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Minor W. Millwee, Justice.
Petitioner, Dan Keenan, seeks a writ of prohibition to prevent the, Pope Circuit Court from proceeding further in a transitory action filed against him in that court by Fred W. Rogers.
By special appearance, petitioner filed a motion to quash service of process on him in the Pope County action, alleging: (1) that the summons showed on its face that it had not been served as required by law; (2) that the summons was served after the return date thereof; and (3) that the service was obtained through fraud and deceit in that it was attempted to be had before any action was ever filed in Pope County, and that an identical action filed in Tell Circuit Court, Dardanelle District, on May 14, 1951, in which petitioner was served with summons May 16, 1951, was dismissed by Plaintiff Rogers on the same date that he actually filed the Pope County action, namely, May 18, 1951.
After hearing testimony on the motion to quash, the circuit court overruled it and found: “Under the evidence heard surrounding the circumstances of the purported service of the summons in Russellville on defendant, as related by the Sheriff, the Court is of the opinion that legal and valid service of summons was had on Dan Keenan.
“Under the provisions of § 27-309, Ark. Stats., 1947, as jto return date of summons it is provided: ‘ The summons shall be made returnable to the first day that the court shall be in session after twenty days after the date of issuance thereof.’
‘ ‘ The complaint was filed on April 10,1951, and summons issued on the same date, returnable as provided by statute cited above. Circuit Court was in session on April 12, 16, 24, and 27 in Pope County, but no Court was held during May, 1951. The summons was served on May 18, 1951. The 20th day after the date of issuance of summons on April 10, 1951, would have been on April 30, 1951. The return day of summons was fixed under the law to the first day that the court would be in session after twenty days after the date of issuance of the summons. If the Circuit Court had met in session at any time in May, prior to May 18th, then the summons under such circumstances would have been served after the return day and therefore void. But such was not the case. ’ ’
Since petitioner has not favored us with an abstract of the testimony taken on the motion to quash, we must assume that the evidence sustains the court’s finding as to the validity of the service. This finding is clearly in accord with the provisions of § 27-309, supra, as interpreted by this court in J. II. Hamlen & Son v. Allen, 186 Ark. 1104, 57 S. W. 2d 1046.
Upon the record here presented, it appears that the Pope and Yell Circuit Courts had concurrent jurisdiction of the subject matter of the transitory cause of action filed against petitioner. When a court has jurisdiction over the subject matter and the question of its jurisdiction of the person turns upon some fact to be determined by the court, its decision that it has jurisdiction, if wrong, is an error which may be corrected by appeal and prohibition is not the proper remedy. Sparkman Hardwood Lbr. Co. v. Bush, 189 Ark. 391, 72 S. W. 2d 527; Arkansas Democrat v. Means, 190 Ark. 948, 82 S. W. 2d 256.
In Finley v. Moose, 74 Ark. 217, 85 S. W. 238, 109 Am. St. Rep. 74, it was held that, if the existence or nonexistence of jurisdiction depends on contested facts which the inferior tribunal is competent to inquire into and determine, a prohibition will not be granted, though the superior court may be of the opinion that the questions of fact have been wrongly determined by the court below, and that their correct determination would have ousted the jurisdiction.
Petitioner argues that Pope Circuit Court was completely ousted of jurisdiction as of the date of the service upon him in the Yell County action. Our statutes (Ark. Stats., §§ 27-1115 and 1119) provide what shall be done in cases where identical causes of action are pending between the same parties in courts of concurrent jurisdiction. In Kastor v. Elliott, 77 Ark. 148, 91 S. W. 8, Judge Battle, speaking for the court, in reference to these statutes; said: “They provide that when it appears in the complaint that there is another action pending between the same parties for the same cause, the objection may be taken advantage of by demurrer; and if it does not appear in the complaint, it may be taken by answer; and if the objection is not taken by demurrer or answer, the defendant shall be deemed to have waived the same. . . . If the demurrer be overruled, or the plea in the answer be overruled, the defendant has an adequate remedy by appeal. ‘But, in the first instance, the court in which the proceeding began has a right to pass on the question, and if it errs its errors can be corrected’ by the Supreme Court. The fact that the court may err in deciding the question does not authorize this court to interfere by writ of prohibition. State ex rel. Johnson v. Withrow, 108 Mo. 1, 18 S. W. 41.”
Since our holding in Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S. W. 2d 672, a party does not enter his appearance by appealing to this court where his objection to jurisdiction of the person is properly preserved in the trial court and his remedy by appeal is, therefore, adequate. Twin City Lines, Inc. v. Cummings, Judge, 212 Ark. 569, 206 S. W. 2d 438.
Since petitioner has an adequate remedy by appeal, the writ of prohibition is denied. | [
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Wood, J.,
(after stating the facts). First.The most painstaking examination of this record fails to discover any fraud upon the part of Gus Blass & Co., either actual or constructive. The matters pressed here for actual fraud are all consistent with honest conduct, and only comport with the efforts which we would naturally expect an honest and vigilant creditor to put forth to collect his debt. The bona fides of the Blass claim is nowhere called in question. That being true, the other matters urged as evidence of fraud do not prove it. It is insisted, for instance, that the time of night the goods were delivered to Gus Blass & Co.; the character of the instrument that evidenced the transfer; the disparity between the amount of the debt and the goods pledged for its payment; the fact that the pledge included $1,708.75, for which Blass & Co. were only indorsers; and that, after all the goods had been attached, Gus Blass & Co. “took the lead,” as counsel express it, in getting up a compromise, at 45 cents on the dollar, with tine attaching creditors, except Goodbar & Co., by the terms of which Blass & Co. were first to be paid in full, and then the mortgagees, and then, if any, balance to go to Griffing & Co. — all these things, it is urged, when taken in connection with all the circumstances, bear the earmarks of actual fraud upon the part of Blass & Co. But not so. Undoubtedly Griffing & Co. in the impending financial collapse desired to have Gus Blass & Co. fully protected, and hence notified them of the situation, and they, as prudent creditors, ‘stood not upon the order of their going,’ but made haste to reach their debtors, and to secure their own claim, and indemnify themselves against certain loss upon that for which they were sureties. They adopted the most expeditious and efficient means and methods for accomplishing their purpose. That is all there is about the transfer being at night, and being evidenced by an unrecorded pledge with delivery of possession, instead of by a recorded mortgage.
The transfer of some nineteen thousand dollars’ worth of goods in pledge to secure the payment of an amount approximating only $5,000 is not prima facie or per se fraudulent. It is a circumstance to be considered in determining the good faith of -the parties to the transaction. Inasmuch as a pledge, and also a mortgage of property, removes the property so pledged or mortgaged beyond the reach of other creditors under the ordinary process of execution, the placing under pledge or mortgage of an amount grossly in excess of what would be necessary, under any and all contingencies, to meet the debt intended to be secured might tend to show a purpose, upon the part of the debtor making and the creditor receiving such a pledge or mortgage, to hinder and delay other creditors in the collection of their debts. Therefore, where a fraudulent disposition of property is charged, it is always proper to consider the question of excess, in connection with other circumstances, to determine whether the debtor, in making the conveyance to one creditor, was seeking some undue advantage for himself against other creditors, in which the favored creditor was assisting him. Bennett v. Union Bank, 5 Humphreys, 612-617; Burgin v. Burgin, 1 Ired. L. (N. C.) 453-459; Ford v. Williams, 13 N. Y. 577; S. C. 67 Am. Dec. 83; Bump, Fraud. Conv. § 58; Wait, Fraiid. Conv. § 238a, and authorities cited. The fact that the amount pledged greatly exceeded the debt does not show any fraud in the present instance. The pledge of the dry goods to Gus Blass & Co. immediately transferred the possession of the same to them, and, as to said goods, immediately took it out of the power of Grilling & Co. to use them any longer for their own profit. The language of the pledge indicates that Gus Blass & Co. were to proceed immediately to use the goods in pawn for the payment of their debt, and it is not shown or even pretended that, duiing the short interval in which Gus Blass & Co. had tlie possession of the goods, they used or attempted to use and dispose of same in any manner detrimental to or inconsistent with the rights of other creditors.' It is not shown that they sought to collect any more than their own debt, or in any manner to assist the debtor in gathering unto himself forbidden gains. Likewise it may be said of the proceeding under the trust deeds and mortgages. The effort under these was simply to collect in the legal way the debts which had been provided for in said deeds.
The fact that $1,708.75 was included in the pledge for which Blass & Co. were only liable as indorsers was not evidence of a fraudulent purpose in taking the pledge, and could not render the same nugatory and void on that account. Griffing & Co. were notoriously and hopelessly insolvent. It was only a matter of time, and of a very short time at that, when Blass & Co. would have the note to pay. They only purported, in the pledge, to indemnify themselves in the event of their having the note to pay. It was a perfectly legitimate transaction, indicating foresight rather than fraud. The fact that the same amount was also included in a mortgage to secure the Bank of Conway could not affect Gus Blass & Co. with fraud, even if it had been any evidence of a fraudulent purpose upon the part of Griffiug Co. It remains that there could, in law, properly be but one satisfaction of the note, and there was no possible chance for any creditor to be defrauded because Gus Blass & Co. had provided indemnity for themselves in case of its payment. For, the moment Blass & Co., the first preferred creditors, paid off the note, that would extinguish the note, and eo instanti the mortgage given to the bank to secure it. So far as the compromise is concerned, the creditors are supposed to be dealing with each other “at arm’s length.” We see nothing that Blass & Co. might have done in connection therewith that could be regarded as a badge of fraud on their part. Certainly, no creditor was forced to accept any compromise, and the one complaining here has not done so as to the paying off of its debt for 45 cents on the dollar. The other provisions of the compromise, by which Blass & Co. for a certain price bought the goods from the receiver and executed to appellees a bond which was to take the place of the attached property, appellees assented to. We fail to comprehend how any kindly offices that might be extended by a favored creditor to his debtor who had preferred him, in bringing about a compromise with other creditors who had not been preferred, could be regarded as even tending to show actual fraud upon the part of the preferred creditor in the transfer of property which had been previously made to him. This is the most that could be said of the compromise.
The suggestion or contention that the pledge of Blass & Co. may be tainted with fraud, for the reason that Griffing & Co. a short time thereafter executed to Mrs. Griffing a mortgage which was indeed fraudulent, is an obvious non sequitur; for a creditor may know, at the time he takes his conveyance or transfer, that his debtor has an intent to defraud other creditors, but that does not prevent him from collecting his own debt, and, so long as he does not wilfully or intentionally, or by gross and inexcusable carelessness, assist his debtor to defraud another— his sole purpose being to collect • his own debt — any transfer or conveyance made with that end ih view will be upheld.
Second. Was there constructive fraud? It is insisted that the pledge to Gus Blass & Co. and the deeds to Martin, trustee, and the other mortgages, taken altogether, constitute an assignment for the benefit of creditors. We do not so construe them. It would be doing violence to the plain language and tenor of the instruments themselves to so construe them. They lack essential elements for an assignment. “Conveyances directly to creditors, in payment or by way of security for their own debts solely,” says Mr. Burrill', “are not generally assignments for the benefit of creditors.” Burrill, Assignments, § 3. The pledge to Gus Blass & Co. was made to them direct, no trustee was named or contemplated, and the transfer was to enable them solely to pay off their own debt. After they were paid, the property remaining was subject to various other mortgages and deeds of trust, to be sure, but there was no stipulation in the pledge, nor was any understanding otherwise shown, that Gus Blass & Co., after they were paid, should hold and manage the balance of the property as a trustee to raise money to pay other debts. The doctrine “that one or more instruments, in whatever form, or by whatsoever name, when executed with the intention of having them operate as an assignment, and with the intention of granting the property conveyed absolutely to the trustee to raise a fund to pay debts, shall constitute an assignment,” was announced under the peculiar facts in the case of Richmond v. Mississippi Mills, 52 Ark. 31. In Fecheimer v. Robertson, 53 Ark. 101, this court, through the same learned judge, shows that the case was not to be extended to cover cases not brought strictly within the facts upon which it was decided. Speaking of Richmond v. Missis sippi Mills, supra, Judge Sandels says: “Richmond’s agreement that Taylor should assume charge for himself and twelve others not represented or consulted, and that a man suggested by Richmond should be manager for all, together with many other circumstances indicating the intention of the parties, made it clear that the transaction in that case was an assignment.” See other cases cited in Fecheimer v. Robertson, supra. The facts of the case under consideration are altogether different from those of Richmond v. Mississippi Mills, and bear a nearer resemblance to the facts in Fecheimer v. Robertson. Certain it is that, so far as Gus Blass & Co. were concerned, they were trustees for nobody, acted for themselves, and themselves alone, and not in conjunction with any other creditor. Nor was there any concert of action among any of the various creditors.
It appears, from the terms of the compromise to which Goodbar & Co. assented, and the provisions of t’he bond filed in pursuance thereof, that said bond was to stand in lieu of the attached property, if Goodbar & Co. should establish “a lien on said property superior to that of Gus Blass & Co. and to the lien of those creditors of said L. B. Griffing & Co., to whom they gave mortgages on said property.” Conceding that the attachment should be sustained, we have been unable to find warrant for the ruling of the learned chancellor that the lien created by the attachment in favor of Goodbar & Co., appellees, is superior to that of Gus Blass & Co.
As to the ruling of the court sustaining the attachment against Griffing & Co., it suffices to say that there is evidence to support the finding of the chancellor in that particular.
Reversed and remanded, with directions to enter a decree in favor of Gus Blass & Co. for the proceeds of the attached property, and in favor of Goodbar & Co. for costs in the attachment against L. B. Griffing & Co., and for such other and further proceedings as may not be inconsistent with this opinion. | [
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Wood, J.
1. Parol evidence is admissible to prove that a certificate of acknowledgment was executed on a date other than that appearing on the face of it, without contravening the rule “that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a written instrument.” The factum of the acknowledgment is not questioned, and the rejected proof was to show the true date, of which the date it bore was only prima facie evidence. Hall v. Cazenove, 4 East, 477; Jayne v. Hughes, 10 Exch. 430; Randfield v. Randfield, 6 Jur. (N. S.) 901; Reffell v. Reffell, 12 Jur. (N. S.) 910; Gately v. Irvine, 51 Cal. 172; Shaughnessey v. Lewis, 130 Mass. 355; 1 Greenl. Ev. § 284, note D; 5 Am. & Eng. Enc. Law, 79; 7 Am. &Eng. Enc. Law, 91. See also Fisher v. Butcher, 53 Am. Dec. 436; Meech v. Fowler, 14 Ark. 29; Eolt v. Moore, 37 Ark. 148; Smith v. Scarborough, 61 Ark. 104.
2. The instrument sued on was incoherent and irregular in the order of its contents, as well as unusual in the manner in which it was written. Parol proof was properly admitted in explanation thereof, as same did not tend to contradict or vary the written contents. 1 Greenl. Ev. § 282.
This proof, as well as the writing itself, showed that, upon the happening of certain contingencies, the time for payment therein expressed was to be extended, though the time of such extension was not named in the instrument. Time was not of the essence of this contract. As no time was stipulated for its performance, the law will presume, upon the happening of the events provided for, that the parties intended performance of the contract within a reasonable time thereafter. What such reasonable time is will depend upon the facts'and circumstances surrounding the parties and influencing their conduct in entering upon the contract, as well as upon the nature and extent of the contract itself. Griffin v. Ogletree, 21 So. Rep. 488. The rulings of the learned ttrial court did not accord with these principles. Its judgment is therefore reversed, and the cause is remanded for new trial. | [
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Griffin Smith, Chief Justice.
Thorough Waterproofing Company was the trade name applied to a business conducted by Charles P. Sullivan during the greater part of 1947. Early in 1948 he approached Nevil C. Withrow regarding future operations. Until October, 1948, Withrow’s business was a partnership composed of his wife and himself; but in October a corporation designated Nevil C. Withrow Company was formed. For the purpose of this suit the corporation and Withrow are treated as one.
Sullivan’s connection with Withrow began March 3, 1948. In suing for claimed balances Sullivan alleged successive verbal contracts. Initially he was to be paid weekly wages equivalent to the union scale, “which was going to be” $2 per hour. At the end of the year a differential sufficient to bring his income to $10,000 would be paid. This arrangement, according to Sullivan, resulted from Withrow’s unwillingness or inability to carry a heavy payroll and provide sufficient unimpaired operating capital. Withrow, says Sullivan, agreed to reduce the agreement to writing, but explained several weeks later that his attorney had advised against a fixed commitment. In explaining Withrow’s attitude Sullivan testified that the amount could or would be increased to as much as $15,000 the second-year if the business continued to operate at a profit.
Sullivan's equipment was purchased for slightly more than $1,200.
Approximately six weeks after the oral contract is alleged to have been made Withrow informed Sullivan of his attorney’s objection to a flat guarantee; thereupon (says Sullivan) Withrow advanced a second proposal. It is claimed that under this recast relationship wages were to be paid as in the past — that is, there would be weekly withdrawals equivalent to the prevailing union scale applicable to a superintendent; — but the actual measure ,of compensation would be supplemented by 10% of the gross earnings of the waterproofing division. In testifying Sullivan said that under the first agreement actual weekly withdrawals were to be $80, but that at the end of the year the difference between this sum and the union schedule would be considered as earned. The same arrangement applied to the second contract except that instead of a flat $10,000 differential Sullivan would receive 10%. of the gross profits. Gross profits were to be ascertained after a third of the office, warehouse, rentals and insurance charges had been deducted.
The weekly payments fluctuated from $80, to $85, then to $100, and finally to $135.
Sullivan was very certain that Withrow had agreed to permit occasional examination of the books. Until a temporary agreement was made February 23, 1951, the contract now sought by Sullivan to be established rested entirely upon disputed parol, and notwithstanding his assertions respecting the first understanding and With-row’s flat refusal to put it into effect, Sullivan entered into the second employment stage with nothing to substantiate what is now claimed to have been a definite commitment other than his construction of promises alleged to have been verbally made.
Sullivan readily conceded that Withrow had breached his first contract, but just as unhesitatingly asserted that the second arrangement was projected at a time when he had complete confidence in Withrow’s veracity.
A voucher-check for $2,500, marked “bonus” was issued to Sullivan in August, 1949. The payee contended that in cashing the check (the voucher portion of which was detached and retained by Sullivan) he did not notice the word bonus; and, inferentially, he did not observe that $375 had been deducted for “W.H. [withholding] tax”, leaving the net amount $2,125. Printed on the voucher was the following: “By the acceptance and endorsement of the attached check the payee acknowledges payment as shown above”.
Sullivan knew — but the date of this information is not given — that the business lost money in 1949. He then added that no question was being raised that the $2,500 item was full payment for the first year. This statement was later contradicted.
About January 1, 1951, Sullivan was shown a financial statement disclosing losses in operation of the waterproofing division. He insists that for a protracted period efforts had been made to inspect the company books, but he was put off with the explanation that the records were in an auditor’s hands. Sullivan explained that the higher weekly withdrawals were “cost of living increases”.
Severance of relationship occurred when on February 23, 1951, Withrow wrote Sullivan that certain personal promotion work the latter was doing on company time was unsatisfactory. He was allowed to continue working, as the letter expressed it, “until you procure another place”. Sullivan does not contend that participating interests were payable after Withrow wrote this letter.
An independent audit of Withrow’s books was made at the Chancellor’s suggestion. Attached to Sullivan’s complaint was a statement showing that from March 3, 1948, to February 1, 1951, the amount appellee received was $14,027.50. The sum claimed to have been earned as union wages plus a superintendent’s stipend was $20,176.87, and the asserted unpaid portion was set out as $6,049.37. This is in addition to 10%.
The decree disallowed the additional wage claims, but gave Sullivan a 10% participating profit, less the bonus. The judgment was for $5,085.34.
Withrow was emphatic in his denial of the contract Sullivan seeks to establish. The original consideration resulting in the employment included purchase by With-row of Sullivan’s Thorough Waterproofing Company’s equipment. This was paid for and Sullivan’s duties were those of a superintendent, starting at $2 per hour, with a 40-hour week. Withrow did not, at that time, have union connections. He became contractually affiliated in the spring of 1951. The several increases in hourly compensation were agreed to because the company considered that its men were entitled to more pay as the cost of living advanced. Workers other than Sullivan were included in wage boosts. Although Sullivan was paid weekly with hours as a basis, deductions do not appear to have been made for partial weeks, and sometimes expense charges were allocated to different jobs. The latter practice .is illustrated by a check-stub in evidence of a payment made to Sullivan for the week ending August 23, 1950. Twenty hours of time put in by Sullivan were apportioned to The First Methodist Church contract (at $2 per hour) and the remaining half to Warehouse (“Consistory”). It is noteworthy that the payment is marked “wages, less social security, $1.50, [and] withholding tax and insurance, $8.05”.
