could do the required weighing and testing.
It is true that Mr. Pults was drawing an annual salary of only $6,000.00 a year when the divorce decree was granted, as compared with the salary of $12,000.00 a year before the divorce suit was instituted; so Mr. Pults made no case on decreased earning capacity; but he did show expenses which he detailed amounting to $7,107.23 a year. Some of these expenses were for interest on the mortgage that he put on his house to make the property settlement with Mrs. Alice Pults; some of the expenses were for repairs and upkeep of the house. While remarriage is not in itself a sufficient change in circumstances to justify in the eyes of the law the reduction of payments by a father for the upkeep of his own children, still the remarriage, coupled with other circumstances, requires a court to weigh the facts in the scales and to test them in the balance of justice and equity. It is this “weighing” that is entirely absent when a chancellor sustains a written demurrer to the evidence at the close of the petitioner’s case. If the Chancellor had overruled the demurrer and the respondent had introduced no evidence and the Chancellor had then on final decision reached the same conclusion, we would have affirmed the decree because there would have been a weighing of the evidence, which is not permitted in passing on a demurrer.
So we must reverse the decree and remand the cause for further proceedings not inconsistent with this opinion; but since this is an equity case we adjudge all the costs against the appellant. | [
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Jim Johnson, Associate Justice.
This is a suit to foreclose a materialman’s lien. Appellant James S. Scott, doing business as Scott Lumber Company, filed suit in Pulaski Chancery Court on May 18, 1962, against appellees, Cornelias Vuurens and Violet K. Vuurens, his wife, Weston R. Coon and Ruth L. Coon, his wife, and Republic Investment Company of Arkansas, seeking-judgment for $5,234.46 against Vuurens and in rem against real property now owned by the Coons and mortgaged to Republic Investment Company, for materials furnished between September 7, 1961 and May 7, 1962, for construction of a house at 3624 Central Street in Little Rock. When building was commenced, Vuurens owned the property and had obtained a construction money mortgage for $7,500.00 from Republic on August 28, 1961. In March when the house was near completion, it was sold to the Coons who executed a mortgage to Republic for $12,100.00, who in turn released Vuurens’ construction money mortgage. Appellant sought to have his judgment (when obtained) be declared paramount to the Coons’ and Republic’s interests in the property, and prayed that the property be sold if the judgment be not satisfied within a fixed time. The Vnurens answered with a general denial and alleged affirmatively that the debt sued on had been fully paid and extinguished. The Coons filed a general denial, and Republic Investment Company admitted the two mortgages, and alleged that the release and satisfaction of the former mortgage was invalid because of failure of consideration and misrepresentations on the part of Vuurens and prayed that the release of the August 28, 1961 construction money mortgage be set aside and that mortgage be reinstated.
Vuurens then filed a counterclaim against appellant alleging that he (Vuurens) conveyed certain other property in which he owned an interest to appellant in full satisfaction of the debt, and that, if the court should sustain appellant’s complaint, then that conveyance should be cancelled.
On October 29, 1962, the Chancellor entered a decree finding that the debt of Vuurens had been fully paid and extinguished, dismissed the complaint with costs taxed against appellant, and dismissed the counterclaim as moot. From that decree comes this appeal.
The principal question involved is whether the parties (appellant and Vuurens) intended that the conveyance of the interest of Vuurens in the other property to appellant be in complete satisfaction of the debt here sued on.
Appellant and Vuurens had been doing business together for three or four years, Vuurens having built 12 houses and appellant furnishing much of the material. At the time Vuurens started to build the Central Street house, he owed appellant a considerable amount of money for materials furnished to other jobs on which the lien time had run. On November 9, 1961, Vuurens paid appellant $1,715.44, and on December 15, 1961, $750.00, which reduced Vuuren’s total indebtedness to appellant to approximately $10,000.00. The part of the total indebtedness sued for here for materials and advances furnished for the construction of the Central Street house is $5,234.46.
Vuurens had purchased ten acres of property in southwest Little Rock from Robert Lowe for the sum of $19,000.00, payable $60 a month, on which he still owed about $7,000.00. Since purchasing the Lowe property, Vuurens had improved and sold two front lots which faced on a highway, leaving about 8% acres in the tract. Vuurens became three months in arrears in his payments to Lowe, and Lowe elected to accelerate the debt and filed suit in Pulaski Circuit Court on February 27, 1962, for the balance owed. An answer was not filed on behalf of Vuurens, however Lowe’s attorney testified that he advised Vuurens’ attorney it would not be necessary to file an answer if the arrears were paid to date. Lowe’s attorney was later advised by Vuurens’ attorney that appellant might pay the arrearage and assume the obligation. On April 20, 1962, Lowe and his attorney went to appellant’s office where appellant exhibited a quitclaim deed from Vuurens and his wife and stated that he and Mr. Vuurens had worked out an arrangement whereby he (appellant) was to make an assumption of this obligation. Appellant thereafter paid the arrears, attorneys fee and court costs and assumed the obligation.
There is no dispute about the amount that Vuurens had purchased from appellant, or the amount he paid appellant, and that Vuurens and his wife conveyed the Lowe property to appellant. Virtually all other testimony appears to be disputed.
The value of Vuurens’ equity in the Lowe property is disputed — the testimony ranged from $1,000 (appellant’s testimony) to around $10,000 (Vuurens’ testimony) . Expert witnesses for both appellant and appellee testified as to the value of the property in acreage. This 8% acres was located adjacent to a new subdivision (Twin Lakes). One of appellant’s experts testified on cross-examination that there would be between 3 and 3% lots per acre involved in this property and that he knew that two lots were sold on this property (out of the original 10 acres) where the F. H. A. permitted $1,500.00 per lot evaluation.
Vuurens testified that he conveyed the Lowe property to appellant in satisfaction of his entire account, including the account here sued on, and also testified that after the conveyance he received no further statements of account from appellant. Appellant testified that Vuurens told him he had lost the property because his attorney hadn’t answered the suit and that the only consideration for the quitclaim deed was his (appellant’s) paying the arrearage, court costs and attorneys fee and assuming the balance of the obligation. However, in appellant’s deposition taken prior to trial, it was shown that appellant testified in eight different places that he had paid Vuurens a $100.00 consideration mentioned in the deed. Appellant therein stated that he paid the $100.00 “by cash”; that the record “wouldn’t show up in my company books ’ ’; that he ‘ ‘ just paid him” and “without receipt”; that the $100.00 was the only consideration; that he told Vuurens the $100.00 was all that he was to get; that he paid Vuurens the $100.00 when the deed was delivered to him at the appellant’s store; and that the phrase “$100.00 and other valuable considerations sounds like a legal term to me.” Yet at trial the testimony was that it “gradually came back to him that he had not paid Vuurens $100.00.” Appellees argue in effect, and we agree, that it would be inconsistent for appellant to maintain that he paid Vuurens $100.00 and at the same time contend that Vuurens owed him over $10,000.00 on several accounts.
Appellant testified that since Vuurens did not direct him where to apply the November and December payments, he applied them against Vuurens’ old accounts. The escrow agent for the National Abstract Company (handling disbursement of the construction money) testified that she called appellant just- after each of the payments to be sure that the payments were credited against the account on the Central Street house. She also testified that prior to but while in the process of closing the Coon loan, she called appellant to be sure Vuurens was paid up, and that appellant advised her that his account was “closed in full.” Appellant while admitting the telephone conversation with the escrow agent vigorously disputed the contents thereof. The record reveals that approximately two months elapsed between this conversation and the filing of the present law suit. In. the meantime, on April 20, 1962 the quitclaim deed to appellant was executed.
Testimony on other material points is similarly conflicting. This court stated in Dearien v. Lancaster, 221 Ark. 98, 252 S. W. 2d 72, “With the testimony about evenly balanced we are not in a position to say that the chancellor’s conclusions were wrong. The vital issue was that of credibility, and his opportunity to decide that question was immeasurably better than ours.” We have examined the record and testimony closely, and on trial de novo we cannot say that the chancellor’s findings are against the preponderance of the evidence.
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] |
Sam Robinson, Associate Justice.
In the exercise of the right of eminent domain, the Arkansas State Highway Commission condemned for highway purposes, a strip of land 13 feet wide across the front of two tracts of land owned by appellee, Charles H. Wilmans, in Jackson County. The damages estimated by appraisers for the Highway Commission amounted to $6,275.00. We will designate the separate parcels as the north and south tracts. In the north tract there are 132 feet facing the highway. On this property there were located two buildings, one containing a liquor store and the other a beer parlor. The south tract had no improvements. The jury returned a verdict for the property owner, appellee, in the sum of $19,500.00. The Highway Commission has appealed.
The principal issue on appeal is whether the trial court erred in refusing to strike the testimony of certain witnesses who testified for the property owner as to the value, the witnesses having testified that in arriving at an opinion of the damages suffered by the owner, they took into consideration the profits of about $10,000.00 annually the appellee earned from the operation of the liquor and beer business.
Testimony about the profits was developed in this manner: The attorney for the property owner questioned the witnesses about their knowledge of property values and then asked them the value of the property before the taking, the value after the taking, and the resulting damages.
One witness, Mr. Buffington, testified to a value of $2,000.00 on the south tract before the taking and a value of $1,500.00 after the taking, thereby showing damages by reason of the taking of the south tract of $500.00. He then testified that the value of the north tract was $40,000.00 before the taking and $9,367.60 after the taking, thereby showing damages of $30,632.40 by reason of the taking of the strip across the north tract. The witness was not asked any questions on direct examination about how he arrived at the valuation before and after the taking. On cross-examination, he was questioned about how he arrived at such valuations. It then developed that in reaching an opinion as to value he had taken into consideration the profits earned in the business located on the property. He also took into consideration the value of personal property located on the premises. Mr. Buffington testified:
“A. . . . In order to get a true value on that, actual value of the property, I went to Mr. Wilmans and got his figures on his volume of business for the last three years and according to that volume of business this property would make, bring back $40,000.00 in four years, which would make it in my opinion a fair value. Most investments would have to retire over a longer period of time but this particular type of business is hazardous in that the area could be voted dry and the value of this property, its best value was due to its location, it being the first business of this type on 67 Highway next to a dry area, a long stretch of dry area, so I felt like I would almost have to take that into consideration in valuing the property.
Q. Who operates this business?
A. Mr. Wilmans.
Q. And you say it would make a profit of $40,000.00 in four years?
A. It did an average for the last three years of a hundred and one thousand per year, three hundred and three thousand in a three year period through ’61; ten percent of that would be just a little over $10,000.00 a year net. I took ten percent of the gross; I don’t know what his profits were; but after talking to several people in this type of business they tell me that ten percent of your gross would be a mighty close figure to your net profit after taxes and insurance.
Q. Using this figure of a net profit of $10,000.00 you arrived at the value of $40,000.00 for the property?
A. No, I took that into consideration in evaluating the property. I took into consideration that, the profits made in this business, due to its good location would get a man’s investment back in four years; to stretch it any further than that wouldn’t be a good basis to figure it. I took that into consideration.”
The attorney for the Highway Commission promptly moved to strike all of this witness’ testimony because he had stated that he took into consideration the profits of the business in arriving at the $40,000.00 value of the property before the taking. The motion to strike was overruled. It will be noticed that the motion was to strike all of the witness’ testimony. His testimony regarding the valuation of the south tract did not take into consideration any profit. That property was unimproved; hence, the objection to using profits made in a business as a basis for the valuation of the property is not applicable to the south tract, and the witness’ testimony concerning the south tract was admissible. The court was therefore correct in overruling the motion to strike all the testimony of Mr. Buffington. “A motion to exclude all the testimony of a witness is properly overruled if a part of it is competent. ’ ’ Nichols v. State, 92 Ark. 421, 122 S. W. 1003.
The situation is different in connection with the testimony of James Parish, a witness for appellee property owner, on valuation. He gave his opinion that the north tract was worth $35,000.00 before the taking and was worth $3,500.00 after the taking, resulting in damages to the north tract of $31,500.00. He was not asked on direct examination how he arrived at the before valuation of $35,000.00. When it was developed on cross-examination that he had taken into consideration the profits from the business in reaching that valuation, the attorney for appellant moved to strike his testimony regarding the $35,000.00 value. The motion was overruled. It should have been granted.