The bonus payment, said Withrow, was more than a gratuity, but it was in no sense contractual. The waterproofing division had made money that year and the feeling was that those who primarily promoted the current success should be rewarded. Minutes of directors’ meetings were introduced, one showing that on August 3, 1949, the chairman (Withrow) “proposed” that Sullivan be paid $2,500 as a bonus. This was later changed by substituting the word “reported”. It was felt’by Sullivan’s counsel that the alteration was an afterthought and that the minutes did not correctly reflect what was actually done. Comments made by the Chancellor indicate that he did not attach any importance to the alteration, and we agree in that respect.
Circumstances that cannot be ignored or explained away strongly substantiate Withrow’s understanding of the contract. For instance, the union wage scale from August 24, 1950, to December 31 of the' same year was $3 per hour, but Sullivan was paid $3.37% an hour. From January 1, 1951, to February 21, the union scale was $3.25, but Sullivan drew $3.37%. The result is that from August, 1950, appellee was being paid more than the union wage.
The case is difficult, as the Chancellor undoubtedly found, because the word of one man was challenged by the other. But it is inconceivable that Sullivan can be correct in his insistence that he did not read the notation on the bonus check. In the first place each party agrees that the bonus was to be $2,500, yet the check was for $2,125 when reduced by $375 representing withholding tax. It seems wholly unreasonable that one who expected $2,500 would accept $2,125 without observing the deduction. This, however, is not controlling. For many years Sullivan had been a railway locomotive fireman with final monthly earnings of from $350 to $450. It is not disputed that he told Withrow that operation of his (Sullivan’s) waterproofing business could not be satisfactorily handled by one man, and Withrow’s testimony is that Sullivan approached him and suggested selling. Seemingly the price fixed by Sullivan was satisfactory.
There is nothing, other than Sullivan’s contention, to indicate that at year’s end (the company’s fiscal period closed Sept. 30) demands were made for settlement, or that a claim was advanced for the sums now contended for. Surely, after Withrow had declined to perform under the first agreement, any prudent person looking back upon the first default Sullivan alleged, would have required something more tangible than parol as a guarantee that wages would be paid under the verbal stipulation, and that in addition he would be given ten percent of the so-called “gross” earnings — earnings not based upon company profits, but upon income less relatively small deductions.
Nothing has been pointed to in Withrow’s conduct covering a period of nearly three years to distinguish his actions from the course any business man or organization would be expected to follow. Not until the letter of dismissal was received did Sullivan pursue an affirmative course other than to say at trial that he asked for account hook information and discussed with Withrow the adjustments now said to he due. On the other hand every scrap of writing, such as checks, vouchers, payrolls, etc., shows ordinary business procedure with no indication that differentials were in dispute. In these circumstances, where the burden of proving the oral contract was upon appellee, we are unable to say that the evidence preponderates in Sullivan’s favor, or that it is evenly balanced.
Reversed and cause dismissed. | [
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Griffin Smith, Chief Justice.
R. L. Reeves, who for many years had been a Lion Oil Company employe, was injured February 11,1949. His claim for permanent partial impairment of the left hand to the extent of 75% was admittedly compensable under the Workmen’s Compensation Law. The appeal does not involve Reeves ’ right to payment during tire healing period terminating January 9, 1950, while he was unemployed.
It is agreed that Reeves ’ weekly wage when he became incapacitated, computed under the formula supplied by the compensation law, was $56.80; hence the disabled worker was entitled to the maximum allowable of $25 per week, Ark. Stat’s, § 81-1310(a).
But Lion Oil Company’s policy was to pay its employes during temporary disability of the kind involved, and the amount so paid is measured by the wage or salary existing when the misfortune occurs, plus any increase applicable to the group of employes to which the particular worker belongs.
A class increase granted during Reeves’ period of disability raised his weekly income from $56.80 to $70.13. The healing period continued for 47 2/7 weeks. During that time Reeves was paid an average of $60.22 per week, $35.22 of which was in the nature of a courtesy grant: that is, it exceeded the compensation requirement of $25 by the sum mentioned. This excess payment of $35.22, multiplied bjr the weeks and the fraction taken for healing, amounted to $1,665.06.
The Commission found that under § 13(c) of Initiated Act No. 4 of 1948, Ark. Stat’s, § 81-1313, the employe should be paid for a specific injury, and that such payments must continue after healing until a maximum of 150 weeks had been accounted for. However, since the degree of impairment was but 75%, the top allowable of $25 per week would be three-fourths of 150 weeks -(112y2) multiplied by the monetary factor, or $2,812.50. These figures would not be disputed if the Commission’s construction is correct. The oil company does not contend that additional payments may not become due at a later date. On the contrary it takes the position that, because Reeves’ income during the healing period and at all times since has been greater than any weekly sum legally allowable by the Commission, nothing more in the nature of compensation can be awarded until the claimant’s wages fall below $25 per week. Sallee Brothers v. Thompson, 208 Ark. 727, 187 S. W. 2d 956; Conatser v. D. W. Hoskins Truck Service, 210 Ark. 141, 194 S. W. 2d 680.
In addition to its finding that the specific injury was compensable per se, the Commission concluded that when the oil company made the supplementary weekly payments of $35.22 a gratuity was intended; but, regardless of what the motivation was, this total of $1,665.06 could not be allowed as partial offset against the award of $2,812.50.
On appeal to circuit court the Commission’s finding tliat the injury was compensable specifically was upheld, but its refusal to permit the oil company to take credit for the $35.22 paid weekly as supplement during the healing period was reversed.
In the Sallee Bros.-Tliompson case the Commission ruled that a claimant was entitled to compensation upon a showing that ho had sustained a permanent partial disability to his body as a whole, even though the worker may be employed at a higher wage than was paid before the injury, “if he can show that as a result of the injury he is forced to compete in the open labor market as a handicapped worker.” This Court reversed, but in doing so we were construing the Act of 1939.
Section 81-1313 (c-23), considered in the Sallee appeal, referred to “all other cases” — being those cases not enumerated in the preceding subsections. This non-specified class of disability was compensable at '65% of the difference between the worker’s average weekly wage “and his earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability,” etc.
In the Initiated Act “other cases” are treated in § 81-1313(d) and the language is: “A permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole, which shall have a value of 450 weeks, and there shall be paid compensation to the injured employe for the proportionate loss of use of the body as a whole resulting from the injury.” The words, “and his earning capacity thereafter in the same employment or otherwise ’ ’ have not been brought forward in the new measure.
Divisions (21) and (22) of subsection (c) treat total loss of use of enumerated parts of the body, and (22) deals with partial loss or partial loss of use. For permanent partial impairment of a member, the compensation provided is for the “proportionate loss or loss of use of the member. ’ ’
In view of the change in language found in the Initiated Act, and in obedience to the universal policy of courts to construe compensation measures in a manner reasonably calculated to effectuate the legislative intent (or, as in the case of an initiated amendment, to barry out the presumptive intention of those who framed the measure and the people who adopted it), we are unable to say that the Commission was in error when it determined that payment for permanent partial disability in the circumstances of this case was not the plan, and that compensation must be made whether the subject is employed or unemployed, and this is true irrespective of what his wages may be. The Circuit Court correctly affirmed this phase of the appeal.
We have not overlooked appellant’s contention that the new law, subdivision (e) of § 81-1302, defines disability as “incapacity because of injury to earn, in the same or any other employment, the wages which the employe was receiving at the time of the injury. ” It is quite likely that when the initiated measure was written its framers had in mind the Commission’s expression that a worker who had sustained partial permanent disability “was forced to compete in the open market as a handicapped worker.” In any event the amendment should be considered as a whole.
On the second issue we agree with the Circuit Court in its holding that payments by the oil company in excess of $25 per week should in the circumstances of this case, be credited against the full award.
Section 81-1319(m) is: “If the employer has made advance payments of compensation he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due. If the injured employee shall receive full wages during disability he shall not be entitled to compensation during such period. ’ ’ The old Act § 81-1319 (7c), begins like the current measure, but the second sentence reads: “If the injured employe receives wages during disability, the amount of such wages shall be deducted,” etc. Difference is that the Act of 1939 said “wages,” while the current measure speaks of “full wages.” Otherwise the two provisions are in effect the same.
Beeves’ attorneys maintain that the supplemental weekly payments, being $25 short of “full wages,” could in no sense come within the protection of subdivision (m) —this for the reason that the added sums of $35.22 were not advance payments on compensation; (2) the claimant was entitled to statutory benefits during the healing period because full wages were not being paid.
No controversy involving this carefully argued distinction has been before us and construction is necessarily a matter of first impression.
Lion Oil Company is a self-insurer. Its policy to pay an injured employe the prevailing wage scale while inactive during a healing period is in line with modern conceptions of employer-employe relationships. A corporation that is shown to have pioneered or willingly adopted this practice should he commended and encouraged rather than penalized.
This is the first case construing the initiated measure in a way permitting specific compensation to workers who have suffered permanent partial disability, and holding that earning capacity equal to or in excess of statutory payments does not suspend the employer’s obligation to pay. Perhaps the oil company could have protected itself within the letter of the law by paying full wages and allowing compulsory compensation to await Commission determination. But seemingly neither party had in mind the peculiar words of the statute. The transaction was being dealt with in a practical, common sense manner. Our feeling is that in the absence of judicial construction the mutual interests of Beeves and Lion Oil Company were being satisfactorily served when payments aggregating “full wages” were made, and that neither party at that time had the slightest idea any advantage would be asserted. It is highly improbable that Beeves thought the excess payments he received were gratuities, and certainly the oil company was endeavoring to provide for the worker’s current needs.
The judgment of the Circuit Court is affirmed.
Mr. Justice McFaddin, Mr. Justice Millwee, and Mr. Justice George Rose Smith agree to that part of the opinion holding that the claimant was entitled to compensation for a specific permanent partial disability, but they dissent from the finding that credit should be allowed Lion Oil Company for the excess payments, their position being that the Commission correctly held that these were gratuities. | [
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Robinson, J.
Appellants filed this suit, alleging that appellees had wrongfully constructed certain levees which blocked the natural drainage of the area involved, and prayed for a mandatory injunction requiring the removal of such alleged obstructions. The defendants denied impeding the natural drainage and pleaded the statute of limitations. The chancellor held there had been no stoppage of the natural drainage by defendants.
The transcript contains a thorough and exhaustive opinion of the chancellor, showing that all the facts in the case were taken into consideration, and, since after an examination of the record, we agree with the conclusion reached by the chancellor, we set out here the parts of the opinion necessary to an understanding of the case :
“The plaintiff, Jones, is the owner of a tract of land in Section Twenty-one directly south of the 160-acre tract belonging to the defendants in Section Twenty-one. The plaintiff, Brinkerhoff, is the owner of 160 acres of land south and southeast of the 80-acre tract of land owned by the defendants and located in Section Twenty-two. All other lands involved are to the east and southeast of the defendants’ lands.
“The defendants have owned and farmed to rice, since 1937, the 160-acre tract of land located in Section Twenty-one. Immediately east of the 160-acre tract, but in Section Twenty-two, is a more recently acquired property of the defendants, the same being known as the Meister land.
“All lands involved in this litigation are west of Crowley’s Ridge. What is known as Town Creek, Pat Denver Creek, and Ainsworth Creek, have, for many years, drained a portion of Crowley’s Ridge, and some distance east of the lands in question have converged and continued west for some distance as a well defined stream. It appears from the testimony that when this stream reached the flat lands west of the ridge, it left its well defined banks and spread out over the flat lands, following the lowest portions thereof in a generally westerly direction, until they reached L’Anguille River.
“It is conceded that about the year 1910, Drainage District Number 3, known also as L’Anguille Drainage District, was organized, and certain ditches constructed west of L’Anguille River. L’Anguille River itself became a part of this drainage system, and a ditch was constructed, presumably straightening and widening that river.
“About 1918 a lateral ditch in this drainage district was constructed, and this ditch intercepted the creek coming from the ridge at a point about 220 yards east of its western terminus. This lateral ditch was constructed to flow due north and with the fall toward the north, so as to drain the waters into an east and west lateral which ran directly into L’Anguille River. There was also a lateral coming from the north of the east and west lateral forming a ‘T’, thus leading to the naming of the three laterals mentioned as one lateral under the name of ‘T-LateraP.
“The testimony shows that when the T-lateral was constructed the end of Town Creek, 220 yards west of the beginning of the T-lateral, was filled in, but that Mr. Meister, who then owned the 80-acre tract in Section Twenty-two now belonging to the defendants, removed that obstruction so that as the flood waters receded, they would run back into Town Creek; thence northeast into the T-lateral, and by that system of drainage into L’Anguille River.
“The defendants constructed a dike, or levee, on the east and south sides of the 160-acre tract of land and used those levees, or dikes, since 1937. After acquiring the 80-acre tract to the east, the defendants constructed a levee on the east and south sides of that tract and built another levee on the east side of the 160-acre tract which, together with the levee that was already there, has since been used as a flume.
“It is the contention of the plaintiffs that there is a well defined water course running in a southeasterly direction from the mouth of Town Creek to a point near the south line of the 80-acre tract; thence in practically a due westerly direction to a point in the southeast corner of the 160-acre tract; thence in a northwesterly direction across the entire 160-acre tract to the northwest corner thereof, and from there in a northwesterly direction to L ’Anguille River.
“The defendants deny that such a water course exists, or ever existed, and, in addition thereto, plead the three-year statute of limitations. Prom the view taken by the court, it is unnecessary to discuss the statute of limitations.
“The plaintiffs in their brief, notwithstanding the usual and commendable enthusiasm in the interest of their cause, have been unusually frank in their statements. Por instance, they call attention to the fact that it is conceded by all witnesses that Town Creek and its tributaries drain a portion of Crowley’s Ridge and lands west thereof through a well defined, channel, and that said well defined channel extends west 220 yards past the intersection of the south end of the T-lateral and Town Creek. They then state:
“ ‘Prom this point to the northwest corner of the northeast quarter of said Section Twenty-one there is no well defined ditch with banks, but after reaching said northwest corner of the northeast quarter of Section Twenty-one there is a well defined channel with ditch and banks northwest, then southwest, into L’Anguille River.’
“Thus it will be seen from the plaintiffs’ own statement that they do not contend that there is a well defined channel over and across any part of the defendants’ land, but that the well defined channel disappears east of the defendants’ land and does not reappear until after it passes out the northwest corner of defendants’ lands.
“This is substantiated by plaintiffs’ own witness, Darrell W. Fox, a surveyor who surveyed the lands in question and filed as Exhibit ‘1’ to his deposition a, plat thereof. At page 8 of the transcript, Mr. Fox testified that he showed a ‘creek, ditch or slough’ with double lines. It is significant to note that, in tracing the so-called water course across the defendants’ lands, he used only a single line throughout the entire length thereof. And at page 54 of the transcript, he described the so-called water course as a ‘sway.’ Again, at page 9, he testified that the land in question was practically flat.
“Much stress is placed upon the fact by the plaintiffs that the witness, Fox, testified that water was running across defendants’ land at the time his survey was made, and they further stress the fact that the defendant, Reddmann, admitted this. Nowhere in the record, insofar as the court’s investigation has disclosed, is it shown just when this survey was made; that is, what time of the year. This, of course, would have quite a bearing in this connection. It is significant, however, to note that the engineer or surveyor’s plat was dated March 3rd, 1950.
“Again, in the plaintiffs’ brief it is stated that, from the proof and plats filed, there seems to be two sources of water coming from the east: one, Town Creek and its tributaries, being carried by a well defined ditch to a point 220 yards west of the south end of the T-lateral and there ‘flattening out’ over a depression from one hundred to four hundred feet wide, and for a distance of five thousand feet, at which point it again gets in a well defined ditch and flows from there to L’Anguille River; the other source they say originated on the Bob Lamb and John Gant lands, which are east of the Brinkerhoff land. They say that this water, part of which may come from Town Creek, is gathered in a well defined channel on the Gant and Lamb property and carried south to Highway 14, where it connects with Ditch Number 10 extended south by means of a culvert under the highway. It appears that, because of the fact that Ditch Number 10 is so grown up, it only carried, after big rains, a portion of this Gant and Lamb water, and the balance of it is forced west on to the Brinkerhoff and Jones land.
“It is quite apparent to the court that the purpose of the construction and creation of the T-lateral and of Ditch Number 10 was to carry the water of Town Creek. Of course, as long as the water is within the confines of the banks of the creek and lateral, it is the stream of water leading to L’Anguille Biver. When it overflows its banks, the water coming therefrom is overflow water, or flood water, or excessive rain water, as it is referred to throughout the plaintiffs’ brief and reply brief. It is not the duty of a landowner to provide a means by which flood water may be carried over and across his lands.
“Many cases of a similar nature appear in the official reports of our Supreme Court, and quite a few cases are cited by both parties to this litigation in their briefs. The court is of the opinion, however, that this case is controlled by the ruling laid down in the case of Leader v. Mathews, 192 Ark. 1049, 95 S. W. 2d 1138, and referred to in the more recent case of Lent v. Alexander, 218 Ark. 277, 235 S. W. 2d 953, wherein it was said:
“ ‘A landowner has the right to defend himself as against a common enemy without rendering himself liable for damages, unless he unnecessarily injures or damages another for his own protection. A landowner is under no duty to receive upon his land surface water from the adjacent property, but in the use or improvement of it he may repel such water at his boundary.’
“That the defendants have used the 160-acre tract of land as a rice farm for some fourteen or fifteen years is unquestioned. And the use of the very part of the land claimed to be a water course for such purpose absolutely destroys the contention that it is a natural water course. And the most that can be said is that in the case of overflows, or excessive rains, the water naturally follows the contour of the land, and if unobstructed would recede over this ‘sway,’ as indicated by plaintiffs’ witness.
“There is yet another reason why the plaintiffs should not be permitted to prevail, and that is shown by the supplement to the plat filed by the witness, Fox. In this plat he projects the so-called water course from the northwest corner of defendants’ lands over and across sections 16 and 17, and into L’Anguille River. This plat shows that there are two obstructions across this so-called water course in section 16.
“Apparently there has been no maintenance work done in the drainage district in question for a period of some thirty-four years, and it can be readily understood that the system has deteriorated to such an extent that flood waters inundated all of the property in question more frequently than it was ever anticipated.”
The decree is correct, and is therefore affirmed. | [
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Battle, J.
The Colonial & United States Mortgage Company instituted an action against S. E. Sweet, in the St. Francis circuit court, to recover a sum of money due it on cer tain promissory notes, and to foreclose a mortgage executed to secure the payment of the same. It recovered a judgment against Sweet on the notes for $3,981.67, and a decree appointing a commissioner and ordering him to sell the lands described in the mortgage and thereby conveyed as a security, and that the sale be made for the purpose of paying the judgment. The commissioner, in pursuance of the terms of the decree, advertised the lands to be sold, and notified the attorney of plaintiff of the day of sale. At the request of plaintiff’s attorney, N. F. Lemaster agreed to attend the sale, and bid the amount of the decree for the lands in the name of and for plaintiff. The commissioner attended at the time and place appointed, and sold the lands to Walter Sweet at one minute before 3 o’clock in the afternoon, for the aggregate sum of $2,500, he being the highest and best bidder. Before he commenced the sale, the commissioner again notified the attorney of plaintiff by telegram of the fact that the land would be sold according to the notice. Lemaster had entirely forgotten the sale until he was shown the telegram, when he immediately, at ten minutes past twelve o’clock on the day of sale, delivered a dispatch to the telegraph operator at Memphis, Tenn., to be sent by telegraph to Forrest City, Ark., distant from Memphis about forty or forty-five miles. ' It was addressed to the commissioner, and requested him to bid the full amount of the decree for the lands, and that he make the bid for plaintiff’s attorney. No reply to his telegram was received by the commissioner until six minutes after three o’clock in the afternoon of the day of sale.
At the term of the court following the sale the commissioner made a report of his proceedings; and thereafter the purchaser asked the court to confirm the sale, and order the commissioner to convey the lands to him, and the plaintiff moved the court to allow him to advance the bid of the purchaser to the full amount of the decree. Evidence showing the facts was submitted by both parties. The clear preponderance of it showed that the lands were sold at their market value. The fairness and regularity of the sale was unimpeached by evidence. The court found that the sale was fair and regular, and made in conformity to the terms of the decree; “that no unfair or improper conduct is imputable to the purchaser or commissioner;” that the lands were sold for their market value; and confirmed the sale, and ordered the commissioner to convey the lands to the purchaser. Plaintiff appealed.
Did the court err in refusing to allow appellant to advance the bid of the purchaser? In Graffam v. Burgess, 117 U. S. 180, 191, Mr. Justice Bradley, speaking for the court, said: “It was formerly the rule in England, in chancery sales, that, until confirmation of the master’s report, the bidding would be opened upon a mere offer to advance the price ten per centum. * * * But Lord Eldon expressed much dissatisfaction with this practice of opening biddings upon a mere offer of an advanced price, as tending to diminish confidence in such sales, to keep bidders from attending, and to diminish the amount realized. * * - * Lord Eldon’s views were finally adopted in England in’ The Sale of Land by Auction Act, 1867, 30 and 31 Yict. c. 48, § 7. * * * In this country Lord Eldon’s views were adopted at an early day by the courts, and the rule has become almost universal that a sale will not be set aside for inadequacy of price, or unless the inadequacy be so great as to shock the conscience, unless there be additional circumstances against its fairness; being very much the rule that always prevailed in England as to setting aside sales after the master’s report had been confirmed.”
It is well settled by the weight of authority that there is no duty resting upon a court to set aside a sale of land for the purpose of allowing an interested party to advance the bid of the purchaser, where the sale is in accordance with the decree directing it, and the property sold has brought its market value, and the purchaser and those conducting or controlling it have committed no fraud, unfairness or other wrongful act injurious to the sale, and there is no occurrence, or “special circumstance, affording, as in other cases, a proper ground for equitable relief;” and that appellate courts should not interfere with or set aside orders of the court confirming it. 4 Kent, Comm. (13 Ed.) marginal p. 192; 2 Jones, Mortgages (5 Ed.), §§ 1640, 1670, 1676, and cases cited; 1 Sug. Yend. (7 Ed.) Perkins’ Notes, 93; Babcock v. Canfield, 36 Kas. 437; Adams v. Haskell, 10 Wis. 123; Duncan v. Dodd, 2 Paige, 99. Am. Ins. Co. v. Oakley, 9 Paige, 259.
Appellant cites Tennessee cases to show that the sale in question should be set aside for the purpose of allowing it to advance the bid of the purchaser. But “in Tennessee, before confirmation, the rule is now settled that a simple advance of 10 per centum, without any circumstance whatever of fraud, accident or mistake, shall be sufficient to open the biddings, and that the practice must be liberally applied to effectuate the purpose of procuring the largest possible price.” Click v. Burris, 6 Heisk. 539; Glenn v. Glenn, 7 Heisk. 367; Lucas v. Moore, 2 Lea, 1; Atkison v. Murfree, 1 Tenn. Ch. 51; Vaughn v. Smith, 3 id. 368; Atchison v. Murfree, 3 id. 728. This doctrine is contrary to the rule almost universally adopted in this country.
The sale in question was made in accordance with the decree authorizing it; the property sold brought its market value; the conduct of the commissioner in respect to it is beyond censure; the action of the purchaser is unimpeached by evidence; the sale is untarnished by an irregularity or unfairness; the mortgagor does not complain; the mortgagee (the appellant) failed to attend the sale through his own negligence, and failed to acquire the lands, but is entitled to receive under the sale their equivalent in value, and is thereby fully indemnified for his failure to attend. We think the order of the court confirming it should be affirmed, and it is so ordered. | [
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Ward, Justice.
Appellant, as a citizen and taxpayer of Greene County, brought this suit against appellee, the County Judge, to enjoin him .from certain allegedly illegal practices and to recover for the County sums of money which he allegedly drew illegally and also sums in excess of his authorized salary as County Judge. The pleadings, in substance, are as set out below.
The complaint states, generally, that: appellee, for the years 1947 to 1951 inclusive, has drawn from the public funds over and above his authorized salary large sums under the guise of “expenses”, and that he will continue to do so; appellee has procured and cashed the following warrants — (here is set out 63 in number totaling $4,350.75); he is drawing his salary in advance, and will continue to do so. The prayer was that appellee be enjoined from collecting “expense” money over and above his authorized salary and from collecting his salary in advance, and for recovery of $4,350.75.
Appellee filed a motion to make the complaint more definite and certain by pointing out in what respect each item is illegal and invalid. This same motion was also filed later, but on both occasions it was refused by the Chancellor. In our opinion had the motion been granted, it would have lent clarity to the proceedings that followed.
The answer alleges: a denial that appellee is drawing illegally amounts for “expenses”; that there is an adequate remedy at law by appeal from the County Court; that some of the warrants were for cash items such as wood, stamps, etc., which appellee paid for upon receipt with his own money and later filed his claim therefor, and that this was the custom; that the 3 years statute of limitations applies; that appellee, at all times covered by the suit, has been Ex-Officio Road Commissioner and entitled to draw expenses as such, and that his actual expenses have been more than the amounts drawn; that for the years 1949, 1950 and 1951 the quorum court appropriated funds in the sum of $100 per month, in advance, for expenses of the Road Commissioner ; denies that he is wrongfully and unlawfully drawing his salary in advance, or that he will continue to do so; and that his accounts for the years 1947, 1948 and 1949 have been duly audited by the State Auditorial Department of the Comptroller’s Office, that it is the duty of the Comptroller to demand payment for any liability and no such demand has been made by either the Attorney General or the Prosecuting Attorney, and that, therefore, this action by the appellant is premature.'
A reply was filed by appellant denying appellee was Ex-Officio Road Commissioner, denying that the necessary expense for appellee as sncb road commissioner has been in excess of the amounts he has drawn, and denying all other allegations in the answer.
Stipulation. It was stipulated that appellee drew and cashed certain small warrants issued to him in instances where he had paid out his own money for wood, stamps, etc., and was reimbursed for same and that this had been the practice, but that he would not continue the practice; that appellee had drawn $100 per month as road commissioner each month since the suit was filed; that he drew $50 per month as such commissioner for the last five months in 1948, and that he drew $100 as commissioner for each month thereafter up to the time of filing this suit; that he would testify that for each and every month his expenses equaled or exceeded the amounts drawn; that the County received value for all items for which he was reimbursed; and that on November 19, 1951, the Quorum Court appropriated $600 for each of the years 1947 and 1948.
Evidence. Appellant introduced no witnesses and the only witnesses testifying for appellee were himself and Robert L. Wrape, the man who sold him the small amounts of fuel wood. There is little, if any, disagreement over the facts in this case. It is undisputed that appellee did draw some of his salary in advance; that he made no profit from the small out-of-pocket purchases and that the County got value received for all reimbursements ; that there were no appropriations made by the Quorum Court for expenses of the Road Commissioner in 1947 and 1948, but were made or attempted to be made in 1951; and there was a proper appropriation for the year 1949. The exhibits show that the appropriations were by the Quorum Court supposedly for expenses of the Road Commissioner for the years 1949, 1950 and 1951, although the language employed could have been made plainer, as will be noted later.
At the conclusion of the hearing the Chancellor, after taking the matter under advisement and after the presentation of briefs, made a comprehensive statement of facts and conclusions of law, and dismissed appellant’s complaint. This statement evidences much thought and research, and we agree with many parts of it, but, for reasons hereafter set out, we have concluded the cause must be reversed for further proceedings. In the discussion that follows we have in mind that this case involves matters of public interest about which there seems to be more or less confusion, and that perhaps this fact justifies a consideration of some points that might not otherwise be required.
The right of appellant to maintain this suit. It is insisted by appellee that appellant, as a taxpayer, has no such right because of Act No. él of 1931 [part of which is Ark. Stats., § 13-227]. This Act, as indicated above, invests the Comptroller’s Office with the authority to audit county records and file same with certain officials to be used as evidence, etc. It is the view of appellee that this Act vests exclusive authority in the Auditorial Department of the State and in certain state and county officials to institute actions such as this one, and that appellant, therefore, has no such right. We do not agree with this contention. There is nothing in the Act itself which is susceptible to such an interpretation. Moreover, the right of an individual taxpayer to maintain such a suit is founded in Art. 16, § 13, of the State Constitution. This view has been sustained by this Court. In Samples v. Grady, 207 Ark. 724, 182 S. W. 2d 875, it was said:
“The Constitution (art. 16, § 13) provides that ‘any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.’ ”
“This court has construed that provision to mean that a misapplication by a public official of funds arising from taxation constitutes an exaction from the taxpayers and empowers any citizen to maintain a suit to prevent such a misapplication of funds.”
In McLellan v. Pledger, County Treasurer, 209 Ark. 159, 189 S. W. 2d 789, after quoting the section of the Constitution set out above, the Court referred to Farrell v. Oliver, 146 Ark. 599, 226 S. W. 529, and quoted therefrom as follows:
í < There is eminent authority for holding, even in the absence of an express provision of the Constitution, such as referred to above, that a remedy is afforded in equity to taxpayers to prevent misapplication of public funds on the theory that the taxpayers are the equitable owners of public funds and that their liability to replenish the funds exhausted by the misapplication entitle them to relief against such misapplication.”
The three years statute of limitation applies here, as is contended by appellee. Very much the same question was presented in the case of State, Use and Benefit of Garland County, et al v. Jones, et al, 198 Ark. 756, 131 S. W. 2d 612, where the court considered the application of the three years statute and also the five years statute and chose the former, using the following language:
“An analysis of such decisions as throw light upon the question here involved has convinced us that an action to recover money paid or obtained through an honest mistake of fact or law, in the absence of fraud, corruption, or wilful diversion, is an action founded upon an implied contract or liability, not in writing, and must be commenced within three years.”
It was held in Baker v. Allen, 204 Ark. 818,164 S. W. 2d 1004, that fees wrongfully withheld by the sheriff could not be collected from him where such fees were received more than three years before the suit was filed.
Out-of-pocket payments by the County Judge. It appears that appellee, thinking he was favoring the County by saving the expense of filing small claims, followed the custom of paying for small essentials such as wood, stamps, etc., out of his own funds and then allowing a claim against the County for reimbursement. It is not claimed that the County did not get full value or that he profited by such transactions. In commenting on this practice the Chancellor stated there was nothing for him to do but hold it illegal. We agree with the Chancellor, on the authority of Ark. Stats., § 22-612 and the inhibition in the Constitution [Art. 7, § 20] against a county judge passing on his own claim. During the hearing appellee stated that he would not continue such practice if it was held illegal and, on this statement by appellee, the Chancellor denied appellant’s prayer for injunctive relief. We think the Chancellor was in error, or at least we think it would have been a more wholesome procedure to have granted the relief prayed for, particularly since a matter of costs was involved and there was no offer on the part of appellee to share the payment or any portion thereof. We also agree with the Chancellor that no recovery can he had against appellee for the amounts so received by him under the circumstances in this case and under the holding in the recent case of Dowell v. School District No. 1, Boone County, 220 Ark. 828, 250 S. W. 2d 127.
Drawing Salary in Advance. The county judge’s salary is payable quarterly and it is not denied that in some instances appellee did draw his salary for the full period in advance, and it appears from the testimony that he might have quit this practice only after the suit was filed. Payment of salary is for services rendered and should not be paid until the services have been rendered. We do not agree 'with appellant that appellee had no right to allow a claim and issue a warrant for his own salary, because his salary is fixed by law and his actions therein involved no discretion. Under the authority of the Dowell case cited above, the Chancellor was correct in refusing to require appellee to repay that portion of his salary drawn in advance, but, for reasons before-mentioned, he should have enjoined such practice in the future.
Ex-Officio Road Commissioner. It is the contention of appellant that appellee had no right to draw expense money as Ex-Ófficio Koad Commissioner because no such office or position exists. This contention cannot be sustained.
Act 97 of 1929, § 2, provides that “Each of the County and Probate Judges is hereby made Ex-Officio Eoad Commissioner of his county . . .” and further provides that the quorum court may make appropriations for their expenses. This section of said Act 97 has never been repealed and is still the law. To determine this fact it was necessary to examine a large number of other related acts. Without going into unnecessary details a summary of our investigation will suffice.
The original act dealing with county judges’ salaries and Ex-Officio Eoad Commissioners was Act 140 of 1927. Section 1 of this Act fixed the salaries of all county judges in the State on a county basis, while § 2 created the position of Ex-Officio Eoad Commissioners. Act 59 of 1929 amended § 2 of said Act 140 by re-enacting the same but fixing the expenses of the Ex-Officio Eoad Commissioner in Conway County at $1,000 per annum. Said Act 97 was re-enactment of Act 140 except that in fixing all county judges’ salaries it changed some and left off the provision about Conway County. Following the passage of Act 97 of 1929 the Legislature passed a large number of acts amending § 1 of said Act 97, rewriting the entire section, apparently for the purpose of changing some of the judges’ salaries, but none of these acts repealed or changed § 2 of Act 97 which provides for Ex-Officio Eoad Commissioners. An additional indication that the Legislature meant to retain Ex-Officio Eoad Commissioners is the fact that all the amendatory acts referred to contained a proviso that in White County the judge’s salary should include his expenses.
In this connection it must be noted that appellant contends Ex-Officio Eoad Commissioners were done away with by the Legislature by the passage of Act 379 in 1939. This Act creates a County Highway Commission composed of the County Judge and two members appointed by him with the approval of the levying court, and provides that the two appointed members shall draw $5 per day (for not more than 12 days in any one year) as compensation. It is our view that said Act 379 is in no way inconsistent with the retention of Ex-Officio Road Commissioners, particularly since the Act itself contains no such repealing clause.
Appropriations by the Quorum Court. Appellant argues that even though it be conceded the office of Ex-Officio Road Commissioner does exist there were no legal appropriations made for such expenses by the Quorum Court in this instance. Possibly this contention does not go to the years 1949, 1950 and 1951, but if it does we cannot agree with appellant. The record shows, for the first year, “Expenses of County Judge as Road & Bridge Comm., $1,200.00.” Certainly the insertion of the word “Bridge” in the appropriation item is no indication that it was meant for anything other than expenses for road commissioner. For the other two years the appropriation item reads ‘ ‘ County Judge Car Expense, $1,200.00.” Of course, this language might have been improved upon and made more definite, yet the Act does not set forth any required language for appropriations, and since there is no showing or contention that the money was intended or used for any other purpose than expenses for Ex-Officio Road Commissioner, we deem it a sufficient compliance with the law for that purpose.
No Appropriation for 194.8. The matter of an appropriation for 1948 presents a different situation from that obtaining for the years following, as discussed above. Since, as indicated above, the three years statute of limitations applies and this suit was filed on July 23, 1951, this leaves for our consideration the period of time from July 23, 1948, to January 1, 1949. The record reflects that no appropriation by the Quorum Court for expenses of the County Judge as Ex-Officio Road Commissioner was made for 1948 either during that year or the year preceding. The record does reflect, however, that on November 19, 1951, after the filing of this suit, the Quorum Court met and made, or attempted to make, an appropriation for said purpose the amount of $600 for the year 1948 [and 1947].
It is the contention' of appellee that no appropriation of any kind was necessary in order for it to be legal for the County Judge to draw money from the County as Ex-Officio Commissioner. This contention is based on dubious authority. It is admitted that the case of Ladd v. Stubblefield, 195 Ark. 261, 11 S. W. 2d 555, holds that an appropriation is necessary, but appellee attempts to explain that the decision probably would have been different had the court known [or had called to its attention] that Johnson County was exempt from the provisions of Act 217 of 1917 [by later enactment]. Without speculating on what the court might have done in the cited case, we point out that in this case we are concerned with Act 97 of 1929 and not with said Act 217. The wording in § 2 of Act 97 convinces us that it was the intention of the Legislature that no money should be paid to the county judges as Ex-Officio Road Commissioners unless the quorum court first made an appropriation for that purpose. Having said this it follows that the attempted appropriation made by the quorum court of Greene County on November 19, 1951, was ineffectual to validate the expenditure of $600 in 1948 as expenses for the County Judge [as Ex-Officio Road Commissioner] in that year.
It does not follow from the above, however, that the Chancellor should have ordered the County Judge to reimburse the County for the amount he drew as Road Commissioner from July 23, 1948, to January 1, 1949, at the rate of $50 per month. If appellee actually spent his own money or incurred actual expenses in the discharge of his duties as road commissioner and Greene County received full benefit therefor, and if he can by detailed evidence establish these to be facts, he should be given credit therefor against the money he received from the County during the period of time in question. If such credits db not equal the amount of money drawn, he should, of course, be required to reimburse the County for the difference. Again we reach this conclusion under the authority in the Dowell case, supra.
Since the case was not developed on the above point, appellee should be given an opportunity to show, in the manner indicated above, to what extent he actually incurred expenses as Ex-Officio Road Commissioner from July 23, 1948, to January 1, 1949, and further show that such expenditure by the county did not cause the total expenditures for the year 1948 to exceed the revenues for the same year. The latter requirement is necessary under the provisions of Amendment 10 to the State Constitution which prohibits counties from spending in excess of their revenues. Since the adoption of Amendment 17 we have held that amendment must be strictly construed.
In view of what we have heretofore said, this cause is reversed and remanded to the trial court with the following instructions:
The trial court is instructed: (a) to enjoin the appellee from issuing and accepting warrants in payment for out-of-pocket cash items as heretofore referred to, and from drawing his salary in advance: and (b) to give appellee an opportunity to justify his acceptance of expenses as Ex-Officio Eoad Commissioner for part of the year 1948 as referred to previously. | [
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Riddick, J.,
(after stating the facts.) This is an action against a telegraph company to recover damages alleged to have been caused by negligence on the part of said company in transmitting and delivering a telegram. The plaintiffs claim that, by reason of the negligence of the defendant company in the matter of delivering said telegram, they lost the right to purchase a certain 200 head of cattle from one Langley. It is conceded that, the facts established make out a case of negligence against the telegraph company, and the only real controversy between the parties relates to the question of damages. The circuit judge, on motion of the defendant, instructed the jury that the plaintiffs under the facts could recover only the price paid for the telegram; and whether this was a correct ruling is the question we are asked to consider.
Now, the contract which plaintiffs claim to have made with Langley gave them an option to accept and purchase a lot of cattle owned by him at $12 per head, this option to expire at noon on the 14th day of May, 1895. If the telegram had been received in due time, and plaintiffs had accepted the offered purchase, they would at that time have owned the cattle, and would have paid out the contract price thereof. The telegram was delivered on said day, but not until 7 o’clock p. m., some hours after the time allowed for the acceptance of the contract had expired; so plaintiffs lost the right to purchase the cattle, but retained the money they had agreed to pay for the same. It is manifest, therefore, that plaintiffs were not injured unless on the 14th day of May, at the time the telegram was delivered, the market value of cattle of the grade purchased was at that place greater than the contract price, or, unless, on account of the scarcity of cattle, or for some other reason, plaintiffs could not, by the use of due diligence, after the delivery of the telegram, have purchased the like number and grade of cattle for the contract price. The law requires that a party should exercise due diligence to avoid injury to himself, and the measure of damages in such a case is the difference between the contract price of the cattle and that which plaintiffs would have been compelled to pay at the same place in order by due diligence, after delivery of the telegram or notice of the failure to deliver it, to purchase the same number and grade of cattle. It is a matter of no moment that some days subsequent to the delivery of the telegram there was a rise' in the market value of cattle, and that, if plaintiffs had purchased cattle at the contract price, they might have obtained profits from such rise in value; for the law does not permit the recovery of such uncertain and speculative damages. Squire v. Western Union Tel. Co., 98 Mass. 232; True v. International Tel. Co., 60 Me. 9; Hibbard v. Western Union Tel. Co., 33 Wis. 558; Western Union Tel. Co. v. Hall, 124 U. S. 444; Western Union Tel. Co. v. Fellner, 58 Ark. 29.
Applying the rule above stated to the facts of this case, it will be seen that plaintiffs did not prove more damages than they recovered; for they did not show what the market value of the cattle was on the 14th day of May, the time when their right of action was complete, but undertook to establish the value thereof on the 16th day of May, and afterwards. We need not discuss this question at length, for the evidence bearing on that point- was subject to another defect stilL more radical. No witness had seen the 200 head of cattle that Langley agreed to sell at $12 per head, or knew what their market value was. Fain, the only witness who testified concerning that matter, said that he saw about fifty head of the cattle. “I saw enough of the cattle,” he says, “to close the trade, provided all the cattle came up, which they did or would have done.” But this statement that the cattle “did or would have come up” to the grade required is pure guess work on the part of the witness, for he had not seen them. Having seen only a fourth of the cattle, he could not tell what the market value of the two hundred head was, either on the 14th of May, or at any other time, and could not show that plaintiffs were injured-by failing to purchase said cattle at the price named in the contract.