In Arkansas State Highway Commission v. Addy, 229 Ark. 768, 318 S. W. 2d 595, it was pointed out that witnesses who testified as experts on the value of the property and the damages, stated that they considered the profit derived from the operation of a business in reaching their appraised value. This court held that it was improper to consider profits of the business in arriving at the value of the land. The judgment was, accordingly, reversed.
In Hot Spring County v. Crawford, 229 Ark. 518, 316 S. W. 2d 834, the court said: “. . . A real estate appraiser testified that in determining- damag-es to the Crawford land he capitalized this $4,000.00 net profit per annum and used the result as a factor in fixing the Crawfords’ damag-es . . .”. It was there held that the net profit of a business could not be considered as a factor in arriving- at the damages to the land. To the same effect is Hot Spring County v. Bowman, 229 Ark. 790, 318 S. W. 2d 603. This view is sustained by the great weight of authority. In a note in 16 A.L.R,. 2d 1113, the annotator says: “With remarkable unanimity the American jurisdictions hold that evidence of profits derived from a business conducted on property is too speculative, uncertain, and remote to be considered as a basis for computing or ascertaining the market value of the property in condemnation proceedings. The reason for this rule is that the profits of a business do not prove the value of the property upon which it is conducted, since they depend on other considerations, such as market conditions and the skill and knowledge of the proprietor of the business.”
But appellee argues that the fact that appraisers for appellee considered the profits of the business in arriving- at a valuation was brought out on cross-examination and that therefore the trial court did not err in overruling- the motions to strike.
Appellee relies on the case of Arkansas State Highway Commission v. Kennedy, 234 Ark. 89, 350 S. W. 2d 526. There, it was developed on cross-examination by the highway attorney that an appraiser, a witness for the landowner, had considered what the Commission had paid for other lands in the community. The price paid for other condemned lands is not proper basis for valuation in a condemnation proceeding. In that case, however, the court instructed the jury not to consider that part of the witness’ testimony regarding- price paid to others. Moreover, the Kennedy case is distinguished from the case at bar by the fact that the witness for Kennedy did not testify as to any price paid by the High way Commission for other land. Such prices could have been a great deal less than the Highway Commission witness appraised the value of the land involved in the particular case on trial at the time. Certainly, in the case at bar, if the property owner had been operating his business at a loss of $10,000.00 per year instead of a profit in that amount, the fact that the appraisers took such loss into consideration would not have been prejudicial to appellant.
It is firmly established that profits from a business can not be used as a criterion for value of property in an action such as the one in the case at bar. Witnesses for appellant had not stated on direct examination how they arrived at the value they placed on the property. Appellant could not have complained because a witness gave no basis for his opinion as to value if there had been a failure to cross-examine on that point. The court said in Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S. W. 2d 436: ‘ ‘ Two of the witnesses, Bob Q-elly and Joe Snelly, were real estate dealers in Crawford county. After having first stated that they were familiar with land values in the vicinity of the Johns property and that they had inspected this property, both these witnesses expressed their opinion as to the fair market value of the appellees ’ property before and after the taking. The appellant made an unsuccessful attempt to have this testimony stricken, on the ground that neither witness had stated the facts and reasons forming the basis for his opinion. ... It was incumbent upon counsel for the appellant to support their motion to strike by showing that the landowner’s expert witnesses had no reasonable basis for their opinions. Counsel actually made no effort in that direction, the motion to strike Snelly’s testimony having been made without any cross-examination at all. Thus there was a complete failure to overcome the prima facie admissibility of the testimony that was challenged.”
In the case at bar, the attorney for appellant did cross-examine and show that the witness had used an invalid basis in fixing value.
Reversed and remanded. | [
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Paul Ward, Associate Justice.
This litigation grows out of a series of business transactions in connection with the hatchery business. Appellant Wayne Wyatt, ■who owned equipment and facilities for such business, evidently was encountering financial difficulties early in 1958. In February of that year he executed two chattel mortgages on the above mentioned personal property £or about $5,000, and he also executed a loan agreement with appellee wherein the latter was to loan him several thousand dollars. One of the mortgages above mentioned was made directly to appellee and he acquired the other one by assignment.
Appellee filed two separate complaints against appellants to collect certain notes and to foreclose certain securities. Said suits were docketed as number 5485 and 5501. The issues involved can be best indicated by setting out the substance of each complaint.
In suit number 5485 it was alleged that appellants were indebted to appellee in the total sum of $7,000 (plus interest) on four separate written notes: One note for $2,000 was made to G. V. Coker, dated February 10,1958, and assigned to appellee; note for $1,750 made to appellee, dated December 5, 1958; note for $2,000 made to appellee, dated November 24, 1958; note for $1,250 made to appellee, dated December 15, 1958. It was also alleged that the payment of said notes was secured by chattel mortgages.
In suit number 5501, between the same parties, appellee asked judgment against appellants in the sum of $5,000 (plus interest) based on four notes signed by appellants as follows: note dated February 26, 1958 for $2,000; note dated March 12, 1958 for $1,000; note dated March 15, 1958 for $1,000; and, note dated March 26, 1958 for $1,000. The above notes were secured by a mortgage on what was called the Steprock Gin property.
In answer to the above complaints appellants admitted signing a $2,000 note, denied signing certain notes, and stated they had no knowledge concerning other notes. Mrs. Wyatt, in a separate answer, stated that she was a tenant in common with her husband of certain personal property (listed in the chattel mortgages) and that she had never encumbered any of it.
Mr. Wyatt, in a twenty page cross-complaint, asks for $8,027.81 for breach of a “confidential contract” and $7,083 for loss of equity in certain property.
By proper order of the trial court the two causes of action were consolidated for purpose of trial, and the issues were tried under docket number 5501.
After an extensive hearing the trial court refused to allow appellant (Wyatt) anything on his cross-complaint, and entered a decree in favor of appellee in the sum of $5,000 (with $1,790 interest) against appellants, impressing a lien on the “Steprock Property”, and in the sum of $7,000 (with $1,781 interest) secured by the Coker mortgage. Prom the decree appellants prosecute this appeal, relying on the points hereafter discussed for a reversal.
One. Appellants state
“That there is no evidence upon which to substantiate the finding of the lower court that Appellants were not entitled to any damages for breach of contract by Appellee.”
Appellants apparently overlook the fact that the burden was on them to prove the terms of a contract, that it was broken by appellee, and the amount of damages resulting from such breach. The testimony relative to the above items is involved and conflicting, and it would serve no useful purpose to set it out in full. The chancellor heard the testimony and specifically found appellants failed to establish their claim. In arguing this point appellants have not called our attention to any testimony which indicates the chancellor’s finding is not supported by the weight of the evidence.
T%vo. We find no merit in the contention
“That Appellee was not entitled to judgment for the sum of $5,000.00 on the Coker mortgage because of the Clean Hands Doctrine.”
To support that contention appellants say:
. . the purpose of Appellee’s purchase of the Coker mortgage was to secure a preferred position for Appellee over the Quaker Oats Company mortgage. This was to be accomplished by the purchase of the valid $2,000.00 mortgage which Appellant admits is a just debt and is due Appellee, and by making supposed advances thereunder in the same amount as was secured by other property, referred to as the Steprock property, whereupon Appellee promised to release the Step-rock mortgage.”
Appellants say that appellee gave them checks on the First National Bank of Heber Springs, that they endorsed them and returned the money to appellee. This is emphatically denied by appellee. We can hardly agree with appellants that it “was peculiar that it was necessary for appellee to go to Heber Springs and discuss the business with the president of the bank . . .”, absent a showing of what was discussed. On the other hand, the bank president testified that, according to their records, Wayne Wyatt got the money on the checks. In the absence of more convincing evidence to the contrary, we must sustain the chancellor in concluding, in effect, that appellee came into court with “clean hands”. In fact it would appear that Wyatt and appellee are pretty well on the same level in respect to the condition of their hands.
Three. We do not agree with appellants’ argument that
“Appellee is estopped by his pleadings to assert a secured claim for $2,000.00 represented by promissory note or otherwise.”
This argument is based upon two exhibits purporting to be pleadings in a suit between different parties and in a different court. The exhibits show that appellee (represented by a different attorney) claimed a certain $2,000 note (signed by appellants) was unsecured. It is their conclusion, therefore, that appellee is estopped in this case to assert the note is secured. We think a sufficient answer is that some twenty notes were executed by appellants to appellee and that there is no positive evidence to identify the note in question.
Finding no reversible error, the decree of the trial court is affirmed. | [
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Jim Johnson, Associate Justice.
This appeal involves the question of whether a land owner received notice of condemnation of part of his land for highway purposes by the County Court and was thus afforded an opportunity to seek just compensation.
In 1927 the Crawford County Court entered an order condemning a right of way for U. S. Highway No. 71 from Fine Springs south to Alma. The order condemns a right of way 35 feet wide to the right or west side of the centerline of an existing county road. In 1932 appellees R. P. Dean and wife purchased two acres of land on the west side of Highway 71, one acre from J. A. Bradley and one acre from S. M. Denniston. The county records reflect payment of compensation to Bradley, but no record of payment to Denniston for the property condemned. This action involves the land purchased from Denniston.
In 1961 the Highway Commission began reconstruction of Highway 71 and in so doing entered upon the entire 35 feet of right of way west of the centerline. In 1962 appellees filed an action for an injunction against Standard Industries, Inc., the contractor doing the reconstruction, seeking to enjoin them from trespassing on appellees’ land. Appellant, the Arkansas State Highway Commission, as the real party defendant, was permitted to intervene in the action. At trial the parties entered into the following stipulation:
(1) that a valid order of the Crawford County Court of August 10, 1927, condemns the original right of way for U. S. Highway 71 and that this order condemns a right of way of 35 feet to the right (west) of the center-line between Stations 180 and 185 which is across the property deeded to appellees by Bradley and Denniston;
(2) that the county record books reflect that Bradley was paid just compensation for condemnation of his property under the 1927 condemnation order;
(3) that although the county records show payment to a number of people pursuant to the court order, there is no record of payment to Denniston;
(4) that the question presented to the court by the stipulation was whether notice of the condemnation of 35 feet of right of way west of the centerline of U. S. Highway 71, by means of the order of the Crawford County Court dated August 10, 1927, was ever given to the owner of the land so condemned so that he was afforded an opportunity to seek just compensation for the property from the county court;
(5) that a portion of the area lying between the centerline of U. S. Highway 71 and a line 35 feet from the centerline has been used and maintained as a highway since 1927, so that even if the Court finds that the owner of the land never received notice of the taking, yet the plaintiffs (appellees) will not be entitled to an injunction to keep the Highway Commission from entering upon the whole 35 foot area; and if the court holds against the Highway Commission on the question of notice, then it will make a factual determination of the area actually used and maintained for U. S. Highway 71;
(6) that if the court holds against the Highway Commission the landowner will be permitted to seek his just compensation from the Crawford County Court for the taking of the property in question and the Highway Commission will be required to put up an open-end indemnity bond guaranteeing payment of just compensation to the plaintiffs in case the Crawford County Court is financially unable to pay the claim of the plaintiffs.
In its opinion, the trial court set out the stipulation in full, discussed the testimony of appellant’s two witnesses and exhibits, as well as appellee’s testimony, and found that the area lying between the centerline of Highway 71 and a line 17 feet west of the centerline had been condemned, but that the property lying west of that had not been condemned and is the property of appellees; the court then stated that appellees would be permanently enjoined from interfering with the construction work and that they would be permitted to seek their just compensation from the county court for the taking of the property lying between 17 and 35 feet west of the centerline of Highway 71, across the acre purchased from Denniston, and then required the Highway Commission to file a bond guaranteeing payment of just compensation to appellees in case the county court is financially unable to pay appellees’ claim. The decree was entered September 11, 1962, from which the Highway Commission has appealed.
For reversal appellant contends that the period of limitation of one year contained in the County Court Condemnation Act [Ark. Stats. § 76-917] bars any claim for just compensation for the property disputed between the parties.