Not only is it true that the evidence fails to show that the market value of these cattle on the 14th day or May exceeded their contract price, but the conduct of plaintiff Fain indicates that he even was doubtful as to the matter. Plaintiffs do not, as we understand, claim that there was any sudden rise in the value of cattle between the time the telegram should have been delivered and the time when it was delivered, for those two periods were separated bnly by a short interval. They claim that they had secured on the 8 th day of May the right to purchase these cattle on or before noon of May 14th at $1-2 per head, and that this was a valuable right; that the value of cattle commenced to advance about the 1st day of May, and continued to rise for several months, and that these cattle on the 14th day of May, at the time the option to purchase expired, were worth much more than the contract price. But Fain was a member of the firm, and it is not denied that he had the authority to purchase cattle without consulting his absent partners. Indeed, he seems to have done most of the buying for the firm. This being so, it seems reasonable to believe that, if he had been fully convinced that the market value of the cattle was much greater than the contract price, he would not have suffered the option to expire, but would have closed the trade, although he had not received the telegram. Yet he declined to assume the responsibility and accept the offered sale. This indicates that he did not feel sure that the cattle were at that time worth more than the price named, but desired to purchase with a view to future profits. It indicates that he was not certain, at the time he permitted the option to expire, that there would be a profit.in such purchase, and desh’ed his partners to share the responsibility of making it. Afterwards, when the price of cattle rose, he saw the loss his firm had sustained by not male ing the purchase, and sued the telegraph company to recover damages. But it was not within the meaning of the contract made with the defendant company that it should in any event be liable for such uncertain and speculative damages, and they cannot be recovered.
Again, it is not certain that plaintiffs would have purchased the cattle, even had the telegram been delivered in due time. This is not a case where a plaintiff has telegraphed his agent to go in the market and purchase a certain number of cattle, and afterwards the price of cattle rises, and, by reason of a delay in delivering such message, the agent is compelled to pay a greater price than he would have paid had the message been promptly delivered. The purchase which plaintiffs say they lost here was the purchase of a certain lot of cattle. The contract with Langley giving them an option to purchase such cattle was not in writing, and nothing had been paid on it, and it is apparent from the evidence that it amounted only to an agreement that Langley would sell a certain 200 head of cattle owned by him at $12 per head, and that plaintiffs would take the cattle at that price if the absent partners approved the purchase, and if the cattle came up to a certain grade or standard. In other words, Langley did not agree absolutely to sell 200 head of cattle of a certain grade, but only that he would sell a certain 200 head of cattle owned by him, with an option on the part of Fain to reject the offer if his partners failed to approve, or if the cattle did not come up to a certain grade. The evidence shows that the other partners approved the purchase, but it does not show that the cattle offered by Langley came up to the grade required. It; is possible that plaintiffs could have established this fact by the testimony of Langley, or of some other witness who knew the condition of the cattle, but they did not do so. Fain, as# he states, “saw enough of the cattle to close the trade, provided all the cattle came up.” We understand from this that one of the conditions of the contract was that the cattle should come up to a certain grade, and that, before closing the trade and paying the purchase money, 'he would have ascertained that fact by an inspection of the cattle. He made no such inspection, and introduced no evidence to show the grade of the cattle, but asks a judgment against the defendant company upon the bare supposition entertained by him that such cattle would have come up to the grade required, and that he would have accepted the offered sale, had the telegram been delivered in due time. As he had seen only a small portion of the cattle, he not only could not know that the cattle would have come up to the grade required, but he did not even know that Langley owned such cattle. The allegation that plaintiffs would have purchased the cattle had the telegram been delivered in time rests therefore upon conjecture, and is not made sufficiently certain by the proof to sustain a' judgment for damages greater than recovered. Western Union Tel. Co. v. Fellner, 58 Ark. 29; Western Union Tel. Co v. Hall, 124 U. S. 444.
For the reasons stated, we conclude that the judgment o! the circuit court is right, and the same is affirmed. | [
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Grippin Smith, Chief Justice.
The litigation, necessitating a determination of controversial Act 242 of 1951, was begun when Ellis and Davidson filed an original proceeding in this court November 17, 1951, challenging sufficiency of the petition to refer. See Ellis v. Hall, Secretary of State, 219 Ark. 869, 245 S. W. 2d 223.
This is the first action reaching this court under Amendment No. 7 to the Constitution, involving a statewide petition, where nature of the issues and character of the proof reasonably necessary to an understanding of factual transactions clearly indicated from the inception that large expenditures for witness fees, court costs of a miscellaneous nature, compensation of a commis sioner should one be appointed, and items of like nature, would inevitably attach.
Unfortunately the probability of comprehensive litigation such as we have been dealing with did not occur to the General Assembly; or, if so, it did not make provision for the payment of costs. The inference deducible from Amendment No. 7 is that when counterpart petitions are filed with the Secretary of State containing in the aggregate names sufficient to set the State’s machinery in motion, the question at issue is a public one and may not be controlled by the persons primarily interested in initiating or referring a measure. It therefore seems logical that the cost of litigation is removed from the realm of private interest and becomes an obligation of the State; and, as we have seen, the policy-making department has not provided an appropriation to meet such necessary expenses.
Faced with this dilemma the court had no recourse but to require the plaintiffs to execute a cost bond. Its sufficiency is conceded, but the plaintiffs have at all times contended that expenses necessary to the defendant’s proof should not be taxed against the bond. The argument was not without persuasive phases and the court, when motions were made from time to time, was reluctant to enter a general order broad enough to permit the Attorney General as the State’s counsel to indiscriminately incur obligations that the plaintiffs’ bondsmen would have to pay, hence the trial did not proceed as expeditiously as would have been the case if unrestricted recourse to the bond had been authorized:
In an initial effort to minimize expenses, at least two members of the court voted that the judges sit in divisions or individually in relays as time permitted. The majority believed, and perhaps correctly, that routine appellate work would suffer if this method should be adopted. It was also pointed out that a constant shift in the presiding authority would interrupt continuity, since much that was heard would depend upon memory or written memoranda. The final consensus was that a commis sioner should be designated, invested with authority to conduct hearings, compel the attendance of witnesses, pass upon legal issues, and then report to the court. For this work Mr. Wayne Upton of the Little Rock bar was selected and it is a matter of gratification to the court that not a single complaint was made regarding his methods, nor have there been any informal suggestions that his official conduct has been other than that meeting the highest judicial test.
During the protracted period following announcement of procedural policy, numerous motions were filed directly with the court, and at times the Commissioner asked for directions. The subject-matter was sometimes thought by the judges to be of a nature not germane to the principal issue; or, if germane, of a kind that would be resolved without prejudice to either side if the litigants were permitted to proceed in the absence of specific detemination at that time. This course by the court may have prolonged the trial.
Before its summer adjournment July 7th an order was entered whereby the court could reconvene upon call of the Chief Justice during the recess period, but due to a misunderstanding (explained from the bench last Tuesday afternoon when the plaintiffs asked for judgment on the Commissioner’s findings) this meeting was not held.
Some of the responsibility for not having the interim session rests upon the writer of this opinion; none is attributable to the other judges. It is obvious, however, that the litigation could not have been completed in time for judgment before certification of the ballot if the court had met.
The Commissioner’s report, being tentative as to results and containing prima facie findings only, meant nothing more than that the evidence offered by plaintiffs showed the petition to be approximately 1,400 short of the required number of signers, provided the defendants could not reclaim an equal number from the more than 8,000 signatures prima facie invalid. When the plaintiffs rested June 19th the announcement was coupled with a statement that the right was reserved, “if necessary,” to take testimony out in the state, for [said the attorney] “We have about 3,800 names in addition to those that have been testified to here.”
The Commissioner’s report was filed September 29th.
Some of the members of the court believe that Beene v. Hutto, 192 Ark. 848, 96 S. W. 2d 485, is authority to enter an order at any time before the election finding that a measure to be voted upon is not properly on the ballot, hence a certificate by election commissioners that the measure had been adopted would be nugatory. In view of our conclusion that the issues cannot be determined before the election November 4th, it is not necessary to construe the Amendment or Judge Mehaffy’s opinion in the Beene case.
The result is that we are unwilling for a public matter to be withheld from the electorate on a prima facie showing alone, and since the remaining time is insufficient for completion of the proof the injunction is denied and the cause dismissed.
Mr. Upton is authorized to collect under the bond such sums as may be necessary to pay costs. The Commissioner’s fee, being a similar charge, will be fixed by the court if the parties are unable to reach an agreement. | [
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Hughes, J.
This is an appeal from a judgment for appellee in the sum of five thousand dollars against the appellants. The case was appealed ¡once before, and was reversed and remanded for a new trial. The opinion is reported in 60 Ark.428.
The appellee was a locomotive engineer in the employment of appellant, and was injured by the derailment of the engine caused by striking a horse. He alleged in his complaint that his injury was caused by the negligence of the appellants in furnishing him with a locomotive the pilot of which was raised so high above the track that the locomotive was dangerous to operate. This was held, on the first consideration here, to be a patent defect, to observe which the appellee was required by law to use ordinary care.
On the first trial, the circuit court, at the request of the appellee, gave the jury the following instruction numbered two (2): “The plaintiff had the right to presume that the engine furnished by the defendant was in good condition, and he was not required to inspect the same for defects; and if the jury find from the evidence that, during the course of the trip, he discovered that, owing to the use of an improper spring under the locomotive, the same had become more dangerous, then, by remaining in the performance of his duties, he did not assume the increased risk occasioned, by such defect, unless the ’jury believe from the evidence that the increased risk was so haz ardous that a reasonably prudent man, situated as the plaintiff was, would not have continued in the performance of his duties.” This court held on the first appeal that the first part of this instruction was erroneous, in that it in effect told the jury that the plaintiff was not required to take notice of obvious defects; while the law required that he should have used his eyes, and have made such inspection as ordinary care requires of one whose duty it is to take notice of obvious defects. It is, of course, well settled that'plaintiff was bound to use ordinary care to observe patent defects in machinery he was operating, and if he failed to do so, and was injured by an accident resulting from such defects, he cannot recover damages for his injury, for he assumed the risk. (See authorities cited in Fordyce v. Edwards, 60 Ark. 442.)
On the second trial of this cause, the circuit court gave this same instruction, numbered 2, with an amendment to make it read that the plaintiff was not required to inspect the engine for latent defects. This interpolation of the word “latent” before the word “defects” was clearly erroneous, because the court had decided that the defect complained of was patent, and there was no question of a latent defect in the case. It might be argued that other instructions given cured this error; but] while there are others that militate against the idea couched in this one, we yet think it was erroneous, and calculated to confuse and mislead the jury, and for this cause, if there were no other errors, the cause should be reversed. But this instruction is clearly obnoxious to further objection.
The second instruction told the jury that “if the jury find from the evidence that, during the course of the trip, he discovered that, owing to the use of an improper spring under the locomotive, the same had become dangerous, then, by remaining in the performance of his duties, he did not assume the increased risk occasioned by such defect, unless the jury believe from the evidence that the increased risk was so hazardous that a reasonably prudent man, situated as the plaintiff was, would not have continued in the performance of his duties. ” This leaves out of consideration the question whether the appellee used ordinary care to discovor the defect complained of, before starting on his trip, and authorizes them to find for the plaintiff if he discovered the defect after he had started on his trip, provided the danger therefrom was not so great as that a reasonably prudent man, situated as the plaintiff was, would not have continued in the performance of his duties; and this, notwithstanding there was a patent defect which the plaintiff ought to have discovered before starting on his trip, and which was the same he says he discovered only a short time before the accident which occasioned the injury complained of. The defect was patent, and he, under ordinary circumstances, ought to have discovered it before starting on his trip; and, if he did not, he assumed the risk incident to the operation of the engine in that condition, and the fact that he discovered it afterwards would not alter the case. This second instruction was the basis for the third, fourth and fifth for plaintiff. It is easy to see how this might have misled the jury.
In the third, fourth and fifth instructions given at the request of the defendant the court correctly charged the law as to the duty of the plaintiff to use ordinary care to discover this patent defect. But these did not explain or cure the error in the second instruction to which we have adverted.
In the trial the plaintiff introduced, over the objection of the defendant,' to which he excepted, evidence to show that the reason why he could not discover the defect complained of was that, at the time he took charge of the engine, it was standing in a depression in the track of the railway, so that the defect would not appear to one using ordinary care in inspecting the engine. The defendants’ objection to this evidence was that no allegation was made in the complaint as to this depression, and none that the plaintiff was prevented by it from discovering the defect by the use of ordinary care. As this cause must be reversed, and the plaintiff may amend his complaint in this behalf, we express no opinion as to this. The opinions of witnesses as to what a prudent man would have done under the circumstances were 'not admissible.
. The court, in the sixth instruction given at the instance of the plaintiff, said: “If the jury find from the evidence that, at the time plaintiff took charge of the engine to make the trip on February 5, 1891, the engine was standing in a depression upon the track, then it is a question of fact for the jury to determine whether this would have prevented him, by the exercise of ordinary care and diligence, from discovering the condition of the pilot at that time.” This was held in Fordyce v. Edwards, 60 Ark. 442, to be a question of fact for the jury.
For the errors indicated, the judgment is reversed, and the cause is remanded for a new trial. | [
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Hughes, J.
The appellant was indicted by the grand jury of Monroe county for assault with intent to kill, committed, as the indictment alleges, on the first day of September, 1888, upon J. W. B. Robinson, who at the time was the sheriff of the county, and was attempting, as some of the testimony tends to show, to arrest the appellant, who was engaged in a fight.
The appellant contends that the indictment was insufficient because it did not charge that the assault was committed with premeditation. The indictment alleges that the assault was made unlawfully, feloniously, wilfully, and with malice aforethought. This is the language of the statute, and is sufficient.
The appellant also contends that the case against him ought to have been dismissed, because a former prosecuting attorney, upon the recommendation of the grand jury that it with other eases ought to be dismissed, had agreed to dismiss it. Of course, there is nothing in this contention.
Appellant also moved the court to dismiss the prosecution against him for the reason that he was not brought to trial within three terms of the court in which he was indicted. This motion was made under section 2161 of Sandels & Hill’s Digest, which is as follows: “If any person indicted for any offense, and held to bail, shall not be brought to trial before the end of the third term of the court in which the indictment is pending, which shall be held after the finding of such indictment and holding to bail thereon, he shall be discharged, so far as relates to said offense, unless the delay happen on his application.”
The cause, on application of appellant, had been removed from Monroe to Prairie county, where it was tried. When it was called for trial in Prairie county, evidence was heard upon this motion, and it appears that there was no order of record in said cause at the Mai-ch or September term, 1894, March or September term, 1895, March or September term, 1896, or March term, 1897; thus showing that seven terms of the court had passed without any steps having been taken in the case. But it appeared in evidence that the former prosecuting attorney, in consequence of the agreement above, had told the appellant not to appear in court again, that his case would be dismissed, and that, relying thereon, the defendant (appellee) had not been at the court since 1892, until the term at which he was tried, being the September term, 1897, at which term he was notified to appear. So it appears that the appellant was consenting to or acquiescing in the delay, and made no„ demand for a trial or disposition of the case against him.
In the case of Stewart v. State, 23 Ark. 720, where this statute is considered, discussed and construed, the opinion was delivered by Mr. Chief Justice Watkins, with his usual clearness and ability, and the conclusion was reached that “the spü’it of the law is that, for a prisoner to be entitled to his discharge for want of prosecution, he must have placed himself on the record in the attitude of demanding a trial, or at least of resisting postponements.” Said the learned Chief Justice: “We cannot shut our eyes to the fact, known to all who are acquainted with the administration of justice, that where the crime is of magnitude, delays diminish the chances of conviction, and with that hope are usually sought or acquiesced in by •the accused.” We think the case of Stewart v. State, supra, is conclusive upon the question under consideration here, and so adjudge. There was no error in refusing to dismiss the cause on motion of the defendant.
The defendant (appellant) was arraigned, and pleaded “Not guilty,” before the change of venue from Monroe to Prairie county. The Hon. James S. Thomas, judge of that court, being disqualified to try the ease, the Hon. T. C. Trimble was elected' special judge to try the same. The regular judge opened the court at the term when the trial was had, and the Hon. T. O. Trimble, special judge, sitting to hear the case, on the 8th day of October, 1897, adjourned the court to October 25, 1897. The appellant, by leave of the court, withdrew his plea of not guilty, and filed his plea to the jurisdiction of the court, on the ground that the special judge had no power to convene the adjourned session of the court. The next term of court in that circuit did not begin until November, so the adjournment did not interfere with any other term of court, and was ordered by the special judge elected on account of the disqualification of the regular judge, who had opened the term. The record is silent as to the presence or absence of the regular judge on the 25th of October, when the adjourned session was convened. But if he was absent, the special judge had the power to open the court and try the cause. Having been elected to try this ease, he was the judge of the court for that purpose, and had the same power and authority in that case that the regular judge would have had, had he not been disqualified, and had he been trying the case. But when the term ends, the authority of a special judge ceases. Const. of Ark. art. 7, § 21; Fishback v. Weaver, 34 Ark. 569.
There was no error in excluding from the jury the testi*mony of D. B. Renfro, Willis Parks, J. W. Walker and R. N. West, because there is no evidence tending to show the connection of J. W. B. Robinson with the matters testified to by them'. The testimony of these witnesses tended to show that threats had been made previous to the fight by one Pope Montgomery, and that Walls, who was killed in the fight, had previously had the pistol of Parks, and refused to give it up, saying that he would have a use for it on Saturday, the day of the riot.
Dr. R. M. West was introduced as an expert to testify as to the size of the ball with which J. W. B. Robinson was shot, and gave his opinion that he was not shot with a 44 caliber ball, but stated that he could not say certainly. The court excluded this testimony. It is our opinion that if this evidence was material, it ought to have been admitted. But what difference could it make, in a prosecution for assault with intent to kill, whether the party assaulted was hit or not, if the evidence showed the assault with the intent to kill? There was positive testimony that J. W. B. Robinson was shot at with a pistol three times, and was shot down the last time, by the appellant, though there is some confusion and conflict of testimony on this last shooting. The defendant would be equally guilty if he made the assault with intent to kill by shooting at the party assaulted, whether he hit him or' did not hit him. “An assault is an unlawful attempt coupled with present ability to commit a violent injury upon the person of another.” Sandels & Hill’s Digest, § 1472. There was no error, prejudicial to the defendant, in excluding the testimony.
We come to consider the only remaining question in the case. Is the evidence sufficient to sustain the verdict of guilty of assault with intent to kill? Before the jury could have properly found this verdict, they must have found, from the evidence in the case, that, had death ensued from the assault made by the appellant upon Robinson, the appellant would have been guilty of murder. Lacefield v. State, 34 Ark. 275.
“Section 1639 (Sand. & IT. Dig.) Murder is the unlawful killing of a human being, in the peace of the state, with malice aforethought, either express or implied.”
“See. 1641. Express malice is that deliberate intention of mind unlawfully to take away the life of a human being which is manifested by external circumstances capable of proof.”
“Sec. 1642. Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing manifest an abandoned and wicked disposition.”
The evidence in this ease shows that on Saturday, the 1st of September, 1888, there was a political meeting at the town of Clarendon, in Monroe county, where the alleged offense is said to have been committed. Excitement was at white heat between the adherents of two opposing candidates for sheriff of the county. The appellant was the warm supporter of Capt. J. W. Walker, one of the candidates. J. W. B. Robinson was the other candidate. A general riot occurred between the adherents of these two candidates, in which the appellant took part. In the fight which occurred between him and others, he shot and killed Walls, and was himself shot twice, cut eight times with a knife, and otherwise beaten and bruised. While he was engaged actively in this fight, and about the time he was shooting at Walls, J. W. B. Robinson, the sheriff, rushed up and pushed himself into the crowd, called on Dillard to halt, and surrender, three or four times, according to Robinson's testimony. Robinson says: “He simply looked at me. I then pulled my pistol, but the trigger was hung fast, and would not fire. * * * I threw the pistol on him, ran on him, and thought I would try to bluff him. * * * Instead of running, he fired at my breast. I then wheeled to make my escape from him. About the time I reached the alley, he fired at me again, and struck my shoe .heel. As I ran down the alley, some forty or fifty yards, he fired at me again, and struck me just below the hip bone. * * * When the defendant shot me, I was running from him.”