The question here presented is whether such notice of the county court order of 1927 was ever given to the owner of the land condemned as would afford the owner an opportunity to seek just compensation for his property within the one-year statutory limitation.
Where, as here, there was no payment of compensation for the taking of land and no publication of notice proved, the burden is on appellant to prove that the landowner had actual notice of the taking of his land. Arkansas State Highway Commission v. Anderson, 234 Ark. 774, 354 S. W. 2d 554.
Appellant attempted to prove notice by testimony on ditching and fencing, that is that the Highway Department cut ditches 29 to 35 feet from the centerline in 1932 and had all fences moved back to 35 feet from the center-line, which were such acts of sovereignty by the Highway Department as to put the land owner on notice. Appellant’s witness, a draftsman for the Highway Department, testified that examination of old records of the Highway Department showed that the contractor was reimbursed for moving fence, but admitted that it was not possible to tell from the old records exactly what stations were involved in moving the fence; that the records simply made reference to so many rods of fence and did not indicate where they were. Appellant’s other witness, a highway engineer, testified that it was customary in 1927 to cut ditches 29 to 35 feet from the centerline, but was unable to testify about the ditch on the property here involved. On the other hand, appellee testified that some of the Bradley acre had been fenced, but that there was no fence on the Denniston acre when he purchased and moved onto that unimproved property. He further testified that there was a ditch 7 or 8 feet from the edge of the slab which he filled in in 1932. (The slab extended west 9 feet from the centerline.) To bolster appellees’ contention that no entry was made beyond 17 feet west of the centerline until the present widening of Highway 71 was commenced, he offered the description of the property deeded him which runs, “West 17 feet to a point on the north line of said forty acre tract, which point is 8 feet west of the west side of the concrete slab of Highway No. 71.”
There was some evidence taken from appellant’s exhibits which indicated the straightening of a slight curve or jog in the existing county road over which Highway 71 was constructed along the front of appellees’ property; even so, taking the evidence as a whole, we cannot say that the Chancellor’s finding that appellant failed to meet the burden of proof was against the preponderance of the evidence.
This court has consistently held that an action of the State Highway Department in improving and paving an existing road is insufficient to put adjoining property owners on notice that additional lands were being taken so as to set in motion the one year statute of limitations for the filing of claims for the taking of lands under a county court condemnation order. Bollinger v. Arkansas State Highway Comm., 229 Ark. 53, 315 S. W. 2d 889; Arkansas State Highway Comm. v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283; Arkansas State Highway Comm. v. Anderson, supra. In the absence of such notice, the decree is affirmed.
McFaddin, J., concurs; Smith and Robinson, JJ., dissent. | [
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] |
Frank Holt, Associate Justice.
This action began by the Cameron Crude Oil Corporation filing a Bill of Inter-pleader for the purpose of determining the true owners of certain oil royalties it holds so that Cameron would know to whom the royalties legally should be paid. The interpleader, Cameron, is the owner and operator of a pipe line and purchases and runs crude oil from oil wells which include two wells on the property in question. Cameron has accumulated and paid the funds into the registry of the court.
The appellant, Marie E. Darsow, claims she is the sole owner of these funds. The appellees, Letha K. Landreth and numerous other parties hereinafter named, claim they, and not Marie E. Darsow, are the owners thereof. Darsow asserts that her claim arises from a deed dated May 4,1923, executed by Ben and Minnie Fife.
The primary issue involved in this case is the construction and interpretation of this deed which is a “Mineral Deed and Royalty Contract” conveying an undivided one-half interest “in and to all of the oil, gas and other minerals” that might be produced from certain described lands in Bradley County, Arkansas.
The deed recites that the consideration of $200.00 was paid by V. C. Wall; the granting clause designates Susie C. Eikner as the grantee of an undivided one-half interest in the property in question; the granting clause recites further that the deed is subject to an oil and gas lease [same date as deed] from Fife to Wall, the delay rentals clause is in favor of “V. C. Wall or her heirs or assigns,” that in the event the lease is allowed to become ineffective for any reason “the lease interest and all future rentals on said land, for oil, gas and mineral mining privileges shall be owned jointly by Ben Fife and V. C. Wall;” the habendum clause is in favor of “Y. C. Wall and unto his heirs and assigns forever”; the deed recites the grantors are “to warrant and forever defend” said property “unto the said V. C. Wall and unto her heirs and assigns; ’ ’ the release of dower and homestead rights by Minnie Fife was “unto and in favor of the said Y. C. Wall.” This deed was recorded as of May 19, 1923 and is hereinafter referred to as the ‘ ‘ Eikner Deed.” [Emphasis added]
As stated, this deed was dated May 4,1923. On June 26, 1923, V. C. Wall and Maggie B. Wall, his wife, reconveyed this same property by quitclaim or release deed to the Fifes. This quitclaim or release deed is recorded as of September 19, 1923. Hereafter it is referred to as the “Wall Deed.”
Ben Fife died intestate prior to 1929. Beginning in 1929, Ms widow and heirs made several conveyances through which the undivided one-half interest in question was conveyed to and is now claimed by the following persons: Letha K. Landreth, 1/8; Sue Turley Montgomery, 1/16; W. Shannon Goodwin, Olive L. Goodwin and Mary G. Meinert, 1/64; Wong Wingshear, 1/32; Wong Sam 1/32; First Presbyterian Church of El Dorado, Arkansas, 1/64; Roy Fife, 7/192 and Dr. J. G. Ferguson, 35/192. These parties are the appellees.'
The proportions claimed by the appellees add up to an undivided one-half interest which is the same undivided one-half interest claimed by the appellant, Marie E. Darsow, through the “Eikner Deed.”
Marie E. Darsow, the appellant, is the daughter of Susie C. Eikner, now deceased. On July 5, 1953, Susie C. Eikner conveyed the undivided one-half interest in question to her said daughter. This deed is recorded as of September 4, 1953. We shall refer to it as the “Darsow Deed.”
The trial court held that the “Eikner Deed” created a resulting trust in favor of V. C. Wall; that Wall, as such cestui que trust, reconveyed to the Fifes by the “Wall Deed” all the interest the Fifes had conveyed by the “Eikner Deed;” that the execution of the “Darsow Deed” was a violation of the trust by the trustee, Mrs. Eikner, under the ‘ ‘ Eikner Deed ’ ’; that Darsow is not a bona fide purchaser; and ordered Darsow, as successor to the trustee, to execute a deed to the appellees.
From this decree the appellant, Darsow, brings this appeal and for reversal relies on five points which, for purposes of discussion, will be merged into two major points:
1. The court erred in finding a resulting trust in favor of V. C. Wall.
2. Even if a resulting trust were created, the court erred in not finding Darsow to be a bona fide purchaser who took free of the trust.
We agree with the trial court’s interpretation and construction of the “Eikner Deed” that a resulting trust was created. In this case the consideration was paid by Y. C. Wall and the title taken in the name of Mrs. Susie C. Eikner.
“Resulting trusts arise where the legal estate is disposed of or acquired, not fraudulently or in the violation of any fiduciary duty, but the intent, in theory of equity, appears or is inferred or assumed from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal title. In such case a trust results in favor of the person for whom the equitable interest is thus assumed to have been intended, and whom equity deems to be the real owner.” Stacy v. Stacy, 175 Ark. 763, 300 S. W. 437, quoting from Bray v. Timms, 162 Ark. 247, 271 and 272, 258 S. W. 338.
“* * * In Murchison v. Murchison, 156 Ark. 403-407, 246 S. W. 499, 500, we said: ‘while it is necessary that the proof to establish a resulting trust should be clear, satisfactory and convincing, it is not essential that it be undisputed.’ In Reeves v. Reeves, 165 Ark. 505, 264 S. W. 979, we held, quoting syllabus: ‘In order to constitute a resulting trust, the purchase money or a specified part of it must be paid by another, or secured by another at the same time or previously to the purchase, and must be a part of that transaction.’ ” Stacy v. Stacy, supra.
The deed itself is the best evidence that a resulting trust was intended. In this deed there is a solemn recital that V. C. Wall paid the consideration of $200.00 and took the title in the name of Mrs. Susie C. Eikner. Mrs. Eikner’s name does not appear again anywhere in this deed, although the name of Y. G. Wall, as previously stated, appears several times in other vital portions of the deed. This court has held that a resulting trust can arise by implication of law and by the circumstance that the money of the real purchaser [Wall] and not that of the grantee [Eikner] in the deed forms the consideration. Stacy v. Stacy, supra; Wilson v. Wilson, 211 Ark. 1030, 204 S. W. 2d 479.
A resulting trust must be established by evidence that is clear, convincing and satisfactory. Wilson v. Wilson, supra; Keith v. Wheeler, 105 Ark. 318, 151 S. W. 284. We think the evidence in this case meets these requirements. Not only does the “Eikner Deed” reflect proof of a resulting trust, the subsequent quitclaim deed shortly thereafter from Wall to the Fifes reaffirms such intent of the parties.
However, where the purchase price is paid by one party, such as Wall in this case, and the title is taken in the name of another, such as Mrs. Eikner, this presumption of a resulting trust is rebuttable. Dobbs v. Dobbs, 225 Ark. 397, 282 S. W. 2d 812. On this issue the court found that Mrs. Eikner was never in possession of the “Eikner Deed”; that Mrs. Eikner did not recognize that she had any interest in the disputed property until 1953 when an agent for an oil company approached her about securing an oil and gas lease on the property in question, after which she deeded it to her daughter, Mrs. Darsow. There was no proof that Mrs. Eikner furnished the money for the consideration. According †«< Mrs. Darsow, Mrs. Eikner’s brother was in El Dorado, Arkansas during 1923 and was using some of Mrs. Eikner ’s money to lease and purchase mineral interests in Arkansas. There is no proof that the brother knew Wall, but according to Mrs. Darsow, her mother was acquainted with Wall. The court also found there is no evidence or proof that Wall was the agent for the grantee, Mrs. Eikner, in this transaction.
We agree with the trial court that this proof is insufficient to rebut the proof of a resulting trust when considered in the light of the solemn recitals of the “Eikner” and “Wall” deeds.
Appellant contends that there was no consideration paid by Wall to the Fifes for the May 4, 1923 deed and, therefore, there can be no resulting trust in favor of Wall who did not pay any consideration. The answer to this argument is simple and brief. The deed from the Fifes to Wall recites:
“* * * for and in consideration of the sum of Two Hundred Dollars ($200.00) to ns cash in hand paid by Y. C. Wall of El Dorado, Arkansas, the receipt whereof is hereby acknowledged, * * *.”
We have held that: “* * * Parol testimony is admissible to show the true consideration upon which a deed rests, but may not be used to show there was no consideration.” Mitchell v. Smith, Adm., 206 Ark. 936, 175 S. W. 2d 201. [Emphasis added] See also Toney v. Raines, 224 Ark. 692, 275 S. W. 2d 771. The testimony of Mrs. Minnie Fife Shinpoch, widow of Ben Fife, that Wall did not pay the $200.00 as recited in the deed was inadmissible to destroy this resulting trust. Therefore, appellant offers no valid objection on this point.
A beneficiary of a resulting trust, such as Wall, may transfer his interest. Honnett v. Williams, 66 Ark. 148, 49 S. W. 495; Restatement of Trusts, 2d, § 407; Scott on Trusts, § 407. V. C. Wall had a right to reconvey to the Fifes all his beneficial interest that had been conveyed under the “Eikner Deed”. This quitclaim deed terminated the interest of Wall and left Mrs. Eikner, who had the naked legal title, with no further interest in the disputed property. This reinvested in the Fifes title to the questioned property and made it subject to valid transfers by them to the appellees.
The appellant contends that even if the “Eikner Deed” created a resulting trust, Marie Darsow is still entitled to the one-half undivided interest as she is a bona fide purchaser of the interest from the trustee. It is true that a bona fide purchaser from the trustee takes the property free of the trust. Ellis v. Nickle, 193 Ark. 657, 101 S. W. 2d 958. The essential elements of a bona fide purchase are: (1) valuable consideration, (2) the absence of notice, and (3) the presence of good faith. Manchester v. Goeswich, 95 Ark. 582, 130 S. W. 526.