There is testimony in the case tending to show that Robinson, when he rushed on Dillard, fired at him; and Dillard, in his testimony, says that Robinson shot him. There is also testimony tending to show that when Robinson fell in the alley he had his pistol in his hand. There is testimony tending to show that, as Robinson and Dillard ran into the alley, several shots were fired up the alley, and that when Dillard emerged from the alley his face was quite bloody; and he says that he was sick and dazed when he went into the alley; says that when Robinson shot him, finding Robinson was not going to stop, he fired; that he was very sick, and could not remember what he did after that.
There seems, from the evidence, to have been a general fight; Dillard being the object of most of the assaults made with clubs, knives and pistols, many of which took effect upon him, as the evidence shows there were many bruises upon his body, eight knife wounds, and two wounds from pistol shots. It was a full-grown riot, of large proportions and fatal consequences. We are of the opinion that the evidence clearly shows that, in pursuing and shooting at Robinson, Dillard was acting under the influence of passion and excitement, caused by provocation apparently sufficient to make the passion irresistible, and that if his shooting at Robinson had resulted in Robinson’s death, he would not have been guilty of murder, but of manslaughter only, aud that therefore he is not guilty of assault with intent to kill. “While it is true that every person is presumed to contemplate the ordinary and natural consequences of his acts, such presumption does, notarise where the act fails of effect, or is attended by no consequences; and where such act is charged to have been done with a specific intent, such intent must be proved, and not presumed from the act.” Lacefield v. State, 34 Ark. 280.
For the want of evidence to sustain the verdict, the judgment is reversed, and the cause is remanded for a new trial. | [
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Hughes, J.,
(after stating the facts.) Was Herren, the senior mortgagee and purchaser of the equity of redemption from Jones, the mortgagor, accountable for the rents while in possession?
It is well settled that a mortgagee in possession is accountable for rents. But was Herren in possession as a mortgagee? He had bought at the sale under his foreclosure of his mortgage, and had also bought Jones’ equity of redemption. If he held under his foreclosure sale only, it may be that he would be accountable for rents, but when he holds as a purchaser, and not as mortgagee, he stands, as to his possession, as the mortgagor would, if in possession. Ten Eyck v. Casad, 15 Ia. 524. It seems clear that the mortgagor, if in possession, would not be accountable for rents. “If one who is a prior mortgagee afterwards acquires the equity of redemption, subject to a second mortgage, and then takes possession, he is not regarded as a mortgagee in posssession, and as such accountable for the rents and profits to the junior mortgagee.” Rogers v. Herren, 92 Ill. 583; Gray v. Nelson, 41 N. W. Rep. 567 (77 Ia. 63.)
“A junior mortgagee redeeming from a senior mortgagee who has been in possession may compel an accounting. His right does not rest on any obligation of the senior mortgagee to him, for there is no contract between them, but upon the fact that the senior mortgagee is under obligation to account to the mortgagor, and the junior mortgagee in equity stands in the place of the mortgagor.” The junior mortgagee has no right, therefore, to ■ compel an. accounting when the mortgagor has no such right; for it is through the mortgagor, and the equity existing between him and the senior mortgagee, that he is entitled to compel an application of the rents and profits to the satisfaction of the senior mortgage. For these reasons, it is well settled that, in order to charge the mortgagee .with rents and profits, it must be shown that he has occupied the mortgaged premises under his mortgage. If the title of the mortgagor has been divested, and the mortgagee has been in possession under a title derived from the mortgagor, he is not chargeable with the rents and profits of the mortgaged premises.” 2 Jones, Mortgages, § 1118a. Gaskell v. Viquesney, 122 Ind. 244; 23 N. E. 791, and cases cited.
The judgment of the circuit court is affirmed. | [
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J. Seaborn Holt, J.
October 29, 1951, appellant was found guilty in the Municipal Court of the City of Fort Smith, of illegally possessing intoxicating liquors for sale, and on appeal to the Circuit Court was found guilty by a jury April 22, 1952, and her punishment fixed at a term of six months in jail with recommendation that sentence be suspended pending good behavior. The trial court followed the jury’s, request.
It appears that on March 7, 1952, prior to the date of the suspended sentence, on petition of the Prosecuting Attorney, it was found by the Circuit Court that appellant’s residence was being used in the sale of intoxicating liquors in violation of § 34-101, Ark. Stats. 1947, declared said premises a nuisance, and issued a restraining order against appellant (and her husband) from “conducting, maintaining, carrying on or engaging in the sale of intoxicating liquors at or upon the hereto fore described property, which is their dwelling, bnt permitted the defendants to reside upon the premises.”
It further appears undisputed that on July 10, 1952, subsequent to the date of appellant’s suspended sentence (April 22, 1952) and the date injunction was issued (March 7, 1952) appellant was convicted in the Municipal Court of possessing intoxicating liquors for sale on the same premises to which the injunction above applied.
July 15, 1952, trial was had in the Circuit Court on petition of the Prosecuting Attorney alleging, in effect, that appellant had violated the above injunctive order of March 7, 1952, and praying that she be required to show cause why she should not be judged in contempt and her suspended sentence above revoked. After a hearing, appellant appearing without counsel, the court found appellant guilty of contempt, that she had violated the injunctive order and “that the behavior of the defendant was of such a nature that the heretofore suspended sentence granted in the above mentioned cause is hereby ordered to be set aside; that said dwelling is being used as a place of business and the operation of the same is a nuisance; that the front door on said dwelling shall be nailed, securely closed and barred and that ingress and egress is prohibited through same and that the Sheriff take the proper procedure to carry out said order; that the defendant’s heretofore suspended sentence of six (6) months is set aside and she be committed to the Sebastian County jail, Fort Smith, Arkansas, until further order of this Court, or until said sentence has been served.”
For reversal, appellant contends “that the evidence was insufficient to hold her in contempt of court, and that the court abused its discretion in revoking her suspended sentence.”
We do not agree. We find the evidence ample to support the court’s findings that the injunction had been violated, that the suspended sentence should be revoked, and the judgment that followed.
In addition to the undisputed proof that appellant violated the injunctive order of March 7th when she was convicted July 10, 1952, of possessing illegally intoxicating liquors for the purpose of sale, there was other evidence that subsequent to the date of the injunction a large number of automobiles, including taxicabs, came and went from appellant’s premises at practically all hours; that twelve or fifteen ears would come and go within an hour, some staying for some ten or fifteen minutes, and others going in and leaving almost immediately. One of these cars which left appellant’s house contained twelve cold cans of beer and a pint and a half of liquor and another six cans of beer and two half pints of liquor.
On June 29, 1952, on search of appellant’s house, the officers found a five gallon can with ice and cans of beer, sitting in a back room. Beer was also found in a deep freeze, and altogether forty-nine cans of beer and one-half pint of whiskey were found in-appellant’s house. Four or five people were in the house at the time drunk and were later convicted in the Municipal Court. There was also testimony that appellant’s place had a reputation of a “bootleg joint.”
Without detailing more of the testimony, we conclude that the trial court by its action did not abuse the discretion accorded it in matters of this nature.
In the case of Calloway v. State, 201 Ark. 542, 145 S. W. 2d 353, there was involved, as here, the power of the Circuit Court to revoke a previous suspended sentence and order execution of the full sentence (% 43-2324, Arkansas Stats. 1947). We there said: “ ‘The behavior of the defendant is a question of law to be passed on by the court, and the exercise of its discretion in this manner cannot be reviewed in the absence of gross abuse.
“In a very recent case, Spears v. State, 194 Ark. 836, 109 S. W. 2d 926, which dealt with the power of the circuit court under the provisions of § 4054 of Pope’s Digest, we said: ‘The next two grounds urged for a reversal may be considered together as they both challenge the sufficiency of the evidence to sustain the order of revocation. This is a matter coming within the sound discretion of the trial court. Denham v. State, 180 Ark. 382, 21 S. W. 2d 608. Of course, such discretion could not he arbitrarily exercised without any basis in fact, but the statute itself confers the authority to revoke the suspension of sentence “whenever that course shall be deemed for the best interests of society and such convicted person”.’ ”
Next appellant contends that she did not have proper notice of the “petition which sought a revocation of the suspended sentence.” This contention is untenable for the reason that it appears that appellant was fully apprised of the hearing and its nature. She was present, acting as her own counsel, and made no objection. She was asked by the Court if she were ready for trial and she replied that she was. The record recites: “Defendant, Mary Bodner, appearing in person, without counsel, and all announced ready for trial after the court interrogated the defendant, Mary Bodner, as to whether or not she insisted on counsel representing her, to which she answered that she was ready for trial.” The Prosecuting Attorney then stated to the Court that he was seeking a revocation of the suspended sentence and the padlocking of her home. “As I understand it, you are asking for this restraining order to be made permanent and also to consider the suspension, to revoke the suspension that was given her in reference to that city case? Mr. Gutensohn: That’s right. The Court: Now Mary, are you ready to proceed on those questions? Mrs. Bodner: What do you mean ? The Court: Are you ready to have a hearing on it now? Mrs. Bodner: Yes, sir, I guess so.”
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G-eorge Eose Smith, J.
This "is a suit in -ejectment brought bji the appellee railroad company to recover a 1.32-acre tract of land that was formerly occupied by the company’s tracks. The railroad line was abandoned in 1951, and the trackage was removed. It is contended by the appellants, the abutting landowners, that the railroad company had a mere easement in the property and that the right of possession reverted to the landowners when the railroad was abandoned. The company contends that it owned not an easement but the fee simple. The circuit court, trying the case on an agreed statement of fact, upheld the railway’s position.
The sole issue is whether a deed that was executed to this company’s predecessor in 1907 conveyed an easement or the fee. This is the relevant language of the deed:
“In consideration of the sum of five dollars . . . and of the benefits to accrue to us from the construction of the Missouri & North Arkansas Eailroad, we do hereby grant, bargain, sell and convey unto the Missouri & North Arkansas Eailroad Company, and unto its successors and assigns forever, a strip of land 100 feet in width for a right of way, over and upon the following described [160 acres], said strip of land being fifty feet in width on each side of the center of the main track of said railroad as the same is now, or may hereafter be, located and constructed on and across said tract of land, with the right to change watercourses, and to take stone, gravel and timber, and to borrow earth on said right of way for the construction and maintenance of said railroad.” The deed contains neither a habendum nor a warranty clause.
The appellee’s contention that the deed conveyed the fee simple depends largely upon the fact that the property was described as “a strip of land.” It is insisted that these words show that the grantors intended to convey the land itself rather than an easement therein. Beliance is also placed on Ark. Stats. 1947, § 50-403, which provides that words of inheritance are not necessary in the creation of a fee simple and that all deeds shall be construed to convey the fee, “unless expressly limited by appropriate words.”
We do not find this argument convincing. The deed refers not simply to a strip of land; it specifies “a strip of land 100 feet in width for a right of way.” We realize that when the grantor unequivocally conveys the fee his designation of the property’s intended use should be regarded as surplusage; but when the grantor’s intention is itself subject to question then the fact that he attempts to restrict the future use of the property becomes a factor in the interpretation of his deed. We have no decisions in Arkansas that bear closely upon the case at bar; in other jurisdictions the authorities are pretty evenly divided. Probably the majority view, and in any event the view that we consider preferable, holds that a conveyance such as this one creates an easement only. The fullest discussion is contained in Magnolia Petroleum Co. v. Thompson, 8th Cir., 106 F. 2d 217, reversed on other grounds, 309 U. S. 478, 60 S. Ct. 628, 84 L. Ed. 876. There the court analyzed the question in great detail and considered some forty decisions in arriving at the conclusion that a deed similar to this one creates an ease ment. Among many cases to the same effect are Sherman v. Petroleum Exploration, 280 Ky. 105, 132 S. W. 2d 768, 132 A. L. R. 137, and State ex rel. State Highway Com’n v. Griffith, 342 Mo. 229, 114 S. W. 2d 976.
In this case, however, we do not have to rely solely upon the circumstance that the grantors conveyed the land “for a right of way.” Apart from this expression the deed bristles with indications that an easement alone was intended. The recited consideration reflects that the grantors accepted a nominal sum for the deed because they were interested not in selling land but in assisting the company to complete its line. As the court remarked in the Thompson case, supra, “This language makes it perfectly clear that the parties met for the sole purpose of contracting for a railroad, right of way.” For that purpose an easement was equally as effective as the fee.
The shape of the tract — a 100-foot strip across a quarter section — is peculiarly suited to railway purposes and to little else. This, too, was mentioned in the Thompson opinion: ‘ ‘ Obviously the railroad company was inter 7 ested at that time in no other use of the land else it would assuredly have acquired more than a strip of land 60 feet wide.” Again, the form of the deed, without habendum or warranty, is not that usually and customarily employed to transfer absolute title.
Finally, the grantee is expressly given the right “to take stone, gravel and timber, and to borrow earth on said right of way for the construction and maintenance of said railroad.” The appellee forcibly argues that this language adds nothing to the deed, since even when the railroad company has a mere easement there is an implied right to use stone, gravel, and earth for purposes germane to the easement. This may be true, but still the language is in the instrument and cannot be ignored in determining the intention of the parties. If a fee simple had been intended it would have been unusual, it would have been almost absurd, to take the precaution of assuring the grantee that it could take its own stone and gravel and borrow its own earth. Yet if an easement were meant the insertion of this language might well be considered a sensible precaution against future controversy.
Construing this somewhat ambiguous deed as a whole we are convinced that the parties had primarily in mind the matter of providing a right of way for railway purposes only. Nearly all the language chosen points to the creation of a servitude and negatives the notion that a fee was intended. The appellee candidly admits that even the language it relies upon, “a strip of land 100 feet in width for a right of way,” would unquestionably have created an easement had the words been transposed to read, “a right of way upon a strip of land 100 feet in width.” When we take into account the other recitals in the instrument we have no doubt that this is the legal effect of the language actually selected.
Reversed. | [
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Wood, J.,
(after stating the facts). Judge Dillon says: “The coercion or duress which will render a payment of taxes involuntary must in general consist of some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment, over the person or property of another, from which the latter has no other means, or reasonable means, of immediate relief, except by making payment.” 2 Dillon, Mun. Corp. § 943. Again he says: “Money voluntarily paid to a corporation under a claim of right, without fraud or imposition, for an illegal tax, license, or fine, cannot, without statutory aid — there being no coercion, no ignorance or mistake of facts, but only ignorance or mistake of the law — be recovered back from the corporation, either at law or in equity, even though such tax, license fee, or fine could not have been legally demanded and enforced.” Id. § 944.
Judge Cooley enumerates, as one of the conditions upon which illegal and void taxes paid to a municipal corporation may be recovered, the following: “It must have been paid under compulsion, or the legal equivalent.” Cooley, Tax. p. 805. And he defines a compulsory payment as follows: “A payment made to relieve the person from arrest, * * * or to prevent a seizure when it is threatened.” Id. p. 84. The principles here announced were approved by this court in Town of Magnolia v. Sharman, 46 Ark. 358. It will be seen, by applying these principles to the facts as found by the court in the present case, that the court erred in its declaration of law, and in refusing to declare the law as asked by appellant. We are of the opinion that the payments made by appellees, under the facts stated, cannot be construed otherwise than as voluntary payments. See First Nat. Bank of Americas v. Mayor, etc., 68 Ga. 119, and numerous cases cited in brief of appellants.
Reversed and remanded for new trial. | [
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Minor W. Millwee, Justice.
Appellants brought this suit to partition an 80-aere tract of land and for an accounting of the sale proceeds of timber cut from the land by appellee, Ozan Lumber Co. Appellants claimed ownership of an undivided 3/9 interest in the land as heirs of Amaziah Wilson, deceased. Appellee, Ozan Lumber Co. defended on the grounds that appellants were barred of recovery by limitations and laches and asked that its title be quieted. Trial resulted in a decree in favor of appellee in which the chancellor held that appellants were barred by laches.
Amaziah Wilson was the owner of the 80-acre tract
at the time of his death, intestate, in 1900. He was survived by his widow who died in 1927 and by nine children. Appellants are the children of three of these nine children. Tennie Ivory, daughter of Amaziah Wilson, lived near the land and looked after it following the death of her parents. The land forfeited for the 1920 taxes and J. A. Carr obtained a clerk’s tax deed in 1923. In December, 1925, Carr executed to Tennie Ivory a quit claim deed which was recorded in January, 1926. In August, 1926, Carr executed a quit claim deed to the timber on the land to Tennie Ivory. In the same month Tennie Ivory executed a deed conveying all pine timber on the land to Louisiana Pulp & Paper Co. and this deed was recorded in September, 1926. In July, 1926, she also executed a deed of one-half the minerals to A. D. Madding.
On December 1, 1928, four of the nine children of Amaziah Wilson, who were all the original nine children then living except Tennie, executed a quit claim deed conveying the land to Tennie Ivory and this deed was filed for record January 1, 1929. According to the testimony of Tennie Ivory she then executed a mortgage to W. P. Adams to secure money with which to defray expenses of her husband’s illness. She denied her signature to a $300 note dated February 26, 1929, payable to Adams and reciting that it was secured by a deed of trust on the lands in controversy. Neither the note nor a deed of trust was introduced in evidence. Although Tennie Ivory admitted that she executed a mortgage to Adams, she stated that she repaid the loan and denied her signature to a warranty deed executed and filed for record January 5, 1935,.conveying the whole title to Adams and reciting a consideration of $300.
On May 1, 1941, W. P. Adams executed a warranty deed conveying 794 acres of land to Thomas Brothers, a partnership, and the 80-acre tract in controversy was included in the deed. Adams died March 1, 1942. On June 10, 1947, Thomas Brothers conveyed the 80 acres to appellee, Ozan Lumber Co., by warranty deed which was filed for record June 14, 1947. This deed included a total of 5,034 acres at a recited consideration of $277,-500, or an average price of approximately $54 per acre.
Adams paid taxes on the tract for the years 1935 to 1939. Thomas Brothers paid for the years 1940 to 1946 and appellee for the years 1947 to 1950. The lands in controversy are in timber and except for one small strip have been unoccupied and unenclosed for more than forty years. The tract is located one-half mile from a road and adjacent to land owned and resided upon by Johnnie Milton who testified that he cultivated and fenced about two acres of the land in controversy in 1947 when appellee cut some timber on the tract. According to Milton this cultivation was under an agreement with appellant, Richard G-riffen, that Milton would look after the timber on the entire tract in lieu of payment of rent. Appellee made no complaint to Milton about cultivation of the strip when it cut some timber from the 80-acre tract in the fall of 1947. The county surveyor testified that the cultivated strip contained about three or four acres.
Richard Griffen and some of the other appellants ■ live about 17 miles from the 80-acre tract. He testified that he thought Tennie Ivory was looking after the land for all the heirs; that he had been over the land several times in recent years, but had not talked to Tennie Ivory about tax payments for “a good while”. He also stated that he discussed the ownership of the lands with Adams and did not know about Thomas Brothers buying the land or cutting timber on it in 1943, but knew of the purchase by appellee before it cut some timber from the lands in 1947. Other witnesses who resided in the vicinity did not know of the timber cutting by Thomas Brothers in 1943.
The testimony of Tennie Ivory is rather confusing. She stated that she looked after the lands for all the heirs; denied that the deed from Carr in 1925 was made to her alone; and had no recollection of executing the timber and mineral deeds in 1926. She further testified that Adams had some patches- worked on the 80-acre tract “after he got the land”. She also stated that she learned of the deed to Thomas Brothers shortly after Adam’s death in 1942 when she talked with the Thomases about the sale and also told the other heirs about it. While she was negotiating with Thomas Brothers, the latter sold the land to appellee.
Nathan Thomas testified that the partnership cut several thousand feet of timber from the land in 1943 and he did not learn that they did not have full record title to the lands until 1947. At that time he was advised by counsel for appellee that there were outstanding heirs to the property. Before the sale, and in an effort to cure the record title, he then talked with Tennie Ivory who told him that she did not have a deed from all the heirs when she acquired the interest of some of them in 1928. His testimony was corroborated by that of his brother and it would seem that the negotiations had by the partnership with Tennie Ivory with reference to the interest of the other heirs were in 1947 rather than in 1942 as she testified.
Appellee, Ozan Lumber Co., cut and removed about 10,000 feet of timber from the land in 1947 and had cut about 60,000 feet in 1949 when this suit was instituted. Appellee knew that the record title showed there were outstanding heirs to the land when they purchased in 1947. The timbered 80-acre tract had a value of approximately $200 in 1935, $1,000 in 1941, $7,500' in 1947, and $10,000 in 1949 when the suit was instituted. The evidence as to values is to the effect that the price paid for the land by appellee in 1947 represented less than 2/3 of its actual value at that time.