As stated by the trial court, the transaction was between the mother and daughter; the consideration was nominal with no independent evidence of payment of the consideration; the daughter had actual knowledge that the mother did not have possession of the “Eikner Deed”; and Mrs. Darsow had record notice of the resulting trust in the “Eikner Deed” since such deed and the “Wall Deed” were recorded in 1923. Therefore, it cannot be said under the proof in this case that Mrs. Darsow is a bona fide purchaser.
Having carefully reviewed all the points relied upon by appellant, we are of the view that the trial court is correct and its decree is accordingly affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This is the second appearance of this case in this Court. The first appeal is Hinton v. Bryant, 232 Ark. 688, 339 S. W. 2d 621; and reference is hereby made to that opinion for the background facts. On the first appeal we held that certain platform scales were realty and passed with the transfer of the land, but that improper evidence had been introduced : so we remanded the cause for a new trial, and we took occasion to remark:
“The appellant also complains that the appellees failed to show that he is legally responsible for the removal of the scales, which were taken away by third persons not parties to this suit. We do not find it necessary to reach this question. Owing to the error indicated the case must be retried, and upon a new trial the plaintiffs may offer additional evidence tending to fix responsibility upon the appellant ...”
On the new trial, the Circuit Court — a jurj^ being waived — rendered judgment for Bryant for $595.00; and from that judgment Hinton gave notice of appeal and designated a partial record and a definite point, as follows :
“Come now the defendants and designate as the record on appeal herein all the testimony and exhibits thereto of James B. Bryant and also all the testimony and exhibits thereto of W. L. Hinton, together with all the pleadings and judgment of the Court in this cause.
“The point to be argued on appeal in this cause is the sole question of whether or not W. L. Hinton is liable to the plaintiffs under the testimony of James B. Bryant and Walter L. Hinton. The question of the amount of damages and value of the scales will not be a point in the appeal. ’ ’
Bryant made no additional designation; so we have before us now only the testimony of Bryant and Hinton in the designated point of whether Hinton is liable. Since no additional portions were designated by appellee, we decide the question on the designated record before us. Manila School Dist. v. Sanders, 226 Ark. 270, 289 S. W. 2d 529; Kimery v. Shockley, 226 Ark. 437, 290 S. W. 2d 442. Bryant testified that he purchased a 10-acre tract from Hinton by deed dated January 4, 1958, and the platform scales were then attached to the premises; that he rented the premises to Hinton for a short time; that later he acquired possession of the premises; that after he acquired possession of the premises the scales were removed without his consent; and that the damages to the premises amounted to $2,000.00. Bryant did not testify as to who removed the scales.
Hinton testified: that he sold the land to Bryant; that he sold the scales to Tyson Feed & Hatchery for $250.00 during the time he had the land rented; that he ended his rental contract and delivered possession of the premises to Bryant on March 1,1960; that the scales were still on the premises when he delivered possession to Bryant; and that the scales were removed by Capitol City Scale Company after Bryant went into possession of the land. The original check from Tyson Feed & Hatchery to W. L. Hinton for $250.00 was introduced in evidence. It is dated April 21,1959, and Hinton testified that the check represented the amount for which he sold the scales to Tyson. Just why Tyson did not remove the scales when he purchased them is not shown; nor is it shown that Tyson had anything to do with the removal of the scales by Capitol City Scale Company. Here is Hinton’s testimony:
“Q. Mr. Hinton, you testified that you didn’t deliver any scales to Tyson?
A. No.
Q. It has been testified by Mr. Bryant that the scales were taken away from his property. Were yon there when they were taken away %
A. Well, I wasn’t in possession of the property, no, sir.
Q. Do you know who took them away?
A. Yes.
Q. Who was it?
A. The Capitol Scale Company in Little Bock.
Q. How do you know that?
A. I saw them. In passing by there, I saw them taking the scales out.
Q. That’s all you know about it?
A. Well, yes, that’s all I know. Mr. Bryant was present there at the time.
Q. I say, is that all you know about the removal of the scales?
A. Yes, that’s ail I know.
Q. Did you authorize anybody to remove the scales?
A. No, sir ...
Q. Did you ever sell, or deal, any with the Capitol City Scale Company?
A. No.
Q. Did you sell them the scales?
A. No.
Q. Did you have any dealings with them whatsoever ?
A. No, sir.”
Giving all possible inferences which the trier of the facts was privileged to draw, we still have a situation before us in which the record shows that Hinton sold the scales to Tyson for $250.00 and that after Bryant went into possession of the land the scales were removed by the Capitol City Scale Company. There is absolutely nothing in the record before us to show that the sale of the scales by Hinton to Tyson caused, or resulted in, the removal of the scales by the Capitol City Scale Company. There is no testimon}7' in the record before us to show that the sale of the scales by Hinton to Tyson was the cause of, or resulted in, the Capitol City Seale Company removing the scales from the land. That is the fatal “gap” in the testimony before us.
We have a wealth of cases in Arkansas which hold that one who sells property from the land of another and emeses the property to be removed is liable for trespass. One of the leading cases is Hendrix v. Black, 132 Ark. 473, 201 S. W. 283, L. R. A. N. S. 1918 D 217. There Black owned the land on which Hendrix had a void tax deed. Hendrix executed a timber deed to Edwards, who, under the timber deed, entered on Black’s land and cut the timber. Black recovered against Hendrix and we affirmed, saying:
“In short, the facts fully justified the chancellor in finding that the acts of Edwards under the circumstances were trespasses upon the appellee’s land; that these acts of Edwards were also the acts of the appellant and that the appellant through Edwards committed the trespass upon the appellee’s land. ‘Those who authorize the commission of a trespass are equally responsible as those by whose acts the trespass is committed. ’ State of Maine v. Jesse S. Smith and others, 78 Maine, 260.”
Likewise, in Lewis v. Phillips, 223 Ark. 380, 266 S. W. 2d 68, we held that generally, where a trespass is committed by defendant’s advice or direction, the contractual or other relation is immaterial in determining defendant’s liability. In Lewis v. Mays, 208 Ark. 382, 186 S. W. 2d 178, appellant sent timber cutters into the woods, who cut timber from the appellee’s land. The defense was that the cutters were independent contractors for whose acts the appellants were not liable. We held the appellants liable, saying: “The general rule applicable to the facts here is stated in § 85 of Cooley on Torts (4th Ed.) as fol lows: 'All who actively participate in any manner in the commission of a tort, or who command, direct, advise, encourage, aid or abet its commission, are jointly and severally liable therefor.5 55
If there had been any evidence that the Capitol City Scale Company was acting as the agent of Tyson, then a case would have been made against Hinton. But we cannot say that the trespass by Capitol City Scale Company was caused by the act of Hinton or Tyson. In 127 A. L. R. 1015, there is an Annotation entitled, "Liability of grantor or lessor of property which he does not own to true owner for trespass by lessee or grantee55; and cases are reviewed from many jurisdictions. To the same effect see also American Law Institute’s Restatement of the Law of Torts § 158. But in all the cases that we have found the trespassing person has been the grantee of the person who executed the instrument, or the agent or transferee of such grantee. Here, we find no evidence that the Capitol City Scale Company was in any wise the agent or the remote grantee of Tyson; and so we reverse the judgment and remand the cause for a new trial.
Ward, J., dissents.
That is, as to admission of evidence regarding- damages.
Bryant alleged in the complaint that Hinton: “. . . fifteen (15) months after delivery of said lands to these plaintiffs, unlawfully and without authority sold and delivered said scales to Tyson’s Poultry, Inc., by bill of sale containing covenant of general warranty, dated the 21st day of April, 1959; that on or about the 12th day of June, 1959, Tyson’s Poultry, Inc., acting on the authority of said bill of sale, entered upon the property of these plaintiffs, took possession of and carried said scales away.” Hinton’s answer was: “That the defendants deny each and every material allegation contained in the complaint of the plaintiffs.” So Bryant had the burden of proving his allegations. | [
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Jim Johnson, Associate Justice.
This is a suit for damages arising out of alleged fraud and misrepresentation by a vendor to his vendees as to the location of the boundary lines of a building lot.
Appellants, A. Britt Turner and Lucille Turner, his wife, purchased Lot 10, Block 1, Unit 3 of Arrowhead Lake Estates, on Lake Hamilton in Garland County, from appellee, Arrowhead Land Company, Inc., in 1958, and thereafter during 1959 and 1960 built a house on the lot. After the house was built, appellants discovered that the house was situated partly on Lot 9, the adjacent lot to the west. Appellants then purchased Lot 9, which was owned by a third party, for the. sum of $1,400.00. Appellants thereupon sued appellee in the Garland County Circuit Court, alleging that appellee, previous to their purchase, had misrepresented the property to appellants, by showing appellants the correct corner of Lot 10 on the road and the corner of Lot'9 on the lake, instead of all the true corners of Lot 10, so that appellants thought the lot boundaries ran at an approximate 45-degree angle from the lake to the road. As part of their damages, they further alleged that they were required to pay to the owner of Lot 8 the sum of $50.00 for damage to his lot done by the former owner of Lot 9. By agreement of the parties the cause was tried before the court. The court, sitting as a jury, found that appellants had failed to prove by a preponderance of the evidence that appellee, its agents or employees, was guilty of any fraud or misrepresentation as charged in the complaint, and that appellants failed to prove any damages for which judgment could be rendered. Appellants promptly appealed.
For reversal appellants urge that they sustained their burden in proving allegations of fraud and misrepresentation by a preponderance of the evidence. Where the court sits as a jury, this is not the test. It is axiomatic that the findings of fact of a trial court sitting as a jury have the same force and effect as the findings of a jury, and that such findings of fact will not be disturbed on appeal if there is any substantial evidence to support it. Johnson v. Spangler, 176 Ark. 328, 2 S. W. 2d 1089; Peterson v. Garland County, 188 Ark. 1167, 65 S. W. 2d 18; Wallis v. Stubblefield, 216 Ark. 119, 225 S. W. 2d 322. It is stated further, in Wall v. Robling, 207 Ark. 987, 183 S. W. 2d 605, that:
' ‘ On appeal from the findings of the court in a case of this kind we must give to the evidence adduced on behalf of the prevailing party the strongest probative force that it will reasonably bear. St. Louis Southwestern Railway Co. v. Morgan, 144 Ark. 641, 215 S. W. 589; [and other cases cited].”
Appellants and their witnesses testified that appellee’s salesman showed them the correct corner of Lot 10 on the road and erronously showed them the corners of Lot 9 on the lake as being the corners of Lot 10, which would make the lot boundaries run approximately at a 45-degree angle from the lake to the road. Appellants testified that they saw a plat of the property, and one of appellants’ witnesses stated that the salesman had a copy of the plat with him when they were shown the property and that “when we went around the four corners he showed us the four corners on the plat”. Appellants testimony further showed that there were iron pipes and wooden stakes at the four corners of each lot, that the corners on the road were marked with the lot numbers, but that the stakes at the lake front had no markings.
Appellee’s witnesses testified that the subdivision was laid out by a licensed surveyor, that all lot corners were marked with wooden stakes and iron pipes, that the front corners (on the road) had white stakes with red numbers designating the lot, block and unit number, and that on the corners on the lake the woodeu stakes bore the same markings with blue keel crayon. The surveyor further testified that the brush was cut along lot lines in order to make the survey, some three months prior to appellants’ purchase.
Appellee’s salesman testified that he showed appellants the correct lot corners, that they walked out the corners and lot lines of Lot 10. and that he had a plat with him at the time. Appellee’s manager testified also about the marking and staking of the lots, and further testified that he had instructed all salesmen to “show the true lines and always take the plat with them and acquaint the people with the lot they are getting . . that they had had no difficulty with any other lot in Arrowhead, and that pointing out the wrong lot line would be no advantage but simply cause trouble.
Giving the evidence adduced on behalf of appellee the strongest probative force that it will reasonably bear, as we must, we find that there is substantial evidence to support the finding of the trial court.
Appellants’ second point urged for reversal is that by a preponderance of the evidence appellants’ damages were clearly proven. Although consideration of this point is not necessary for determination of this case, we note from the record that appellants clearly proved their expenditures. However, there is a total failure of proof tending to show that appellants suffered a loss as a result of these expenditures. The record being thus, we cannot disturb the trial court’s finding that appellants failed to prove any damages for which judgment could be rendered.
The judgment is therefore affirmed. | [
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Paul Ward, Associate Justice.
Frances Shelton died on November 8, 1960 leaving a will dated May 4, 1957. The Probate Court of Dallas County entered an order, dated November 18, 1960, admitting the will to probate and appointing appellee, Beulah Brimm, executrix. On November 19, 1960 the executrix signed and posted a notice (as provided by Act 32 of 1953) to all persons having claims against the estate, stating the will had been admitted to probate. The case number of the proceedings was 981.
On May 13,1961 Moses C. Edwards (a nephew of deceased) and his wife filed (or attempted to file) a petition asking the court to revoke the probate of said will and also filed (or attempted to file) a claim against the estate in the amount of $7,433.55. There is no contention by anyone that the petition and claim were not in proper form.
It is the contention of the executrix, based on the factual situation presently set forth, that the above mentioned pleadings were never legally filed. This was also the finding of the trial court.
The record discloses that appellants and one of their attorneys live in Chicago; that said attorney mailed a letter to the probate clerk at Fordyce, Arkansas (county seat of Dallas County); that in said letter was enclosed the petition and the claim (above mentioned) for filing-in case No. 981; and, that the attorney also mailed a copy of the claim to appellee’s attorney of record.
The basic contention of appellee to sustain the decree of the trial court (which dismissed the petition and claim) is that the petition and the claim both were captioned “In the Probate Court of Garland County, Arkansas” when they should have been captioned “In the Probate Court of Dallas County, Arkansas.”
The order of the trial court, in material parts, reads as follows:
‘ ‘ That the files in this case contain a letter dated May 13, 1961, signed by Irving Eisenberg, addressed to the Clerk of the Probate Court of Garland County, Fordyce, Arkansas, enclosing- (1) Petition to Contest Will and (2) Claim of Moses C. Edwards and Ida Mae Edwards of 2210 W. 13th St., Chicago, Ill. Both the Petition to Contest the Will and the Claim show in the caption thereof that they are to be filed in the Probate Court of Garland County, Arkansas . . . The letter dated May 13, 1961, and enclosures were forwarded to the Clerk of the Probate Court of Dallas County, but due to the fact that they were to be filed in the Garland Probate Court, no Notice was given to Beulah Brimm by registered mail as provided by Sec. 113 b of the Probate Code, and no further action was taken thereon.
“The Claim and Petition to Contest the Will were placed in the file of papers in the case of the Estate of Prances Shelton, deceased, in the Clerk’s Office in Dallas County, Arkansas, but were not filed. ’ ’
It is undisputed that appellants had until May 19, 1961 to file the petition and claim. In view of the language used by the trial court, and in the absence of any contention to the contrary, we think the record establishes the fact that the letter, the petition, and the claim reached the clerk of the Dallas County Probate Court before the date above mentioned.
Por reasons presently set out, we think the trial court erred in striking appellants’ petition and claim from the files. Every fact and circumstance indicates that the substitution of the word “Garland” for the word “Dallas” was merely a clerical error or oversight, and that no one was actually deceived, misled, or prejudiced. It is evident from the record that the Chicago attorney used printed forms sent to him by an associate attorney who lived in Hot Springs (Garland County), which forms were printed for use in “Garland” County. There can be no doubt whatever that the papers were to be filed in case No. 981 pending in the Dallas County Probate Court. They specified case No. 981, they identified the case No. 981 by reference to parties named in that case, and they were mailed to Pordyce in Dallas County. The record also discloses that copies of papers were sent to appellee’s attorney of record in case No. 981. Such being the facts and circumstances, to deny appellants their day in court would be an injustice and not in keeping with our liberalized form of pleadings as indicated by Ark. Stats. § 27-1160 and § 27-131. Among other things the former section provides:
“The court may, at any time, in furtherance of justice . . . amend any pleadings or proceedings ... by correcting a mistake in the name of a party or a mistake in any other respect. . . . The court must, in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party. ...”
The latter section reads as follows:
‘ ‘ The rule of common law that statutes in derogation thereof are to he strictly construed shall not be applied to the Code. The provisions of the Code, and all proceedings under it, shall be liberally construed, with a view to promote its object and to assist the parties in obtaining justice.”
The general rule as to liberality in pleadings is well stated in 71 C. J. S. Pleading § 50, “Clerical Errors; Mistakes in Writing or Spelling”:
“G-enerally mere clerical or typographical errors which could not have misled the opposite party will not vitiate a pleading. Such errors are corrected by the context of the pleading or are self-correcting. Thus mere clerical mistakes, such as the use of one word or one name for another, where there is and can be no doubt as to what word the pleader intended to use ... will not render a pleading bad. ...”
We again point out that all the facts' and circumstances point unerringly to the intention of appellants to file their pleadings in case No. 981 pending in Dallas County Probate Court pertaining to the estate of Prances Shelton.
We conclude therefore that the petition and the claim should be considered as properly filed in case No. 981 prior to May 19, 1961.
In view of what we have said above, appellants’ petition was filed within the time prescribed in Ark. Stats. § 62-2114 b. (2) that is, “within six months after the date of the first publication of the notice of the admission of the will to probate.5 ’
It is our conclusion that the claim was also properly filed. Aide. Stats. § 62-2601 a. provides, in pertinent part, that
“ ... all claims against a decedent’s estate . . . shall be forever barred as against the estate, the personal representative, the heirs and devisees of the decedent, unless verified and presented to the personal representative or filed with the court within six months after the date of the first publication of notice to creditors.”
As previously pointed out, appellants’ claim was filed with the court within the specified period of six months.
It is the contention of appellee, however, that the trial court was justified in striking the claim because no proper notice of the filing of said claim was given as provided in Ark. Stats. § 62-2012 c. As appellee interprets this sub-section, it required appellants (in this case) to prepare the notice of filing and deliver it to the clerk ready for posting whereupon the clerk (as provided in Ark. Stats. § 62-2604 b.) “shall, by registered mail, notify the personal representative of the filing of the claim. ’ ’
We find it unnecessary in this case to pass upon the merits of the above contention. In our opinion there was a substantial compliance with the statute by giving notice to appellee’s attorney pursuant to the provisions of Ark. Stats. § 62-2012 e., which reads:
“SERVICE ON ATTORNEY. If there be an attorney of record for a party in a proceeding or matter pending in the court, all notices required to be seiwed on the party in such proceeding or matter shall be served on the attorney and such service shall be in lieu of service upon the party for whom the attorney appears.”
It is admitted in this case that appellee’s attorney received a copy of appellants’ claim before May 19,1961.
It is also argued here by appellee that the trial court was justified in dismissing the claim because appellants did not offer to pay the filing fees. This argument cannot be sustained in view of sub-section h. of said Section 62-2012 which reads:
“COSTS OF NOTICE. All expense incurred in giving notice under the provisions of this Code shall be taxed as costs in the proceeding.”
The judgment of the probate court is therefore reversed, and the cause is remanded, for further proceedings consistent with this opinion.
Reversed and remanded. | [
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Carleton Harris, Chief Justice.
This is a divorce action. Appellee, Charles W. Bryant, a conductor on the Missouri Pacific Railroad, owns his home, and resides in Little Rock. Appellant, Rachel Bryant, owns her home in Hot Springs, and was living there on the date of the marriage (November 4,1960). The parties lived together in the home of appellant until March 6, 1961. On March 8, 1961, Mrs. Bryant instituted suit for divorce against appellee in the G-arland Chancery Court. On April 12, the parties agreed to a temporary support order which provided that appellee should pay the sum of $100.00 per month support, court costs, and a $100.00 fee to appellant’s attorney. This order was complied with until September 6, 1961, at which time, according to the evidence, the case was to be heard finally; however, Mrs. Bryant took a nonsuit, and the court dismissed her complaint without prejudice. On March 7, 1962, Mr. Bryant instituted the present action for divorce in the Pulaski County Chancery Court, alleging that Mrs. Bryant had willfully deserted him for the period of one year without reasonable cause. Appellant filed an answer and cross-complaint wherein she denied appellee’s allegation, and sought a divorce on grounds of desertion and general indignities. She further prayed that she be given her statutory rights in all properties owned by Bryant, for an award of permanent alimony, and a reasonable sum for attorney’s fee and suit money.
On hearing, the court granted Mr. Bryant an absolute divorce, dismissed the cross-complaint of Mrs. Bryant, directed appellee to pay to appellant the sum of $100.00 per month as alimony and maintenance for a period of nine months, and awarded Mrs. Bryant’s attorney a fee of $100.00. Prom the decree so entered, appellant brings this appeal. It is here contended that the court erred in granting Mr. Bryant a divorce, rather than granting the divorce to Mrs. Bryant and awarding her property rights as provided by statute.
The contentions of each of the parties are as follows:
Mr. Bryant, 58 years of age, whose first wife had died, testified he and appellant had agreed, that upon their marriage, they would temporarily live in her home in Hot Springs until she could make arrangements to sell the property, at which time she would move to Little Bock with appellee. Mr. Bryant’s job headquarters with Missouri Pacific is Little Bock, as he stated, “Union Station in Little Bock.” It was, of course, necessary, in order to live with his wife, that he drive back and forth from Little Bock to Hot Springs. The witness stated that after a month, he told appellant that it was time for them to move to Little Bock; that he was getting tired of driving back and forth. He testified that he constantly asked her about selling the property, and she replied, that she wanted to sell her home and move; however, she took no steps to do so. Mrs. Bryant finally, around the middle of February, listed the property with a real estate dealer. Mr. Bryant stated that on two or three occasions, prospective purchasers came by to look at the property, but upon asking the sale price, received the reply from his wife that “she had not decided.” He said that he made up his mind to move back to Little Rock on March 6, and so informed his wife. She inquired, “was I coming back payday and I said yes. ‘I will be back payday and I want you to make up your mind by then, what you are going to do.’ ” Payday, as reflected by the evidence, was on March 14. Appellee stated that he never did go back for the reason that when he returned from his railroad trip “a deputy sheriff met me and subpoenaed me that I had been sued for divorce.” That suit was instituted by Mrs. Bryant on March 8.
Appellant testified that she did not want to get married until her property was sold, but that appellee said that he would give her all the time she needed. She stated that, inasmuch as all of her furnishings would not be needed in the Little Rock home, she planned to give part to her daughter and son, but that her daughter, who lived in Denver, had a nine-months-old baby, was also six months pregnant, and was not able to make the trip to Hot Springs at the time. She said that her son did get a dining room suite. Mrs. Bryant testified that appellee had told her before the marriage that he “would not gripe about driving back and forth,” and she stated that he did not make any complaint after the marriage about the inconvenience of the systematic or regular journeys from Little Rock to Hot Springs.
According to appellant, on March 6 at her home in Hot Springs, Mr. Bryant “told me he could not live with me any longer for thinking about his deceased wife, and he called her Nora.” She testified that he then packed and left, stating, “I will send you money on the 15th.” She mentioned two other complaints. On one occasion Mr. Bryant had called from Little Rock and informed her that he had to stay overnight in that city to see about renting an apartment, but he did not return to Hot Springs until the next night; upon being asked as to what he had been doing during that period, he answered, “It’s not any of your darn business and I don’t want to be asked questions or fussed at.” She also testified that the following week he did not come in until 2:00 o’clock in the morning, and, when questioned as to his activities, replied that he had been out “playing.”
Mrs. Callie Jones, a close friend of Mrs. Bryant’s, testified that she never heard Mr. Bryant make any complaints about his wife, or the fact that appellant had not sold her property. She also testified that she was in the home a few days before March 6 (when appellee left appellant’s home), and heard Mrs. Bryant state that she was ready to go to Little Rock, but Mr. Bryant refused the offer.
We think the chancellor was correct in denying a divorce to appellant. In the first place, her testimony relative to the purported statement of appellee as to his reason for leaving, is entirely without corroboration; nor is there corroboration of her testimony in regard to the two occasions when appellee did not return to the home at the proper time. Of course, even if the occurrences had been corroborated, it could hardly be said that these three isolated instances of alleged misconduct constituted such indignities as to entitle appellant to a divorce. She did not testify that her husband constantly talked about his deceased wife, but only that he mentioned it on the occasion of his leaving.