Although the chancellor found that appellants were barred by laches from claiming any interest in the lands, appellee earnestly insists that appellants were also barred by the seven-year statute of limitations (Ark. Stats., § 37-101) when that statute is construed in connection with Ark. Stats. § 37-102 and the payment of taxes for more than seven years by appellee and its predecessors in title. Appellee relies on the cases of McGill v. Adams, 120 Ark. 249, 179 S. W. 489; Smith v. Boynton Land & Lumber Co., 131 Ark. 22, 198 S. W. 107; and Patterson v. Miller, 154 Ark. 124, 241 S. W. 875. It is true that in these cases the court held that seven years payment of taxes. on wild and unimproved land under color of title is equivalent to actual possession, but the rights of cotenants were not involved in these cases.
When Tennie Ivory acquired the interests of her four brothers and sisters in 1928, she became the owner of an undivided 5/9 interest in the land. When she conveyed to W. P. Adams in 1935, the latter became a cotenant with the appellants who owned an undivided 3/9 interest in the land. The 1935 deed, though recorded, was not in appellants’ line of title and did not, therefore, constitute constructive notice to them. This court so held in Singer v. Naron, 99 Ark. 446,138 S. W. 958. The rule is well settled that where one or more cotenants convey the entire fee to a stranger the conveyance gives color of title, and if possession is taken, and the grantee claims title to the whole, it amounts to an ouster of the cotenants and the possession of the grantee is adverse to them. Parsons v. Sharpe, 102 Ark. 611, 145 S. W. 537; Bowers v. Rightsell, 173 Ark. 788, 294 S. W. 21. Appellee concedes that the rule announced in these cases is not directly applicable here since there has been no actual possession of the lands in controversy by any of the parties for many years. But it is insisted that the deed from Tennie Ivory to Adams in 1935 conveying the whole title was an act of ouster and that the payment of taxes thereunder for seven years ripened into title under § 37-102, supra.
Both parties rely on Brasher v. Taylor, 109 Ark. 281, 159 S. W. 1120. In that case the circuit court held that an action of ejectment could not be maintained by the plaintiff cotenants where the defendants were not in actual possession of the lands which were wild and unenclosed. This court reversed and held that payment of taxes for seven years under the statute was equivalent to possession and that actual possession was, therefore, no longer an indispensable prerequisite to the right to bring an ejectment action. There the -defendants and their predecessors in title had paid taxes on the lands for 37 years during which time the lands had sold at an execution sale and there had been several conveyances beginning with that of the grantee under the execution deed. The court said: “There is nothing in the record to show that the plaintiffs had actual knowledge that T. J. Brasher'had conveyed the entire tract of land to the defendants or their predecessors in title. The fact that the plaintiffs never paid any taxes on the land and made no efforts whatever to assert their title to the land during the long period of time that the taxes were paid by the defendants and their grantors raises a strong presumption that they recognized the claim of title of the defendants and their grantors as superior to their own, or, at least, that they had abandoned any claim of their own to the land, but this is a presumption of fact and does not become a conclusive presumption of law.”
While it is true that in the Brasher case the court held that payments of taxes for seven years under color of title constituted such possession as would authorize an action in ejectment, it did not hold that defendants thereby acquired title by adverse possession. If the court bad intended to so bold, it would have rendered judgment for defendants since it was undisputed tbat they and their predecessors in title bad paid the taxes for 37 years. The clear implication of the bolding in tbat case is tbat payment of taxes on wild and unimproved lands for the statutory period by one tenant in common is not equivalent to actual possession so as to ripen into title by adverse possession as against bis cotenants, at least, in the absence of a further showing tbat the latter bad actual knowledge of the conveyance or tbat there are such notorious acts of ouster by the former as to put bis co-tenants on notice tbat the full title is claimed. While the chancellor did not pass on this issue, we do not think appellee’s plea of limitations is sustained by a preponderance of the evidence.
As to the defense of laches which was sustained by the able chancellor, it may first be pointed out tbat the appellants are not seeking equitable relief, but only to enforce a legal title, and the doctrine of laches does not apply in such cases. See Beattie v. McKinney, 160 Ark. 81, 254 S. W. 338, and cases there cited. Regardless of this we do not think appellants are barred by laches.
The following definition of the doctrine set forth in 5 Pomeroy, Eq. Jur. (3rd Ed.) § 21, has been repeatedly approved and applied by this court: “Laches, in legal significance, is not mere delay, but delay tbat works disadvantage to another. So long as parties are in the same condition, it matters little whether be presses a right promptly or slowly within limits allowed by law; but when, knowing bis rights, be tabes no step to enforce them until the condition of the other party has in good faith become so changed tbat be can not be restored to bis former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from the loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side, and injury therefrom on the other, it is a ground for denial of relief.” Tatum v. Arkansas Lumber Co., 103 Ark. 251, 146 S. W. 135.
Since appellee purchased the land with full knowledge of appellants’ interests it is difficult to see how it could claim injury on account of appellants’ delay in asserting their rights. Neither appellee nor its predecessors have made any improvements on the land and its increased value on account of rising timber prices is incidental and unrelated to any merit of the appellee or fault of the appellants. The relative positions of the parties here have not been changed by delay. The fact that the land was worth at least a third more than the price paid by appellee would indicate that it was not misled to its prejudice. In Avera v. Banks, 168 Ark. 718, 271 S. W. 970, the plaintiff eotenants sought to cancel numerous leases and mineral deeds to lands that had suddenly become valuable for the production of oil. Having sought such equitable relief, the court held that laches applied and that the defendants had a right to interpose it as a defense. It was further held that plaintiffs were precluded from maintaining the suit by a decree confirming the tax title of one of the cotenants and that plaintiffs had actual knowledge of his adverse claim of title. Other facts distinguished that case from the case at bar.
Having concluded that appellants are not barred from maintaining the instant suit by limitations or laches, the decree is reversed and the cause remanded with directions to enter a decree for the appellants in accordance with this opinion. | [
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Ward, Justice.
Involved here are the rights of a mortgagee to collect on an insurance policy covering an automobile.
Facts. One R. F. Wood gave a mortgage on his automobile to appellant bank in August, 1949, to secure a loan which was unpaid in the amount of $538.07 at the time this action was instituted. Wood moved from Ohio to Little Rock in the latter part of 1949, and on May 1st of 1950 he procured, at the request of appellant, a policy from appellee insuring his car against theft [and other liabilities]. The face of the policy contained the following clause: “(f) Loss payee: Any loss under coverages D, E, F, G, H and I is payable as interest may appear to the named insured and Lucas County Bank, Toledo, Ohio.” It is conceded that loss by theft is included in the previous clause.
While Wood was in Little Rock he lived with a woman to whom he was not married, and on July 25, 1950, she took the car without Wood’s knowledge or consent and disappeared. In response to letters about overdue payments on the loan, Wood wrote to appellant’s attorneys in Little Rock on August 14,1950, and informed them of the disappearance of the car. Although the Little Rock attorneys promptly relayed this information to appellant, it did not notify or make demand on appellee until November 14, 1950. The depositions of appellant and Wood explained the delay in giving notice to appellee on the ground that they did not realize the car had actually been stolen by Wood’s mistress. Appellant explained that it had reason to believe Wood was just trying to evade payments on his note and that it had, during the elapsed time, made a faithful effort to locate the car and the woman and had spared no expense or effort in doing so.
On January 22, 1951, appellant filed suit against appellee, alleging its interest and attaching the policy as an exhibit to the complaint, and prayed judgment for $538.07 with interest from August 1,1950. Appellee filed a general denial and later, over the objections of appellant, was permitted to file an amended answer in which it was stated the insured and plaintiff had not complied with the provisions of the policy regarding notice and proof of loss, and that the plaintiff had no greater rights under the policy than the insured had. We note here that we find the court did not abuse its discretion in allowing appellee to amend its answer. No prejudice was shown by appellant and the case was not decided until fourteen months after the amended answer was filed.
Findings by the trial court. Both parties waived a jury and the trial court made the following findings of facts:
“1. Plaintiff delayed an unreasonable length of time in reporting the loss to defendant, and making claim for said loss after having knowledge thereof.
“2. Plaintiff, as mortgagee, is barred by the failure of Robert F. Wood, the insured and mortgagor, to make a timely claim under the policy. ’ ’
Accordingly, the trial court dismissed appellant’s complaint.
The Policy. The pertinent provisions of the policy are set out below:
Under the heading “CONDITIONS” paragraph 11 reads:
“11. Named Insured's Duties When Loss Occurs— Coverages D, E, P, 0, II, I and J:
“When loss occurs, the named insured shall:
“(a) . . .
‘ ‘ (b) give notice thereof as soon as practicable to the company or any of its authorized agents and also, in the event of theft, larceny, robbery or pilferage, to the police but shall not, except at his own cost, offer or pay any reward for recovery of the automobile;
“ (c) file proof of loss with the company within sixty days after the occurrence of loss, unless such time is extended in writing by the company, in the form of a sworn statement of the named insured setting forth the interest of the named insured and of all others in the property affected, any encumbrances thereon, the actual cash value thereof at time of loss, the amount, place, time and cause of such loss, the amount of rental or other expense for which reimbursement is provided under this policy, together with original receipts therefor, and the description and amounts of all other insurance covering such property.”
Under the same heading paragraph 14 reads:
“14. Paymeni for Loss; Action Against Company —Coverages D, E, F, G, H, I and J:
“Payment for loss may not be required nor shall action. lie against the company unless, as a condition precedent thereto, the named insured shall have fully complied with all the terms of this policy nor until thirty days after proof of loss is filed and the amount of loss is determined as provided in this policy. ’ ’
Law and Conclusions. The loss payable clause we are dealing with here is commonly called an “open” clause and differs materially from the “standard” mortgage clause, as is well established by many decisions. The essential element of a standard mortgage clause is that it, in effect, provides that the policy, as to the interest of the mortgagee, shall not be invalidated by any act or neglect of the mortgagor, whereas the open clause contains no such provision. See Germania Fire Insurance Co. v. Bally, 19 Ariz. 580, 173 Pac. 1052, 1 A. L. R. 488. In Fulmer v. East Arkansas Abstract & Loan Co., 173 Ark. 668, 293 S. W. 1018, it was stated that, under an open clause, the rights of the mortgagee were no greater than those of the insured. However, in view of the holding in Insurance Undenoriters’ Agency of the Insurance Company of Penn. v. Pride, 173 Ark. 1016, 294 S. W. 19, we do not hold here that appellant had no right to give the notice provided for in the policy, but it is clear that he had no greater right, and hence no long-er time, to give the notice than It. F. Wood had. A decision on this point is unnecessary and immaterial here because, as indicated above, the trial court held that appellant had not given notice to appellee within a reasonable time.
The pivotal question presented, therefore, resolves itself into a question of fact, which was decided by the trial judge sitting as a jury. We deem it unnecessary to set out the evidence in more detail than already given because it is obvious that there is substantial evidence to support the finding of the trial court.
Affirmed.
The Chief Justice not participating. | [
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Ed. F. McFaddin, Justice.
This case involves the water level of Old Town Lake in Phillips County. Since the decree of the Chancery Court must be reversed on procedural points, we mention only the facts involving such points.
Appellees, Kizer, -et al., as affected land owners, brought suit in the Chancery Court against the Commissioners of the White River Drainage District of Phillips and Desha Counties, and alleged that the Drainage District, by means of a flood gate, had raised the water level in'Old Town Lake from the former level of 159 feet to the present level of 164 feet. The relief prayed was that the water level be fixed at 159 feet. In the answer, the Drainage District and its Commissioners professed a willingness to fix the water level of the Lake at whatever elevation the Court might decree.
Then Toney and other riparian (littoral) land owners (hereinafter referred to as “Intervening Landowners”) intervened, claiming that the water level of Old Town Lake should be fixed at 169 feet. The Arkansas State Game & Fish Commission (hereinafter called ‘ ‘ Commission”) also intervened; and claimed that the Commission was interested in the fish life of Old Town Lake and that the water level should be maintained at 169 feet. All through the case the Intervening Landowners and the Commission made common cause as litigants. The Drainage District and its Commissioners were all the time willing to any water level that the Court might fix.
More than a score of witnesses testified ore terns; and at the conclusion of the hearing the Chancery Court, on September 5, 1951, appointed three engineers “to make a fair and impartial survey of Old Town Lake and to make their recommendation to the Court for his approval or disapproval . . .” The Intervening Landowners and the Commission objected and excepted to this order. On January 17, 1952, the three engineers filed their signed but unverified report, reading in part:
‘ ‘ That we have made a thorough study of the available records and gauge readings of Old Town Lake covering a period of the past 10 years; that we have, in conjunction with said study, examined the topography of adjoining lands and hydrographs showing the water elevations of said Lake for the years 1942 to 1950; that in addition thereto we have taken soundings to determine the depth of the water in Old Town Lake, and we have concluded that the average normal water level, before the control structure was in operation was 162 feet, mean gulf level, exclusive of extreme high and low stages.”
The Intervening Landowners and the Commission, in their pleading against the report, said, inter alia:
“That at the conclusion of the trial of this case the plaintiffs, the defendants, and the interveners announced that they had each concluded all matters concerning them and submitted the case to the court for final decision. That the court instead of deciding the case determined to appoint a board composed of three engineers to go further into the matter and fix the average water level of Old Town Lake. That at that time the interveners objected to the appointment of such board and stated that they would have no opportunity to cross-examine said engineers. . . . That the interveners have had no opportunity to cross-examine said engineers and that the court is without power at law or in equity and is without jurisdiction to appoint said board of engineers or to allow the filing of said report. ’ ’
The Chancery Court heard no further evidence; and on March 11, 1952, entered the decree, which (a) adopted the engineers’ report in toto, (b) fixed the water level of Old Town Lake at 162 feet, (c) denied the appellants’ motion to strike the engineer’s report, and (d) refused the Intervening Landowners and the Commission any opportunity to cross-examine the engineers on their said report. From such decree, there is this appeal.
The Chancery decree must be reversed because of the refusal of the Court to allow the Intervening Landowners to cross-examine the engineers on their report, after the Court admitted it in evidence. Of course, the report, as offered, was not admissible. It was the ex parte statement of the three engineers, and should not have been admitted as evidence until the parties making the report appeared as witnesses. In Newman v. Lybrand, 130 Ark. 424, 197 S. W. 855, there was offered a certificate of the Sheriff and Tax Collector:
“. . . to the effect that he had examined the tax records in his office for the years 1903 to 1910, inclusive, and that they showed that the taxes on the lands in controversy were regularly paid for each of said years, and that the lands were not returned delinquent for the nonpayment of taxes for the year 1910, and were not marked delinquent on the real estate record.”
In the reported case, the Chancery Court refused to allow the certificate to he considered as evidence; and on appeal, we affirmed the ruling, saying:
“But the chancellor found that the witnesses were not brought into court; that the certificate was not taken as a deposition; that no notice was given to the defendant when it was made; that it was not sworn to, and that in such certificate he made no profert of the record itself or presented any certified copies of the record about which he testified. The chancellor correctly held, upon these findings, that the certificate was incompetent to be considered as evidence in the cause.”
Likewise in Trannum v. George, 211 Ark. 665, 201 S. W. 2d 1015, there was offered as evidence in a child custody case “the record,” which was a narrative report by the welfare worker. We held this report was inadmissible. Mr. Justice Robins said:
“This ‘record’ is chiefly a narrative report by the welfare worker of conversations she had concerning the case of the children with various parties and it also contains correspondence had with the mother of the children. All this was ‘hearsay’ and should not have been admitted in evidence. Certainly the custody of a man’s children ought not to be taken away from him on unsworn statements made out of court. Title Guaranty & Surely Company v. Bank of Fulton, 89 Ark. 471, 117 S. W. 537, 33 L. R. A., N. S. 676; Tipler-Grossman Lumber Company v. Forrest City Box Company, 148 Ark. 132, 229 S. W. 17; Spencer Lumber Company v. Dover, 99 Ark. 488, 138 S. W. 985; Shelton v. Shelton, 102 Ark. 54, 143 S. W. 110; Roberson v. Roberson, 188 Ark. 1018, 69 S. W. 2d 275.”
The report of' the engineers in the case at bar is in the same category as that of the Sheriff and the welfare worker in the two reported cases. The engineers’ re port was not admissible as evidence, and yeL it contained the information on which the Court fixed the water level at 162 feet.
But when the Court admitted the engineer’s report as evidence, then, certainly the Intervening Landowners had the right to cross-examine the engineers; and the denial of such right requires a reversal of the decree. In 58 Am. Jur. 340, the holdings of various jurisdictions are summarized in this language: .
“In a judicial investigation the right of cross-examination is absolute, and not a mere privilege of the one against whom a witness may be called. In a civil action a party has the right to cross-examine witnesses against him whether the evidence is given ore tenus or by deposition. ’
In Ottawa v. Stewart, 70 U. S. (3 Wall.) 268, 18 L. Ed. 165, Mr. Justice Clifford used this clarifying language:
‘ ‘ Cross-examination is the right of the party against whom the witness is called, and the right is a valuable one as a means of separating hearsay from knowledge; error from truth; opinion from fact, and inference from recollection, and as a means of ascertaining the order of the events as narrated by the witness in his examination in chief; and the time and place when and where they occurred, and the attending circumstances; and of testing the intelligence, memory, impartiality, truthfulness and integrity of the witnesses; . . .”
See, also, Babirecki v. Virgil, 97 N. J. Eq. 315, 127 Atl. 594, 39 A. L. R. 171; and State ex rel. Bailes v. Guardian Realty Co., 237 Ala. 201, 186 So. 168, 121 A. L. R, 634; and see also Annotations in 15 L. R. N. S. 493 and 25 L. R. N. S. 683.
Because the appellants were not allowed the right to cross-examine the engineers, we reverse the decree and remand the cause to the Chancery Court. But the hearing0on remand is limited: (a) the Chancery Court will call the engineers to testify in order to make their report admissible; and (b) then the Litigants will be allowed the right of cross-examination. On the present record plus that made on remand as above indicated, the Chancery Court will render its decree. The amount of fee to be allowed the engineers and the propriety of taxing the fee as costs on a pro rata basis are matters not foreclosed by the present decision.
The costs of the present appeal are assessed against the parties who were plaintiffs in the lower Court.
In this opinon all figures as to the water level refer to the elevation above mean sea level, unless otherwise indicated,
A question not presented in the briefs, but one which arose in the consultation in this Court, is the power of the Commission to resist any reasonable order fixing the water level in Old Town Lake. We forego any discussion on this point since the intervening landowners had the right to be heard in regard to fixing the water level, and they have appealed to this Court. We mention the matter only for the purpose of negativing any idea that the present opinion is a holding either way on the question.
“Mean gulf level” would be less than 3/10ths of a foot higher than “mean sea level” in Old Town Lake.
In Fewel v. Fewel, 23 Calif. 2d 431, 144 Pac. 2d 592, the Supreme Court of California discussed the necessity of investigators appearing in Court to authenticate a report and to be subjected to cross-examination.
In the present opinion, we are referring only to civil cases. In criminal eases the right of confrontation is guaranteed by Art. 2, § 10 of the Constitution of Arkansas. For a few criminal cases on confrontation and the right of cross-examination, see Jones v. State, 204 Ark. 61, 161 S. W. 2d 173; Alford v. U. S., 282 U. S. 687, 75 L. Ed. 624, 51 S. Ct. 218.
Some other cases in which Chancery decrees were remanded for further proceedings on a particular point are Carmack v. Lovett, 44 Ark. 180; Turman v. Bell, 54 Ark. 273, 15 S. W. 886; Carlile v. Corrigan, 83 Ark. 136, 103 S. W. 620; and Foster v. Graves, 168 Ark. 1033, 275 S. W. 653. | [
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Ed. F. McFaddin, Justice.
Appellee has filed motion to strike the bill of exceptions, as filed too late. We now deny the motion; but, because of the question presented, we are delivering this written opinion. We hold that it is unnecessary for a chancery decree to fix the time for filing the bill of exceptions since Act 139 of 1951 fixes such time.