Appellee’s contention of desertion would likewise be uncorroborated except for one very pertinent fact. That fact is undisputed and admitted; two days after Mr. Bryant left the home in Hot Springs, appellant instituted suit for divorce. It seems strange, if Mrs. Bryant really intended to move to Little Rock with her husband, that she would have filed suit almost immediately, particularly inasmuch as the recited evidence shows that the difficulties between the parties were of a minor nature. It would certainly appear that if appellant had a genuine desire to live with appellee, she would not have instituted the suit so quickly.
Nor does she cite compelling reasons for failure to accompany her husband to his home. After all, the sale of the property could have been adequately handled by a real estate dealer while Mrs. Bryant was in Little Rock with her husband; upon being advised that a sale was ready for consummation, or that her daughter was ready to make the trip from Denver, appellant could have returned to her home to complete details. It is, of course, noticeable that the property was not even listed for sale until more than three months after the marriage.
The transcript contains a copy of the order entered by the Garland Chancery Court on September 6. That order reads as follows:
“On this day comes the plaintiff, by her Solicitor, Richard W. Hobbs, Esq., and moves the Court to dismiss this cause of action without prejudice;
“And the Court being well and sufficiently advised in this matter doth order, adjudge and decree that this cause of action be, and same is hereby dismissed without prejudice; and the restraining order issued on March 8th, 1961, be, and the same is hereby vacated. ”
While the record does not contain the original order, and the italicized portion could possibly have reference to restraining appellee from disposing of property, or withdrawing funds from a bank, etc., it more likely appears (since specific property or money is not mentioned in the testimony) that the purpose of the restraining order was to prevent Mr. Bryant from going about appellant. Under such circumstances, he could not, of course, have returned to the home without risk of a contempt citation. Be that as it may, we think that Mrs. Bryant could not have more forcefully demonstrated her intention to remain in her own home in Hot Springs (instead of going to Little Bock with appellee), than by instituting the suit for divorce within two days after Mr. Bryant left the house.
In Dobson v. Dobson (not in Arkansas Reports) 89 S. W. (2d) 932, this court stated,
“It is true, of course, that the husband has the right to establish a home in such place as his business necessities may require and that the wife, if she willfully refuses to make her home with him at such place, is guilty of desertion.”
See also Bateman v. Bateman, (Ill.) 85 N. E. 2d 196. Certainly, “business necessities” dictated that Mr. Bryant maintain his residence in Little Rock, and we are unable to say that the Chancellor’s finding that Mrs. Bryant deserted her husband is against the preponderance of the evidence.
It likewise follows that the .court’s action in dismissing the cross-complaint was proper.
The decree is accordingly affirmed.
Appellant asks for a reasonable attorney’s fee as compensation for services rendered in taking this appeal, together with an amount sufficient to cover costs. In accordance with the holding- in numerous cases, though the wife has not prevailed in this litigation, the request is granted. See Gardner v. Gardner, 225 Ark. 828, 286 S. W. 2d 23. We think, under the circumstances, that an additional fee for appellant’s attorney should be allowed in the amount of $100.00, together with her costs.
It is so ordered.
Mr. Justice Holt not participating.
The complaint does not appear in the record, and accordingly the grounds for divorce are not shown.
According to a stipulation entered into between the parties, appellant listed the property with J. N. Leeson of Hot Springs on February 15,1961, for the sale price of $20,000.00. Mrs. Bryant also testified that she listed the property for sale about a week earlier with another real estate dealer.
Mrs. Bryant’s home contained 7 rooms, while the apartment in Little Rock, owned and occupied by Mr. Bryant, only contained 4 rooms.
Mrs. Bryant had been married previously, but was divorced from that husband in 1945.
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George Rose Smith, J.
This is a boundary line dispute. The controlling question is whether adjoining landowners may, even in the absence of any dispute or uncertainty, change the location of the boundary by an oral agreement that is carried into effect by the maintenance of a fence along the agreed line for more than seven years.
There is no real dispute about the parol agreement. What is now the appellees’ property was once owned by Marguerite Miles, and what is now the appellants ’ property was owned by R. E. and R. M. Ming. In 1945 Mrs. Miles and her husband decided to erect a fence between the two tracts, to contain their three cows. Wanting one end of the fence to be close to their house they meant to start the fence upon their own land, to run it at an angle out to the common boundary, and thence to continue along that line. Instead of employing a surveyor Miles and Ming undertook to step off the line.
Digging the postholes along the boundary proved to be hard work. Ming, who was helping with the project, generously suggested that the attempt to follow the true line be abandoned and that the fence be attached instead to a number of trees upon the Ming property. Mrs. Miles testified that the parties agreed that the fence line would be the permanent boundary, even though the result was to give Mrs. Miles more than the five acres called for by her deed. She quoted Ming as having said, “I won’t miss it, because I have over 100 acres.” Mrs. Miles’s testimony is corroborated by Mrs. Ming, who was the only other one of the contracting parties to be called as a witness.
Mrs. Miles continued in possession of her tract until she sold it in 1958. During those thirteen years the fence remained in place; its location was never questioned either by her or by the various owners who succeeded to the Mings’ title. The present controversy arose shortly before the appellants brought this suit, in 1961, to quiet their title to the disputed strip. The appellees pleaded title by adverse possession and relied upon the facts as we have narrated them. The chancellor upheld the oral agreement and accordingly confirmed the title in the appellees.
We have often held that when the location of the true line is in doubt or in dispute the parties may, by parol agreement, fix a line that will be binding, even though their possession under the agreement does not continue for the full statutory period of seven years. Sherrin v. Coffman, 143 Ark. 8, 219 S. W. 348; Robinson v. Gaylord, 182 Ark. 849, 33 S. W. 2d 710. The theory of these cases is that the parol agreement does not operate upon the title itself but merely fixes the line to which each party holds under his deed. Hence there is no violation of the statute of frauds. In the case at bar, how ever, the appellants contend that there was a violation of the statute, owing to the fact that there was no uncertainty or disagreement about the true line.
The answer to this argument is that even though the parol agreement may in its inception have been contrary to the statute of frauds, for want of any doubt or dispute, the title nevertheless vested by adverse possession after the agreement had been in foree for the full statutory period of seven years. Black v. Napier, 212 Ky. 315, 278 S. W. 834; Smith v. Gerrish, 256 Mass. 183, 152 N. E. 318. Mrs. Miles testified that after the construction of the fence she and her husband thought that they owned the land up to the fence, “because Mr. Ming gave it to us.” It is clear enough that Mrs. Miles and her husband occupied the land for more than seven years in the belief that they owned it. The requirement that adverse possession be hostile does not mean, of course, that the possessor must entertain a conscious feeling of ill-will or enmity toward his neighbor.
Our cases involving the establishment of a boundary line by long acquiescence confirm our present conclusion. For example, in Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18, there had been no prior dispute about the boundary, but we held that the recognition of a fence line for 34 years “shows a quietude and acquiescence for so many years that the law will presume an agreement concerning’ the boundary.” In the case at hand there is no need to resort to such a presumption, for the testimony affirmatively shows that the agreement was actually made.
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Jim Johnson, Associate Justice.
This appeal involves two wills, a suit to enforce an oral contract to devise real property, and a claim against an estate for money loaned decedent, all of which have been consolidated for briefing and argument.
On June 12, 1962, the Sebastian Probate Court, case no. 9913, admitted to probate a will of Laura D. Barton bearing the typed date of April 23, 1962. Letters testamentary were issued to appellant Viola Barton, a daughter of the decedent. Thereafter on June 26, 1962, case no. 9921, Elliot Barton, a son of decedent, petitioned for probate of a will of decedent dated April 24, 1962. On July 5, 1962, Barton filed a petition in the first probate case to revoke the letters testamentary granted to appellant on June 12th, on the ground that the will in that case was not the latest will of the decedent.
The two cases were consolidated for trial. Hearing was had August 10, 1962, following which the trial court revoked the letters granted to appellant and the probate of the will dated April 23, 1962, admitted to probate the will dated April 24, 1962, and ordered that letters testamentary be issued to appellee, the Merchants National Bank of Port Smith as executor of the will of April 24th.
At the hearing on August 10, 1962, appellant presented evidence for the purpose of showing that the will dated April 23rd was actually executed on the 26th or 27th of April and therefore the later will, and that this will was executed by decedent in performance of an oral contract made by decedent with appellant, under which decedent borrowed two sums totaling $3,800.00 from appellant and promised to will real property to appellant if the loans were not repaid before decedent’s death.
On August 28, 1962, appellant filed her claim, in the second probate case, for $3,800.00, alleging that she had made two loans to decedent totaling that sum and that no part of it had been paid.
On September 6, 1962, appellant filed a petition in Sebastian Chancery Court seeking specific performance of the alleged oral contract to devise real property.
On January 4, 1963, all parties stipulated that the testimony offered by the opposing parties at the hearing on August 10, 1962, in the Probate Court would be all of the testimony to be considered by the Chancery Court in the specific performance case, and by the Probate Court in the second probate case concerning appellant’s claim. On that same date, January 4th, the trial court entered its decree denying the relief sought in Chancery and dismissing the complaint, and in the Probate case disallowing the claim. Prom the decrees then entered, appellant has appealed to this court.
Appellant’s first point urged for reversal is that the will having the typed date, April 23,1962, was deceased’s last valid will.
The trial court found that the April 24th will was the last valid will of the decedent. Appellant in no way questions the execution and attestation of the April 24th will, or controverts the testimony as to the date of execution of that will. The April 23rd will was first admitted to probate on proof of will forms approved by this court which affidavit states in part, “On the execution date of the instrument” the testatrix signed the instrument and the witnesses signed as attesting witnesses “the attached written instrument, dated 23rd day of April, 1962.” Until the April 24th will was offered for probate as a later will, there would be no reason for appellant to show that it was executed other than on the date typed into the instrument. However, once the April 24th will was offered for probate, the burden was then on appellant to show that the April 23rd will was in fact executed other than on the 23rd. We have long required clear, cogent and convincing evidence to vary the terms of any written instrument. Welch v. Welch, 132 Ark. 227, 200 S. W. 139; Green v. Bush, 203 Ark. 883, 159 S. W. 2d 458. Reviewing all the evidence (much of which is patently inconsistent) as we do on trial de novo, and considering only the competent and credible evidence, Barksdale v. Carr, 235 Ark. 578, 361 S. W. 2d 550; Nolen et al v. Harden et al, 43 Ark. 307, we do not find such a preponderance of the evidence as to be clear, cogent and convincing that the April 23rd will was executed on any other date than April 23rd.
Appellant’s next contention for reversal is that the oral contract to devise the property to appellant should be enforced.
In Offord v. Agnew, 214 Ark. 822, 218 S. W. 2d 370, onr general rule on oral contracts to devise is quoted as follows:
“It is not sufficient that he establish it by a preponderance of the testimony, but that he must go further and establish the contract by evidence so clear, satisfactory and convincing as to be substantially beyond a reasonable doubt.”
Reviewing the testimony and reflecting on the conduct of the members of this family, such as the fact that appellant was the one daughter of decedent’s three daughters to whom decedent turned when her husband died fifteen years earlier and whom decedent chose to make her home with or near, contrasted with the facts that her only son had traveled to see decedent just twice in the twelve years prior to her death, such an oral contract to devise property is not inconceivable. However, in addition to the apparent financial security of decedent it was shown that subsequent to the making of the alleged loans which were contended to be the consideration for the oral contract to devise the property here in question, appellant purchased from the deceased a small sixteeen or eighteen foot corner off said property and paid the deceased a cash consideration therefor. The payment of money to one’s alleged debtor is, to say the least, not consonant with the existence of a debt. This testimony along with the testimony as a whole relative to an oral contract to devise property does not approach that required by the Offord case, supra, that is, the evidence is not “so clear, satisfactory and convincing as to be substantially beyond a reasonable doubt.” Hailing this, the Chancellor did not err in refusing to enforce an oral contract.
Appellant’s last argument for reversal is that appellant’s claim against the estate is not barred by the statute of limitations. In order to consider this point in its proper perspective it must be borne in mind that appellant has failed to establish an oral contract to devise property. This being true, then the simple question here presented is whether appellant’s claim against the estate is barred by the statute of limitations. For this determination we will treat the testimony as uncontradicted that appellant loaned decedent $2,000.00 in 1947 or 1948 to buy a home in Ft. Smith after her husband’s death, and that again in 1949 appellant loaned her mother $1,800.00 to buy a larger home. The statute of limitations applicable to such a debt is as follows:
“37-206. The following actions shall be commenced . . . within three (3) years after the cause of action shall accrue: First, all actions founded upon any contract, obligation, or liability . . . [and not in writing] . . .”
Appellee pleaded the statute of limitations in bar to appellant’s claim, and the burden is therefore on appellant to show that the running of the statute had been tolled or revived by payment or otherwise. Johnson v. Murphy, 204 Ark. 980, 166 S. W. 2d 9; Blake v. Commercial Factors Corp., Inc., 216 Ark. 664, 226 S. W. 2d 986. There is a total failure of proof on this point.
Finding no error on trial de novo, we have no choice but to affirm the decrees appealed from.
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Carleton Harris, Chief Justice.
This litigation involves a conflict of laws, the question being whether a certain contract (hereinafter discussed) is governed by the law of Arkansas or by the law of Iowa.
According to a stipulation entered into between the parties, Carl J. Cardamon, an agent of Builders ’ Supply Company of Des Moines, Iowa, on May 11, 1960, contacted the appellants, Gordon Huchingson and wife, Amanda E. Huchingson, at their residence near Benton, Arkansas, and proposed to install aluminum siding on the Huchingson home. A contract was prepared authorizing Builders’ Supply to do this work for the total sum of $1,600.00, $400.00 to be paid upon the completion of the work, and the balance of $1,200 to be paid in 36 monthly installments of $41.85 each. The contract provided “carrying charges,” in the amount of $306.60. Appellants and Cardamon executed the contract in Saline County, and Hilary DiPaglia, a partner of Builders’ Supply Company, subsequently “approved and accepted” the contract in Des Moines, Iowa. At the time they executed the contract in Saline County, appellants also executed their note in the amount of $1,506.60 (principal and “carrying charges”), together with interest at the rate of 7% per annum after maturity, said note being payable at Des Moines. Within a day or two, work was commenced on the house, and shortly completed. Builders’ Supply Company endorsed the note without recourse to Republic Finance Co., Inc., of Des Moines, and when payment was refused by appellants on the ground of usury, suit was instituted in the Saline Circuit Court. After the filing of an answer, in which the defense of usury was pleaded, the case was submitted for trial to the Circuit Court on the pleadings, exhibits, and a stipulation entered into between the parties which included the admitted fact that the contract and note are usurious under both Iowa and Arkansas law. In its “finding of fact” the court stated:
“This Court believes that the law requires that if there can be any basis for sustaining a note that such note be sustained. In this situation if the note under consideration be an Arkansas note then it is usurious and null and void. The situation exists though in which if the note be construed under the law of Iowa then, relying upon the representations of the attorney for the plaintiff in his brief, if the note be considered to have been finally executed in Iowa the provisions for payment of interest alone are null'and void and the note should be paid in its principal sum.”
It then found “that the final execution of the note was in the State of Iowa and that the plaintiff is entitled to recover the sum of $1,200.00, and that the provisions for interest on such note shall be cancelled and shall be held for naught.”
From the judgment so entered, appellants bring this appeal.
Paragraph Seven of the stipulation concisely sets forth the question we are called upon to determine. That paragraph reads as follows:
“That the sole question to he determined by this Court in this action is whether the contract and note constitute an Arkansas contract or an Iowa contract, as it is conceded by the plaintiff that the contract and note are usurious under both Arkansas and Iowa law, and if found to be an Arkansas contract, judgment should be for the defendants, but if the Court construes the note and contract to be Iowa contracts then judgment should be for the plaintiff with the provision that the accrued interest on the note shall be paid into the Iowa School Fund. ’ ’
We have reached the conclusion that the judgment must be reversed. While in Cooper v. Cherokee Village Development Company, 236 Ark. 37, 364 S. W. 2d 158, we stated, “This court has consistently inclined toward the law of the state that will make the contract valid, rather than void, ’ ’ this statement is only applicable where ostensibly the law of either state could apply, or where there is doubt as to which properly does apply. Under the facts in the instant case, we have no hesitancy in declaring that the contract before us was an Arkansas contract, and is controlled by the law of this state.
In the first place, the contract was entered into, and the note executed by appellants, and Cardamon, the agent of the company, in Benton, Arkansas, and the work was to be performed in Arkansas. It is true that the instrument was subsequently “approved and accepted” by one of the partners of the Builders’ Supply Company in Des Moines, but it does not appear that this approval Avas necessary to effectuate the contract. This is made clear by the provisions of Paragraph One of the stipulation, which sets out that “a day or two” after the contract was executed by the Huchingsons and Cardamon at Benton, “work was immediately commenced and carried on to completion.” From the record, the company agent had apparent authority to execute the contract, and there is nothing in the contract itself which provides that same must be approved in the home office before becoming effective. In fact, one of the provisions states: “This order is not cancellable and it is agreed that if the undersigned designated as ‘Owner’ does not perform same on their part that Builders’ Supply Co., will have incurred damages as a result thereof and the undersigned ‘Owner’ hereby agrees that liquidated or ascertained damages in the sum of thirty (30%) per cent of the contract price shall "be due and payable to said Builders’ Supply Co.”
We daresay that if appellants had, within a few hours after signing this contract, changed their minds about entering into the agreement, the company would have relied upon, and sought enforcement, of the quoted provision. It appears to us, both from the language of the contract, and the action of the company in commencing work almost immediately following the execution of same at Benton, that the agreement was complete when executed in Saline County, Arkansas, on May 11, 1960, and Iowa law has no substantial connection with the transaction.
The only circumstance that favors appellee is the fact that the monthly payments shall be made in Des Moines. Of course, in reaching our conclusions, the contract and note must be considered together. If the only instrument involved were a promissory note, payable in Iowa, appellee’s position might well be maintained. But when the note is only a part of the overall agreement, we consider the situation vastly different. To hold that the mere fact that the note was payable in Iowa made the agreement subject to Iowa law, when all other essential elements of the contract were entered into, and were to be performed in Arkansas, would be to henceforth furnish, a loop-hole whereby an unscrupulous individual, or company, from a state which permitted liberal interest rates, could enter into contracts in this state, and simply by making the note payable in his, or its, own state, safely evade the usury laws of this jurisdiction.
Arkansas has a strong public policy on this subject, as indicated by the fact that the penalty against a seller or lender exacting usury is indeed heavy, and this court, particularly for the last 10 years, has been zealous in guarding against any attempt to evade our constitutional provisions relative to usury.
For the reasons herein set forth, we are of the view that the trial court erred in holding that the contract was to be governed by Iowa law, and the judgment, therefore, should be, and is, reversed.
It is so ordered.
While not shown by the record, appellants evidently paid the $400.00 upon completion of the work.
Under the law in Iowa, the effect of usury on the collection of a note is that the principal sum only can be collected by the holder of the note, and the interest is paid into the Iowa school fund. However, in Crebbin v. Deloney, 70 Ark. 493, 69 S. W. 312, a similar provision of Missouri law was involved, but we affirmed as to the principal only, stating:
“But the decree as to the penalty,—that is, - the forfeiture of the interest to the school fund of Howard county,—is reversed and set aside. We have no law authorizing such a decree, and, while that might be a proper decree, under the Missouri law, in the state of Missouri, yet the law of Missouri imposing such penalty has no extraterritorial force, and will not be enforced here upon the principle of comity.”
The debt is cancelled.
See Heidelberg Southern Sales Co. v. Tudor, 229 Ark. 500, 316 S. W. 2d 716; Winston v. Personal Finance Company of Pine Bluff, Inc., 220 Ark. 580, 249 S. W. 2d 315; Commercial Credit Corp. v. Kitchens, 231 Ark. 104, 328 S. W. 2d 355; Holland v. Doan, 228 Ark. 340, 307 S. W. 2d 538; Brooks v. Burgess, 228 Ark. 150, 306 S. W. 2d 104; Strickler v. State Auto Finance Co., 220 Ark. 565, 249 S. W. 2d 307; Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973, and cases cited therein. | [
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Paul Ward, Associate Justice.
Roy Thompson, a student in the Smackover High School, was injured when a scaffold, on which he was standing, collapsed. At the time of the injury Roy, along with several other boys, was doing carpentry work as a part of the regular lesson assignment. Also, at the time of the injury the scaffold was being used by appellee (Clifton C. Helms) and his employees while engaged in making repairs on the Smack-over High School auditorium.
In the complaint, filed by Roy’s father as Next Friend, there appear (in substance) the following allegations : (a) In the summer of 1959 appellee entered into a contract with the school district to repair the auditorium, and that (as a part of the contract) appellee was to build the scaffold in question which was to be used by him in performing his contract; (b) On April 12, 1960 Roy was injured as previously stated; (c) The scaffold collapsed because appellee, in constructing the scaffold, was negligent in the following particulars, to-wit:—he used faulty lumber, the workmanship was poor, and he failed to inspect the scaffold periodically. To the above complaint appellee entered a general denial.
At the close of appellant’s testimony the trial court sustained appellee’s motion for an instructed verdict. In this we think the trial court was correct because we find no substantial evidence in the record from which the jury could have found in favor of appellant. This being true the trial court must be affirmed. See: Smith v. McEachin, 186 Ark. 1132, 57 S. W. 2d 1043; Collett v. Loews, 203 Ark. 756, 158 S. W. 2d 658; and Stobaugh, Admx. v. Hubbard, Admr., 234 Ark. 917, 355 S. W. 2d 283.
Before he would be entitled to recover from appellee it was incumbent on appellant to show negligence on the part of appellee. We agree with appellant’s argument that it will suffice to show appellee was negligent either (a) as a contractor or (b) as an individual. We think the evidence wholly fails in both respects.
Appellant (Boy) and one of his classmates testified, but there is not, and could not be, any contention that either of them testified to any negligence on the part of appellee. The only other testimony introduced was given by appellee who was called by appellant to testify.
(a) The scaffold in question was constructed (apparently) the latter part of 1959 or the early part of 1960, before appellant was injured on April 12, 1960. Appellee had a contract with the School District to make certain specified repairs on the auditorium for $8,200. There is no testimony that the construction of the scaffold was a part of the contract, but there was definite testimony to the contrary—that it was constructed by the school district which merely permitted appellee to use it in performing his contract work. It conclusively appears from the record that Boy and his classmates were at all times on the scaffold at the direction of the school authorities in pursuance of assigned class work. There is no evidence or contention that the boys were working for appellee or that they were under his control in any manner.
(b) It is admitted by appellee that he, along with several other people (including school officials and employees), helped construct the scaffold. The uncontradicted and definite evidence is that he (appellee) did not help in the capacity of a contractor and that he had no control over the other workers. The evidence shows one leg of the scaffold contained a large knot which probably caused it to break and the scaffold to collapse. There is however no evidence that appellee knew of or had anything to do with procuring or installing that particular piece of timber.
In the cases previously cited we pointed out that, in testing the substantiality of the evidence in a situation like this, all reasonable inferences deducible from the evidence should be viewed in the light most favorable to appellant. We have so viewed the evidence in this case and still find that the action of the trial court must be affirmed.
Affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This appeal poses the question of the constitutionality of four Acts adopted at the Second Extraordinary Session of the 1958 General Assembly of Arkansas. The Acts adopted at that session, and here involved, are: Act No. 12, which empowered the county judge of any county to require certain organizations engaged in specified activities connected with the schools to furnish stated and required information; Act No. 13, which empowered the Attorney General of Arkansas to obtain access to the files, records, correspondence, etc. of certain organizations; Act No. 14, which added additional definitions to the crime of barratry and prescribed penalties; and Act No. 16, which added additional definitions to the crime of maintenance and prescribed penalties. The full text of each of these Acts may be found in Pages 2023 et seq. of Volume 2 of the printed Acts of the 1959 General Assembly.