' I. Date of Decree. Mrs. Meadows sued Costoff in the Northern District of the Logan Chancery Court. The testimony was taken ore tenus on May 24 and May 29, 1951; and the cause taken under advisement. On October 1, .1951, the Chancellor informed the attorneys of his decision, but left it to them to prepare a precedent for decree to be submitted-to him for approval. The decree as finally prepared and signed was not filed with the Clerk until January 8, 1952. Under these circumstances, —this being a vacation decree — we hold that the decree was not effectively rendered until January 8, 1952. See Redbud Realty Co. v. South, 145 Ark. 604, 224 S. W. 964; and Jelks v. Jelks, 207 Ark. 475, 181 S. W. 2d 235.
II. Time for Filing the Bill of Exceptions. In the decree of January 8, 1952, no' time was given for filing the bill of exceptions. The terms of the Chancery Court for the Northern District of Logan County are the second Mondays in February, June and October of each year. This decree of January 8, 1951, was rendered in the October, 1951, term, which ended on the convening of the February, 1952, term; and the bill of exceptions in this case was not approved and filed until March 24, 1952, which was a day in the next succeeding term after the decree was rendered. Under our old cases, where no time was given for filing the bill of exceptions, then the right to file the bill ended with the term in which the decree was rendered. See Ogletree v. Welker, 185 Ark. 805, 49 S. W. 2d 1054; McGraw v. Berry, 152 Ark. 452, 238 S. W. 618; and other cases on page 58 of C. R. Stevenson’s Book on Supreme Court Procedure, 1948 Edition.
But there has been a consistent course of Legislative enactments and judicial opinions liberalizing the rule of the aforesaid cases. By Act No. 10 of 1943, the Legislature gave the trial judge power to extend the time for filing the bill of exceptions, declaring: ‘ ‘. . . this may be done by the Judge in vacation as well as in court, and may be done after as well as before the expiration of any time previously given”. In Floyd v. Richmond, 211 Ark. 177, 199 S. W. 2d 754, we applied the liberalizing effects of said Act No. 10.
Then by Act No. 90 of 1949, the Legislature again sought to liberalize the rule of our previous cases by allowing the bill of exceptions to be filed “. . . but not beyond the succeeding term”. The purpose of this Act was to clearly show that the end of the term had no effect on the power of the Court to approve the. bill of exceptions; and Yahraus v. Continental Oil Co., 218 Ark. 182, 235 S. W. 2d 544, was decided under the terms of the said Act No. 90.
Still, however, there remained some uncertainties in procedural requirements, as evidenced by such cases as Johnson v. U. S. Gypsum Co., 217 Ark. 264, 229 S. W. 2d 671; Criner v. Criner, 217 Ark. 722, 233 S. W. 2d 393; and Prescott Corp. v. McFarland, 217 Ark. 731, 233 S. W. 2d 70. So the Legislature passed Act No. 139 of 1951, which had for its purpose (as stated in the caption): “To make uniform throughout all Chancery Districts in the State of Arkansas the law governing the filing and preservation for use on appeal of evidence filed and introduced in the several Chancery Districts of the State of Arkansas”.
Section 3 of said Act 139 says that “. . . a complete record of the proceedings shall be made. . . . and filed with the Clerk of the Court . . . not less than 20 days before the expiration of the time allowed for appeal”. The clear purpose of the quoted language was to definitely fix a uniform time for filing of the bill of exceptions in Chancery cases. Section 4 of the Act 139 says: “The Chancellor may . . . approve and sign the record . . .” — meaning, of course, the record filed in accordance with § 3 as above mentioned. Section 4 of the Act also says:
“Upon the approval of the transcribed record, as herein provided, the same shall constitute a bill of exceptions and become a part of the record.”
It is evident that the purpose of this Act No. 139 was to allow the Chancellor to approve any bill of exceptions filed “. . . not less titan 20 days before tie expiration for tie time allowed for appeal”. This Act 139 was not to restrict tie powers of extension granted by Act No. 10 of 1943 and Act No. 90 of 1949, but to make uniform all suci powers as applied to Chancery cases. We said in Bolls v. Craig, 220 Ark. 880, 251 S. W. 2d 482: “But, as previously stated, Act No. 139 of 1951 is now tie governing statute in Ciancery cases ’ ’. Under that Act 139, tie Chancellor had tie power to approve tie bill of exceptions in tie case at bar on Marci 24, 1952, wiici was witiin tie time allowed by tie said Act. In Bolls v. Craig, supra, just as in tie case at bar, testimony was taken ore tenus and no time fixed by tie decree for filing tie bill of exceptions. But in Bolls v. Craig, tie testimony was not filed until 6 montis and 17 days after tie decree, wiereas in tie case at bar tie testimony was filed 2 montis and 16 days after tie decree, wiici was well witiin tie time allowed by Act No. 139 of 1951.
Tierefore, we deny tie appellee’s motion to strike tie bill of exceptions.
There may be cases in which Chancery Courts desire to shorten the time from the maximum allowed by Act 139 of 1951. The power to do so is not an issue in the case now before us.
Act No. 90 still governs in Law Courts, as Act No. 139 applies only to Chancery Courts.
In cases such as Bolls v. Craig and the case at bar, the time for appeal is 6 months from the decree, so that the bill of exceptions can be filed within 5 months and 10 days after the decree. But there are some cases — such as those involving improvement districts, elections, etc.- — in which the time for appeal is less than 6 months. | [
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George Rose Smith, J.
The appellant, George Veatch, charged by information with first degree murder, was convicted of murder in the second degree and appeals from a judgment sentencing him to imprisonment for five years.
The evidence concerning the homicide itself is almost without dispute. On the afternoon of November 24,1951, Veatch was occupying a cabin at the Ozark Tourist Court. Dee Ashford and M. R. Dunn arrived at the tourist court and engaged a cabin for a friend of theirs, Buddy Glover. While Ashford was assisting Glover in getting settled Veatch, noticeably intoxicated, entered Glover’s cabin, accused Ashford of owing him fifty dollars, and shot Ashford through the heart with a pistol.
At the trial the defense was that Veatch, as a result of combat experience during World War II, was temporarily insane when he shot Ashford. While there was some evidence to support this defense, there was much testimony to the contrary. Dr. R. G. Carnahan, a member of the State Hospital staff, testified that he had examined Veatch and that in his opinion Veatch was mentally competent and responsible at the time of the offense and at the time of the examination. Another psychiatrist, Dr. Albert Clarke, was called as a witness for the defense and described the symptoms and effects of psychoneurosis, but on cross-examination Dr. Clarke stated that during his three interviews with the accused he observed no symptoms of this malady. In view of this and other evidence the issue of insanity was plainly a matter for the jury to determine.
It is insisted that the charge should have been presented by a grand jury indictment rather than.by information. We have rejected this contention in several recent cases, e. g., Washington v. State, 213 Ark. 218, 210 S. W. 2d 307, and we adhere to our position.
Several contentions have to do with the admissibility of evidence. It is contended that a statement made by Veatch to the county sheriff should not have been admitted until there was proof that Veatch had first been cau tioned that he might remain silent and that his statements could be used against him. We held to the contrary in Logan v. State, 150 Ark. 486, 234 S. W. 493. Again, it is said that the court should have admitted certain records that would have shown that the deceased, Ashford, was convicted of drunken driving in 1947 and was divorced by his wife in 1948. The trial court was extremely liberal in permitting Veatch to go far afifeld in the presentation of his defense, and there was certainly no error in the rejection of proof that had not even a remote bearing upon the unprovoked attack made by Veatch upon Ashford.
It is contended that since Dr. Carnahan testified as a witness for the State, the court should not have permitted the introduction of Dr. Carnahan’s written findings as to the accused’s sanity. The written report, however, added nothing to the doctor’s testimony, and in any event it is made admissible by statute, Ark. Stats. 1947, § 43-1302, although of course the physician must also testify in order to satisfy the constitutional requirement that the accused be confronted with the witnesses against him. Ark. Const., Art. 2, § 10. Hence there was no error. Nor, for the reasons given in Moore v. State, 184 Ark. 682, 43 S. W. 2d 228, did the court err in refusing to allow counsel for the accused to read to the jury excerpts from various medical treatises.
The motion for a new trial contains other assignments of error, some of which are argued in the brief, but we find none of sufficient merit to warrant further discussion.
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George Rose Smith, J.
This is an effort by the two surviving bodily heirs of Sallie Haden to regain two 160-acre tracts that have been out of the Haden family’s possession for about twenty-five years. In 1895 the property was conveyed to the plaintiffs’ ancestor, Sallie Haden, and to her heirs by J. T. Haden. Sallie Haden, after having obtained deeds from her own children, sold the land to the Bank of Crittenden County in 1926. The appellees, remote grantees of the Bank, rely upon the title conveyed by Sallie Haden in 1926. The main question in the case is whether Sallie Haden had a life estate with (a) a vested remainder in her children or (b) a contingent remainder in her bodily heirs.
In the court below the chancellor sustained demurrers to the separate complaints filed by the two appellants. These complaints, with their exhibits, allege that in 1895 C. A. Jenkins conveyed this land to Sallie Haden “and unto her heirs by her present husband, J. T. Haden, and assigns forever.” It is shown that J. T. and Sallie Haden had1 eight children in all. One died in infancy, without issue, before the execution of the 1895 deed. Three others died in infancy, without issue, between 1900 and 1911. In 1912 the four surviving children gave their mother, Sallie Haden, a warranty deed to the property. Their father, J. T. Haden, died in 1917, and in 1918 these four children again conveyed the land to their mother, this time by a quitclaim deed.
One of the four children, Carrie, died without issue a few months after the execution of the quitclaim deed in 1918. Another, Hugh, died in 1922, leaving as his only descendant a daughter, Huella Haden Steele, who is one of the two plaintiffs. In 1926 Sallie conveyed the land to the Bank. The next death was that of Sallie herself, who died January 4,1948. Thirteen days later one of her two surviving children, Thurman, died intestate and without issue. The fourth child, Irene Haden Cockrillj is still living and is the other plaintiff. In short, the two plaintiffs are Sallie Haden’s child and grandchild.
It is the plaintiffs’ contention that the 1895 deed conveyed a life estate to Sallie Haden with a contingent remainder to her bodily heirs. From this premise it is argued that under the long line of cases beginning with Horsley v. Hilburn, 44 Ark. 458, Sallie’s. children had no interest which they could convey during their mother’s lifetime. Upon this theory it is contended that upon Sallie’s death in 1948 the remainder vested in equal thirds in Thurman Haden and the two plaintiffs. It would follow that upon Thurman’s death the plaintiffs inherited his interest and became the sole owners of the land.
The plaintiffs’ chain of reasoning depends for its validity upon the initial assertion that the deed to Sallie Haden created a contingent remainder in her bodily heirs. If, on the other hand, that deed created a vested remainder in Sallie’s .children it is evident that the children transferred their interest to Sallie, and she in turn conveyed a perfect title to the Bank.
In theory the distinction between a vested and a contingent remainder is clear-cut, but in practice the distinction is apt to be troublesome, since the language in a particular deed or will may fall very near the borderline. Although in this ease we need not undertake a complete analysis of the subject it is essential to distinguish the three classes of remainders that are involved in the arguments presented.
It is familiar law that all remainders may be divided into four classes, and at any given moment every remainder belongs to one and to only one class. Rest., Property, § 157. First and simplest is the indefeasibly vested remainder, such as that created by a grant to A for life with remainder to B. Here B owns tlie fee subject only to A’s life estate; B’s interest may be transferred during his lifetime or upon his death, although it does not become a possessory estate until the life tenant dies.
Almost equally simple is the remainder that is vested subject to open and let in afterborn members of the class. Here the typical grant is to A for life with remainder to his children, as distinguished from his bodily heirs, issue, etc. This remainder vests upon the birth of A’s first child, but it opens up to admit other children later born to A. Thus the membership in the class may increase; but it cannot decrease, since the interest of a child who predeceases A passes by will or intestacy — still subject to open and let in additional children. In our reports the case of Jenkins v. Packington Realty Co., 167 Ark. 602, 268 S. W. 620, may be cited as a typical illustration of this type of remainder.
The third class of remainders, one that is vested subject to defeasance, is not involved in the case at bar. See Rest., Property, § 157, Comments o to t.
Last is the contingent remainder, which is in most cases contingent because the identity of the remainder-men cannot be definitely ascertained until the occurrence of some future event, such as the death of the life tenant. Our leading case is Horsley v. Hilburn, supra, where the deed was to Marietta Hilburn and the heirs of her body. In that case we adhered to the traditional common law conception of a contingent remainder’s character and alienability, as modified by our fee tail statute. Ark. Stats. 1947, § 50-405.
In the case before us the deed was to Sallie Haden “and unto her heirs by her present husband, J. T. Haden.” This is manifestly a borderline case;-for the reference to Sallie’s “heirs” by J. T. Haden could mean either her children, in which case the remainder is vested subject to open, or her bodily heirs in general, in which case the remainder is contingent.
After studying this question for some months we have concluded that, upon the authority of Shirey v. Clark, 72 Ark. 539, 81 S. W. 1057, the reference to Sallie Haden’s heirs by J. T. Haden meant her children, and therefore the remainder was originally vested subject to open. In the Shirey case the conveyance was from A. W. Clark to his wife, Emily Clark, “to have and to hold during her life or widowhood . . . and after her death or future marriage then to the heirs of the said A. Wm. Clark by the said Emily Clark.” We held that the remainder was vested rather than contingent, for the reason that the word “heirs” meant children. “What other meaning could attach to the words, ‘heirs of said A. W. Clark by the said Emily Clark’? They could only mean the children of the.said A. W. Clark by the said Emily Clark then living. The maxim, ‘Nemo est haeres viventis’ does not apply here, because the word ‘heirs,’ as used, evidently means children in esse. The intention of the grantor in the deed must prevail; and it is evident by the use of the words ‘heirs of said A. W. Clark by the said Emily Clark’ he could have meant nothing else than the children of the said A. W. Clark by the said Emily Clark.” In several other cases we have held that, in the particular circumstances, a reference to heirs was intended to mean children. Wyman v. Johnson, 68 Ark. 369, 59 S. W. 250; Powell v. Hayes, 176 Ark. 660, 3 S. W. 2d 974; Taylor v. Cammack, 209 Ark. 983, 193 S. W. 2d 323, noted in 1 Ark. L. Rev. 182.
Even though the deed in the Shirey case was so similar to the deed to Sallie Haden that we regard the earlier case as controlling, it is nevertheless true that the Shirey opinion is open to a dual interpretation. There we said that the reference to A. W. Clark’s heirs by Emily Clark could only mean the couple’s children then living. This language of the opinion, taken literally, could mean that the class was forever limited to the children who were in esse when the' deed became effective, in which case their interest would have been indefeasibly vested, just as if they had been designated by name in the deed. Yet, on the other hand, the court’s reference to the children “then living” may have been an abbreviated way of saying that the estate vested in those children, subject to opening up to let in afterbora, members of tlie class. The opinion itself suggests that the latter view is the correct one, and an examination of- the original transcript dispels all doubt. The transcript shows that one of the children, Homer P. Clark, was not born until five years after the execution of the deed to Emily Clark, but this child was awarded a proportionate share in the property. Since this child was not in esse when the deed became effective, it is maidfest that the court actually construed the deed to create a remainder that was vested subject to open.
In spite of the close similarity between the deed in the Shirey case and the one now in issue the appellants advance an ingenious and not altogether illogical reason for distinguishing the earlier case. There the deed was to Emily Clark with remainder to A.W.’s heirs by her. Here the deed was to Sallie Haden with remainder to her heirs by J. T. Haden. The rather subtle distinction now urged is that in the Shirey case the remainder was to the heirs of the life tenant’s husband, while in this case the remainder is to the life tenant’s own heirs. The argument is that at common law a deed to A for life with remainder to A’s bodily heirs created a fee tail, but a deed to A for life with remainder to B’s bodily heirs did not create a fee tail. Hence, say the appellants, the Shirey case did not really come within our fee tail statute, which vests the fee in him to whom the estate tail would first pass according to the course of the common law. Ark. Stats., § 50-405.
We recognize the adroitness of counsel’s argument, but we arc not all convinced that the distinction proposed is really applicable to the Shirey case. In the suggested common law illustration, thatpf a deed to A for life with remainder to B’s bodily heirs, there is certainly a tacit assumption that B’s bodily heirs'are not-exactly the same persons as A’s bodily heirs. Yet in the Shirey case that assumption would not be well founded. There the deed was to Emily Clark and A. W. Clark’s heirs by her, which in practical effect is precisely the same as a deed to Emily and her heirs by him. As far as the grantor’s intention is concerned, it makes no difference whether he refers to the wife’s children, by the husband or the husband’s children by the wife. Of course the rules of conveyancing-are to some extent inflexible, and not infrequently it is necessary to uive effect to form rather than to intent. But it would involve an altogether undue deference to form alone to give controlling effect to the distinction now urged by counsel.
We conclude that the deed to Sallie Haden and to her heirs by J. T. Haden was in effect a deed to Sallie and her children by him, creating- a remainder that was vested subject to open. At common law such a vested remainder was alienable, and with a lone exception our decisions have adhered to the common law view. In the Shirey case we recognized that the vested remainder of the life tenant’s children would pass by descent. There one of the children had predeceased Emily Clark, and we held that the deceased child’s son succeeded to the interest of his father. In the next case, Jenkins v. Packington Realty Co., 167 Ark. 602, 268 S. W. 620, wherein the remainder was vested subject to open, it was held that the only child of the life tenants could convey his' interest.
In a third case, Landers v. People’s Bldg. & Loan Ass’n, 190 Ark. 1072, 81 S. W. 2d 917, the granting- clause in the deed was to “Willie Millette.and the heirs of her body now born and that may be born unto her.” There were, however, two other references in the deed to Willie Millette and her children, who were named. Construing the deed as a whole, and without intending- to impair the rule of Horsley v. Hilburn, we held that the children “took a vested interest, which would open up and let in other children that were born thereafter,” and that the children could convey their interest before the termination of the life estate. The rule was again applied in Greer v. Parker, 209 Ark. 553, 191 S. W. 2d 584, where, it being agreed that the life tenant was past child-bearing-age, we held that she and her children could convey a merchantable title.
Opposed to these four decisions stands only the case of Deener v. Watkins, 191 Ark. 776, 87 S. W. 2d 994, noted in 1 Ark. L. Rev. 188. The deed was to Dora Watkins for life and at her death to her children — the classic language that is used to create a remainder that is vested subject to open. We said, however, that the children’s interest was not vested but contingent and therefore was inalienable until the death of the life tenant. The Deener case is contrary to the common law as well as to our own earlier and later cases; our efforts to distinguish it have not been successful. We think it best to overrule that decision.
Inasmuch as the interest of Sallie Haden’s children was vested and transferable, it passed to Sallie Haden by' the deeds of 1912 and 1918. One of the appellants, Mrs. Coekrill, seeks to disaffirm the 1912 transaction upon the ground that she was then a minor, but that disability did not exist in 1918. It is evident that in that year the entire ownership of the land rested in Sallie Haden and her four surviving children. The original deed gave Sallie a life estate with a remainder that eventually vested in the seven children that were at one time or another living after 1895. Three of the children died in infancy. The property being a new acquisition, Wheelock v. Simons, 75 Ark. 19, 86 S. W. 830, under the law then in force the estate of the infant children passed first to their father for life, then to their mother for life, and then to their brothers and sisters. Kirby’s Digest, §§ 2636 and 2645; Kelly’s Heirs v. McGuire, 15 Ark. 555. We need not set out the undivided interests that resulted from the deaths of the three children, for it is manifest that the 1918 quitclaim deed merged the fee simple in Sallie Haden. She conveyed to the Bank in 1926, and upon that title the appellees are entitled to prevail.
Affirmed.
Ward, J., dissents. | [
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Riddick, J.,
(after stating the facts.) We are of the opinion that the argument of the attorney for the state was improper. The defendant denied fully any knowledge of the stolen property or any connection with the taking thereof. He admitted that he had about two gallons of whisky in his pos-. session about the time the two barrels of whisky were said to have been stolen from the cars,.but objected t'o telling how he obtained it, on the ground that his answer would tend to convict him of the crime of illicit distilling, and, the defendant being at that time under indictment in the federal court for illicit distilling, the circuit judge sustained his objection, and refused to order him to answer.