The National Association for the Advancement of Colored People, joined with some of its officers, filed this suit in the Pulaski Chancery Court, seeking a declaratory judgment to the effect that each of the four Acts was unconstitutional. The defendants in this suit were the Attorney General of Arkansas, the Prosecuting Attorney of the District of which Pulaski County is a part, and the County Judge of Pulaski County. Upon issues joined, the cause was heard ore terms, and the Chancery decree was that Acts 12, 14 and 16 were unconstitutional, and that Act No. 13 was valid. The correctness of that decree is challenged by both direct and cross appeal.
I. A Justiciable Issue. At the outset, the Attorney General insists that this is not a proper case for a declaratory judgment because there is no effort being made by anyone to proceed against the plaintiffs (appellees) under any of these Acts. This insistence fails to meet the issue. The NAACP first filed suit in the United States District Court for the Western Division of the Eastern District of Arkansas and challenged the four Acts here involved. A three-Judge Federal Court held, on October 8,1959, that the NAACP should first proceed in the Arkansas Courts. The NAACP and the other plaintiffs then filed this present suit for declaratory judgment in the Pulaski Chancery Court, and we hold— as did the Chancellor—that a justiciable controversy is presented.
II. Acts Nos. 12, 14 and 16. The Chancery Court held each of these Acts to be unconstitutional; and we quote the Chancellor’s opinion on each of these Acts:
“ACT NO. 12.
“Act No. 12 has for its stated purpose the maintaining of law, peace and order in the administration of public schools. Briefly it provides that whenever any organization (which includes civic, fraternal, political, mutual benefit, medical, trade or other kind) engaged in ‘activities designed to hinder, harass and interfere with powers and duties of the State of Arkansas to control and operate its public schools’ the County Judge may ‘request’ that the organization file with the County Clerk certain information, under oath, revealing the name, members, officers and purposes of the organization. Assumedly an objectionable feature of the Act is the requirement that a list of the members must be made public, thus depriving the members of their asserted right to privacy. . . .
“Regardless of how laudable its purpose, Act No. 12 is too broad in its scope to meet constitutional requirements. Under its plain language, any organization which questions the State’s ‘power or duty’ in the opera tion of the public schools must comply with its provisions and subject its members to publication of their names. It is fundamental that every citizen has the legal and inherent right to access to the Courts to question in a lawful and peaceable manner any action of the State in the exercise of any of its powers and duties. This applies to the action of the State, not only with regards to the public schools, but to any other activity in which it may exercise its powers and duties. The effect of Act No. 12 is to subject any organization whose members desire to seek a ruling of the Court on the legality or constitutionality of the action of the State towards the public schools or with relation to the public schools to publicity which to some constitutes harassment. Any act of the Legislature which has as its purpose or effect the denial of the right of the citizen to free and untrammeled access to the Courts or which seeks by intimidation, vexation or otherwise, to discourage the exercise of that right is plainly unconstitutional. No obstacle can be legally placed between the citizen and his Court. Article 2, Section 13 of the Arkansas Constitution provides :
‘Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws. ’
“By the above language the framers of our Constitution have stated specifically that justice may be obtained without purchase and without vexation, freely and promptly. This right of the citizen cannot be infringed by legislative act. St. Louis Iron Mtn. Railway v. Williams, 49 Ark. 492; Riggs Co. v. Martin, 5 Ark. 506. ‘ ‘ There is yet another ground upon which this Act must fail. Although under Section 2 the term ‘organization’ is given a wide definition, under the provisions of Section 3 of the Act only those organizations are required to comply with the terms of that Act which are subject to the ‘request’ of the County Judge. Thus, the dis cretionary act of the County Judge is necessary to bring into play the provisions of the Act against any organization. The applications of the law must not depend upon the uncontrolled discretion of any public official or else there will be an unconstitutional delegation of power prohibited by Article 4, Section 1 of the Arkansas Constitution. The Arkansas Supreme Court has construed that constitutional provision to prohibit the Legislature from delegating to any public official the power to select those against whom state laws shall apply. To avoid the proscription against unconstitutional discrimination the law must apply to all persons within a named class equally and without favor or exception. It must be so complete in all of its terms and provisions when it leaves the legislative branch of the government, that nothing is left to the judgment of any appointee or delegate of the Legislature. State v. Davis, 178 Ark. 153; 11 Am. Jur. Sec. 215, p. 924.
“For the above reasons, it is the opinion of this Court that Act No. 12 is unconstitutional and invalid ??
“ACTS NO. 14 AND 16
“Acts 14 and 16 will be considered together because they deal with subjects so inter-related that it is almost impossible to consider one without the other.
“The subject of these two Acts are ‘Champerty’, ‘Maintenance’ and ‘Barratry’.
“Act No. 14 purports to define the crime of barratry and includes nine separate sections of definitions.
“Sub-section B of Section 1 is so vague, indefinite, uncertain, yet inclusive, that it would make difficult or impossible life in a society in relation to access to the judiciary and particularly is this true under a constitu tional form of government. Acts which may ‘tend to breach the peace’ are so numerous as to beg description. Our form of government guarantees to all of us the right of free and uninhibited access to the judiciary, and this certainly implies that we must not be so fearful of every day and common acts that this access to the judiciary is actually fettered because of fear. This definition tends to impair freedom of thought and action with relationship of access to the judiciary.
“The proposed definition in Sub-section C of Section 1 makes the single act of proposing that a fellow man litigate, regardless of intention or the merits of the proposed litigation, or regardless of the good intentions of the proposer, a felonious act in this society punishable by heavy fine and imprisonment. It is well established in our law today in this State that a labor union cannot sue or be sued in its own name, but must do so through the individuals or representations of the individuals within that group. It would appear to this Court that if this provision could conceivably be held valid, that this would effectively bar labor unions and other unincorporated associations from access to the judiciary; and, as previously stated, under our Constitution this cannot be done.
“Sub-section D of Section 1 is equally as invalid as are sub-sections B and C aforesaid, and for the same reasons, and in addition the Court would observe that the practice of law would be an extremely hazardous profession to pursue in face of the serious penalties imposed by the Act.
“Sub-sections F, G, H, and I of Section 1 do not ' make complete sentences or complete thoughts and for that reason define nothing.
“Act No. 16 deals with the common law crimes of maintenance and champerty, as therein greatly enlarged to include the giving, receiving, accepting of assistance or inducements to commence or prosecute any proceeding in any Court or before an administrative agency.
“Once again we call attention to the situation that unincorporated associations would find themselves inhibited, as well as many well intentioned and highly motivated people, in assisting indigent people in defending themselves against criminal charges or in prosecuting or defending civil actions. This definition goes considerably beyond, not only proprietary but constitutional limitations, and clearly violates the 14th Amendment to the Constitution of the United States and Article 2, Section 8 of the Arkansas Constitution.
“Sections 3 and 4 of Act 16 would seemingly destroy and certainly impair the power or right to make contracts between attorney and client.
“Section 5 of Act 16 provides penalties for filing-false affidavits as required in Sections 3 and 4; and among other things imposes a heavier and more severe penalty upon non-resident attorneys than it does upon resident attorneys. For this reason the Act is discriminatory and violates the equal protection clause of both the Constitution of Arkansas and the United States.
“Section 6 would require a person to appear before a grand jury and would require testimony to be given regardless of whether such testimony or evidence would tend to incriminate him. This would seem to this Court to violate the Fifth Amendment to the United States Constitution and would also clearly violate Article 2, Section 8 of the Arkansas Constitution.
“Paragraph 7 purports to exempt certain types of litigation from the provisions of Act 16; and in the opinion of this Court constitutes an unlawful classification within a class without reasonable relation and is therefore discriminatory.
“It is the opinion of this Court'that both Act No. 14 and Act No. 16 are unconstitutional and invalid.”
We have quoted the opinion of the learned Chancellor to show the care and study he gave to the issues. There is no need for us to accept or reject the reasoning of the learned Chancellor, because our Acts Nos. 12,14, and 16 were borrowed from the State of Virginia; and the Courts of that State, along with the Supreme Court of the United States, have finally destroyed the validity of these Acts. The Special Session of the General Assembly of Virginia in 1956 adopted five Chapters, from which we borrowed the language of our Acts Nos. 12, 14, and 16. In the case of National Association for the Advancement of Colored People v. Robert Y. Button, Attorney General of Virginia, 371 U.S. 415, 9 L. ed. 2d 405, 83 S. Ct. 328, Mr. Justice Brennan, in the Majority Opinion, stated that the Circuit Court of the City of Richmond held most of Chapters 31, 32, and 35 unconstitutional; and that the Supreme Court of Appeals of Virgina, in NAACP v. Harrison, 116 S. E. 2d 55, held Chapter 36 unconstitutional. So there was left only Chapter 33 on barratry and maintenance. The Supreme Court of the United States in the said Button case held the Virginia Chapter 33 to be unconstitutional; and in his concurring opinion in the Button case, Mr. Justice Douglas lists our Act as being modeled from the Virginia Act. We think the Supreme Court of the United States in the Button case has swept the foundations from under the Acts here involved; so we hold Acts Nos. 12, 14, and 16 to be unconstitutional.
III. Act No. 13. The Chancery Court held this Act No. 13 to be constitutional; but we hold that the Act is unconstitutional under the authority of the decision of the Supreme Court of the United States in Bates v. City of Little Rock, 361 U.S. 516, 4 L. ed. 2d 480, 80 S. Ct. 412. The Act No. 13 provides that if the Attorney General of Arkansas should have reason to believe that any organization was attempting to defraud the State of Arkansas of its taxes, the Attorney General might procure an ex parte order from any Chancery Court and have access to all of the files, records, correspondence, and other data of said organization.
When we consider the caption to the Act, the session at which it was adopted, and the circumstances that led to the calling of that session, we are convinced that the Supreme Court of the United States would hold that the Act was aimed at the NAACP and required a compulsory disclosure of information which was proscribed by the decision of the Supreme Court of the United States in Bates v. City of Little Rock, supra. The whole tenor of the decision in the case of NAACP v. Button leads us to the inevitable conclusion that this Act No. 13 would be promptly declared unconstitutional in line with Bates v. City of Little Rock, supra, and NAACP v. Button, supra.
It follows that all four of the Acts here involved are hereby declared' to be unconstitutional.
Holt, J., disqualified and not participating.
Johnson, J. and Boyd Tackett, Special J., dissent.
The session convened on August 26, 1958, pursuant to a Proclamation of the Governor, which called the session “To consider and, if so advised, enact laws for the following purposes: 1. To regulate the administration and financing of public school and education, and to make appropriation for such purposes. 2. To make appropriation to pay the expenses and per diem of this Extraordinary Session of the General Assembly.”
The prayer of the complaint was, inter alia, for “. . . a judgment or decree declaring Acts Nos. 12, 13, 14, and 16 of the 1958 Second Extraordinary Session of the General Assembly to be unconstitutional, in that these measures deny to plaintiffs, the classes they represent, contributors, and lawyers engaged in acting in good faith, the equal protection and due process guaranteed by the 14th Amendment to the Constitution of the United States.”
We have delayed our decision in this case because of the pendency in the Supreme Court of the United States of the case of NAACP v. Robert Y. Button, Attorney General of Virginia, which involved a barratry statute of Virginia similar to our Acts 14 and 16. The Supreme Court of the United States decided the case of National Association for the Advancement of Colored. People v. Button, Attorney General of Virginia, on January 14, 1963. See 371 U.S. 415, 9 L. ed. 2d 405, 83 S. Ct. 328.
The memorandum opinion of the three-Judge Federal Court is in the transcript before us; and the Judges on that Court were Circuit Judge John B. Sanborn, and District Judges John E. Miller and J. Smith Henley.
The Attorney General argues in this Court that any issue about Act No. 12 is moot because—says the Attorney General—-Act No. 12 “was entirely superseded by Act No. 225 of 1959.” We find no language in said Act No. 225 which expressly or impliedly repeals Act No. 12; so we consider such argument about repeal to be beside the point at issue here. | [
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