When the accused testified in his own behalf, his testimony is the subject of fair comment on the part of the state's attorney, the same as the testimony of other witnesses. (1 Thompson, Trials, § 646.) If the attorney for the state had only called the attention of the jury to.the fact that defendant had not told from whom he obtained the two gallons of whisky, and asked them to consider his failure to tell in weighing his testimony, we are not sure there would have been ground for objection; but he went much further than this, and insisted that the refusal of defendant to answer on the ground that his answer would tend to convict him of another crime was evidence of his guilt at the time charged here. He put defendant in the same position as if he had refused to testify because his answer would convict him of the crime under investigation, or as if he had refused to answer without cause. But defendant had already testified that he had no knowledge of the whisky stolen, and knew nothing about it, and there was nothing to show or tending to show that his refusal to testify was based on any other ground than the one stated by him, except the testimony of the witness for the state. On the contrary, the defendant, after having, stated his grounds for refusing to answer, expressed a readiness to answer the question if ordered to do so by the court. We are therefore of the opinion that the jury had no right to draw a conclusion of guilt from his refusal to answer a privileged question. His refusal to answer under such circumstauces might affect his credibility as a witness, but was no evidence of his guilt of the crime charged. (1 Thompson, Trials, § 989; People v. Wilson, 55 Mich. 506.)
The argument of the prosecuting attorney to that effect was improper, and the ruling of; the court refusing to interfere and stop his argument was erroneous, and, we think, under the facts of this case, prejudicial to defendant. We are aware that courts should proceed with caution, in reversing a judgment of conviction on account of an improper argument of an attorney, but it will be noticed that we have here, not only an improper argument, but, as we think, an erroneous ruling ofj the court allowing and permitting, such argument. If the guilt of the defendant was entirely clear, we might not feel justified in ordering a new trial, but the connection of defendant with the crime rested entirely upon the testimony of one witness for the state, between whom and defendant there was shown to have existed a state of bitter enmity, and whose testimony was contradicted, and who was impeached in other ways. It was still a question with the jury whether they would believe him or not; but, as the jury, under the . argument and ruling of the court thereon, may have treated the failure of the defendant to answer the question above referred to as a tacit confession of his guilt, and based their verdict upon such refusal, we think the judgment should be reversed, and a new trial had, and it is so ordered. | [
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Riddick, J.,
(after stating the facts). The question in this ease is whether, in an action against the sureties upon a guardian’s bond, a judgment can be rendered for an amount greater than the penalty named in the bond.
The penalty of the bond in question in this case was $6,000, and in September, 1892, at the time this action was commenced, the amount due from the guardian to his ward, as adjudged by the circuit court, was, with interest, over the amount of said penalty.
The guardian failed to pay any portion of the sum adjudged against him, and as this sum, with interest to the commencement of this action, exceeded the penalty named .in the bond, the sureties, by the terms of the bond, were at that time liable to the full extent of the penalty named therein. Had they promptly paid that amount, nothing further could have been recovered of them, for the utmost extent of their liability on account of the default of the guardian was the sum named in the bond; but they refused to pay, and resisted the claim, and afterwards judgment was rendered against them for the amount due at the commencement of the suit, with interest thereon. They now contend that the court erred in adding this interest; for, by reason thereof, they are made to pay an amount greater than the penalty named in the bond. But, as it was the legal duty of the sureties to have paid the sum demanded in 1892, when the action was commenced, and, as they refused to do so. and resisted the action, it was, in our opinion, lawful for the court to adjudge against them, not only the sum for which they were liable at the beginning of the action by reason of the default of their principal, but also interest thereon by way of damages for their own failure to perform the stipulations in their bond by payment of the sum found due from the guardian when demanded.
“It may be a reasonable doctrine,” says the court of appeals of New York, “that a surety who has bound himself under a fixed penalty for the payment of money, or some other act to be done by a third person, has marked the utmost limit of his liability. But when the time has come for him to discharge that liability, and he neglects or refuses to do so, it is equally reasonable and altogether just that he should compensate the creditor for the delay which he has interposed.” Brainard v. Jones, 18 N. Y. 35. As tersely stated by another court, “the penalty of the bond is payable because the principal did not fulfill his obligation; the interest is the penalty upon the sureties for not fulfilling theirs.” Wyman v. Robinson, 73 Me. 384. In other words, while the law favors the surety, and will not extend his liability on his contract beyond the strict terms thereof, yet when, by the terms of such contract, the surety becomes liable for the payment of money, and fails or refuses to pay after the same becomes due and is demanded, he subjects himself, under general rules of law, to the payment of damages for this failure on his part. In such a case he must pay interest to the creditor to compensate him for the unlawful withholding of the money due, although the interest, added to the amount due at the commencement of the • action, exceed the penalty named in the bond or contract.
We are not able to concur in the contention of counsel for appellants' that the statutes of this state prescribe a rule different from that stated above. We are satisfied they do not, and that reason, as well as the weight of judicial authority, is in favor of the decree of the chancellor. It is the misfortune of' appellants that the insolvency and default of the guardian has made their property liable for a large amount due from him; still the appellee was clearly entitled to the decree, and it is therefore affirmed. | [
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Griffin Smith, Chief Justice.
The question is whether — as a matter of law based, as it is contended, on undisputed facts — an injured workman who sought compensation under Act 319 of 1939, as amended, (and whose claim was rejected by the commission and circuit court) was an employe of a sub-contractor; or, conversely, was he engaged to do a specific task according to his own methods, without being subject to control except as to results? See Ice Service Company v. Forbess, 180 Ark. 253, 21 S. W. 2d 411, cited in Hobbs-Western Company v. Carmical, 192 Ark. 59, 91 S. W. 2d 605.
Leonard W. Massey filed his claim alleging accidental injuries within the meaning of the Compensation Act while the relationship of employer and employe existed in respect of duties owed Poteau Trucking Company in 1950.
Ben M. Hogan Company held a state highway department contract to surface part of Highway 59 north of Van Burén. Arkhola Sand & Gravel Company maintained a mixing plant at Van Burén and sold the prepared asphalt to Hogan; and Hogan, in turn, arranged withPoteau to transport the mixture to the point of use. Necessarily, as construction progressed, distance from Arkhola to the point of application increased. Hogan’s haulage commitment was to pay Poteau five and a half cents per ton mile. Nature of the so-called “mix” required prompt delivery, but Arkhola’s production capacity varied as water content of the sand it utilized increased or decreased. Poteau, domiciled in Oklahoma, sent five of its trucks for use in delivering the material.
Certain local trnckowners sought procurement of contracts when it became apparent that Poteau would be unable to handle maximum needs, and these truckers were at times permitted to participate in deliveries. One so employed was Massey, and the commission found from competent evidence that as owner of a truck he did public hauling.
The testimony indicates that the local trnckowners persistently applied for positions at the chute where the mixture was supplied, and during a period of several days some were permitted to take loads — an operation supervised by a highway department inspector. An Arkhola representative acted with this employe. A requirement was that the inside of truck bodies be treated with a lubricant to prevent asphalt from adhering. Initially this lubricant was furnished by Arkhola, but when its supply became exhausted a drum belonging to Poteau was utilized. Another “must” was that each load be covered with a tarpaulin. In the case here Massey furnished his cover.
A commission finding is that Poteau did not repair any of the local trucks, but its auto mechanic supervised the five it owned and kept them in order. Drivers of these trucks were paid salaries computed on.an hourly basis from which social security charges and other mandatory deductions are shown.
When appellant’s truck was loaded he took it to scales maintained by the City of Van Burén. Through state arrangements local truckers would obtain triplicate tickets showing tonnage. A copy or original was delivered to Arkhola, Hogan, and the trucker. Massey forwarded his accumulated tickets to Poteau and received payment at four and a half cents per ton mile. This gave Poteau a prima facie profit of one cent per ton mile. Massey was paid $122.12 without deductions for social security or otherwise.
In addition to Massey’s operations, six other truckers did hauling on the Hogan job, receiving pay checks from Poteau ranging from $69.11 to $646.48.
Massey’s accident occurred late August 15th after he had delivered his load. In returning to Van Burén his truck slipped or skidded, then overturned. A sentence in the commission’s statement of the case is that “The evidence is in conflict whether the claimant was on his way home or whether he was on his way back to the mixing plant”. The factual finding is that Massey was not Poteau’s employe when the injury occurred.
Was Massey an employe of Poteau, the sub-contractor ?
The rule for determining which of the two relationships exists is that if there is nothing in the contract showing an intent upon the part of the employer to retain control or direction of the manner or methods by which the party claiming to be independent shall perform the work, and there is no direction relating to the physical conduct of the contractor or his employes in the execution of the work, the relation of independent contractor is created. The governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of the performance, then the relation of master and servant necessarily follows. But if control of the means be lacking, and the employer does not undertake to direct the manner in which the employe shall work in the discharge of his duties, then the relation of independent contractor exists. Moore and Chicago Mill & Lumber Company v. Phillips, 197 Ark. 131, 120 S. W. 2d 722.
A decision where the facts are strikingly similar to those here is Wren v. D. F. Jones Construction Company, 210 Ark. 40, 194 S. W. 2d 896. Wren’s widow claimed compensation for her husband’s death and the defending construction company denied that Wren was its servant. The court’s opinion is summarized in Headnote No. 9: “Where the deceased was engaged to haul gravel for appellee at $3 per load, appellee loading the truck and showing the deceased where to dump the gravel, the finding by the commission that the deceased was an independent contractor is supported by substantial evi dence”. The opinion calls attention to Parker Stave Co. v. Hines, 209 Ark. 438, 190 S. W. 2d 620, where it was said that in determining whether one claiming benefits is an employe or an independent contractor the compensation Act must be given a liberal construction in favor of the workman, “and any doubt is to be resolved in favor of [the claimant’s] status as an employe rather than an independent contractor”. — Irvan v. Bounds, 205 Ark. 752, 170 S. W. 2d 674.
But we have consistently held that no rule of unvarying application can be formulated for ascertaining whether a workman is a servant or an independent contractor, ‘ ‘ and each case must be determined upon its own peculiar facts”.
Mr. Justice R. W. Robins wrote a strong dissenting opinion, pointing to his disagreement with the majority’s findings in the Wren-Jones case. He was joined by Mr. Justice Millwee. The dissent emphasizes this court’s duty to adjudge whether the evidence is undisputed, but in considering the factual structure, including reasonable inferences, there must be a “liberal” construction.
“Liberal construction”, as judicially applied under legislative mandates dealing with remedial rights, has a somewhat dubious connotation. The phrase cannot, of course, mean that a court is to take liberties with what one litigant is entitled to at the expense of another, yet this would seem to be the meaning of language found in Glen Falls Portland Cement Company v. Van Wirt Construction Co., 228 N. Y. S. 289, 299, 132 Misc. 95. The court there said: “The required liberal construction means a construction in the interest of those whose rights are to be protected”. We prefer the more reasonable definition by Mr. Justice Fairchild of the Wisconsin Supreme Court, State, ex rel. Mueller v. Common School Board,, 208 Wis. 257, 242 N. W. 574, who said that liberal construction consists in giving statutory words a meaning “which renders [the Act] effectual to accomplish the purpose or fulfill the intent which it plainly discloses”.
Excerpts from selected cases dealing with liberal construction are to be found in Words and Phrases, v. 25, pp. 118-19. Some of the expressions are: “[The] term ‘liberal construction’ means to give statutory language its generally accepted meaning, to the end that most comprehensive application thereof may be accorded, without doing violence to any of its terms”. Maryland Casualty Co. v. Smith, (Texas) 40 S. W. 2d 913. And again: “Liberal construction does not mean enlargement or restriction of any plain provision of law. If a statutory provision is plain and unambiguous, it is the duty of the court to enforce it as it is written. If it is ambiguous or doubtful, or susceptible of different constructions or interpretations, then such liberality of construction may be indulged in as, within the fair interpretation of its language, will effect its apparent object and promote justice”. In re Johnson’s Estate, 33 P. 460, 466, 98 Cal. 531, 21 L. R. A. 380; In re Jessup, 22 P. 742, 745, 81 Cal. 408, 6 L. R. A. 594.
So here, in construing an individual’s rights under the Workmen’s Compensation Law, the clear purposes of the Act must be enforced, and the legislative intent should be ascertained from what is written; but where obscurity of expression and inept phraseology appear and a restrictive construction would have the effect of defeating praiseworthy purposes that undoubtedly actuated the lawmaking body, then resort may be had to the rule of liberal construction in furtherance of a composite whole.
Appellant’s counsel discuss the testimony of Poteau’s foreman to the effect that if Massey had refused to do something asked of him he would have been discharged. It has been held that “the right to hire and fire” may be considered in ascertaining whether the relationship is that of independent contractor or master and servant. However, it is not conclusive unless from all transactions the fact-finders decide that reservation of this right is tied with control of means or methods whereby the work is done, and then only if the right of discharge may in reason be said to influence physical operations. Here the foreman thought that the duty enjoined upon Massey and other local carriers was of such a simple nature that directions were dispensed with — not even considered; and assuredly, when the truck overturned, Massey was in full control uninfluenced by any directions as to speed, road conditions, or other factors that conceivably could have contributed to the accident.
Section 6 of Act 319 of 1939 was discussed in an opinion written by Mr. Justice Leflar, Brothers v. Dierks Lumber & Goal Co., 217 Ark. 632, 232 S. W. 2d 646. Although the decision was in 1950, the cause of action originated in May, 1948. Initiated Act No. 4, (now § 81-1306, Ark. Stat’s, Supplement) became effective in 1949.
Tne record discloses an agreement that the Hogan Company and its liability carrier should be dismissed.
Initiated. Act No. 4, Ark. Stat’s, § 81-1306, makes the prime contractor liable where a sub-contractor fails to secure compensation. The section, in part, reads: “Any contractor or his insurance carrier who shall become liable for the payment of compensation on account of injury to or death of an employe of his sub-contractor may recover from the sub-contractor the amount of such compensation paid or for which liability is incurred. The claim for such recovery shall constitute a lien against any moneys due or to become due to the subcontractor from such prime contractor. A claim for recovery, however, shall not affect the right of the injured employe or the dependents of the deceased employe to recover compensation due from the prime contractor or his insurance carrier ’ ’.
With elimination of Hogan we deal only with Poteau and the compensation carrier. The case was tried upon the correct assumption that Poteau had a right to employ a servant or an independent contractor, and in view of facts to which the commission pointed we are unable to say there was no substantial basis for the determination it made. This being true circuit court did not err in refusing to disturb the order.
Affirmed. | [
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Griffin Smith, Chief Justice.
The constitutional right of rural property owners to form a district for drainage purposes and to include virtually all of the City of Pine Bluff is questioned by the appeal.
Harding Drain Improvement District was created by order of Jefferson county court pursuant to § 21-501, et seq., Arkansas Statutes. An area of approximately 6,400 acres in and out of Pine Bluff is delineated, the city proportion being about 71% of the whole.
The brief writers agree that conditions well-nigh intolerable exist respecting the municipality. A bayou converted into a ditch, known as Harding Drain, extends east-west through most of the urban territory. Originally its outlet was the Arkansas river, but high water stages retard flowage to such an extent that occasionally large sections of the city are flooded by water originating in the upper drain, supplemented by the backsweep from river pressure.
The difficulty was partially overcome when a floodgate was installed near the river supplementing Baxter Ditch — now called the Outlet Canal. This ditch ran from Harding Drain in a southerly direction to empty into Bayou Bartholomew. It is now asserted that the outlet canal — originally designed to carry water the floodgate would not accommodate — has deteriorated and that recurring floods have taken such a heavy property toll and discommoded the urban and interurban districts and normal community life to such an extent that common reason finds concurrence in objectives for which Harding Drain Improvement District was created; and this is said to be true to a greater extent within the city than it is in the rural boundaries upon which precipitation causing most of the headwater occurs.
Many factors enter into the city’s necessity for drainage relief, but with these we are not judicially concerned, since the appeal presents a purely legal question. For instance, it is shown that current expenditures of $1,750,000 are being made to rebuild and renovate Pine Bluff’s sewage system. There is the contention that the improvements the commissioners of the Harding District are authorized to make are in the nature of companion projects to the sewage disposal undertaking. Factual matters indicating this relationship and details of the drainage project are disclosed by the pleadings.
Estimated cost to the appellee district and the Federal government is close to $600,000. Of this total the contributed portion is more than $300,000. Local cooperation includes the assurance that right-of-ways will be made available. New bridges, where necessary, must also be provided. Harding Drain must' be cleared, an Eighteenth-st. lateral guaranteed, and the government must be held harmless against damage claims arising as an incident to the work. After completion maintenance will be the district’s responsibility.
Inequality of assessments is not an issue, nor does the record show a contention that unnecessary work is planned, or that construction will not be prosecuted expeditiously and as prudently as circumstances may warrant. It is therefore unnecessary to enter into a discussion of phases not pertinent to our decision.
Appellants rely upon Craig v. Russellville Waterworks Improvement District, 84 Ark. 390, 105 S. W. 867. It was there said that those who framed the constitution expressly recognizéd power of the legislature to authorize assessments in towns and cities affecting realty, “But,” says the opinion, in quoting from Mr. Justice Riddick (Crane v. Siloam Springs, 67 Ark. 30, 55 S. W. 955), “ [the constitution limits such assessments] to local improvements, and requires that they should be made only on property adjoining the locality affected, and based upon the consent of a majority in value of the owners of such property. ...”
Reversal of the instant case, say appellants, is required by the admitted fact that most of Pine Bluff is within the drainage area, and consent of a majority in value of urban proprietors was not obtained.
We have concluded that Butler v. Board of Directors of Fourche Drainage District, 99 Ark. 100, 137 S. W. 251, is authority for upholding formation of the district. Craig’s suit against Russellville was commented upon in the opinion written by Chief Justice McCulloch ; but Butler’s case contains a statement that Art. 19, § 27, of the Constitution, applies only to assessments made for purely local improvements within a municipality, — “and not to local improvements covering wider territory, even though a part or all of the municipality be included therein.”
Succinctly, the holding is that an improvement district such as the one with which we are dealing, cover ing both city and rural property, does not fall within the letter or the spirit of the constitutional provision appellants would invoke.
If the complaining parties had shown that rural property insignificant in area or so grossly'disproportionate in value as to suggest fraud, had been included in the district without the consent mentioned in Art. 19, § 27, a different principle would apply.
Affirmed. This appeal having been advanced in the public interest, an immediate mandate should issue. | [
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Bunn, C. J.
The appellant, McCracken, obtained judgment against the defendants, and caused their property, consisting mostly of timber, lumber, and saw mill machinery, to be levied on and sold to satisfy his judgment. An appeal was prayed_from the judgment, but no supersedeas bond was given, and no supersedeas writ issued. At an adjourned day of the term of the court, the defendants having filed a second motion for a new trial, on the ground of newly discovered testimony, among others, and after the execution sale, the court sustained the second motion, and set aside the former judgment, under which the sale of the property was had. Defendants then filed their amended answer and cross-complaint, claiming damages growing out of the sale of their said property under the judgment aforesaid; and the plaintiff first demurred, which being overruled, he answered, and a new trial was had-, resulting in a verdict and judgment against the plaintiff for the full value of all the property sold. Plaintiff filed his motion for new trial, showing that he had newly discovered evidence as to the sale of the property, tending to show who were the real purchasers, but this was overruled, and this appeal was taken. The record is too complicated and confused to justify a more extended statement of the case.
The trial court should have treated the amended answer and cross-complaint of defendants, as we now treat it, as a motion or petition for an order of restitution and prayer for damages in the alternative. That motion should have stated clearly and pointedly who was the real purchaser of the property sold at the execution sale, and how much of it each purchaser, if moi’e than one, purchased at the sale, so that the plaintiff might have been permitted to restore the property to the defendants, or to the court, as the case might be and, failing to do so, show cause why he did not or would not do so. The plaintiff, in pursuing his remedy to collect his debt, was neither a trespasser nor wrongdoer in the true sense, but had obtained a valid judgment fairly, and no supersedeas had been issued to stay his proceedings. He was therefore entitled to the protection of the rule, now of universal application in such cases, which is in substance thus laid down by Fi’eeman in his woi’k on Judgments, and which we give here for the future guidance of the court in the tidal of this cause. Plaintiff purchasing at his execution sale, on reversal of the judgment under which the sale is made, is entitled to the benefits of the order of restitution, so that he may restore the property in specie, if he can. If he cannot, he is responsible to the defendant for its loss. If the property is purchased by a third pei’son, the measure of damages is the price it brought at the sale and interest, and if the defendant is the purchaser, there is no recovery against plaintiff, except for money paid, because the defendant has what he claims. Freeman, Judgments, §§ 482, 483, 484.
Reversed and remanded. | [
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Ed. F. McFaddin, Justice.
This is a suit seeking to set aside a decree on the claim of the unauthorized appearance of counsel.
On June 20, 1945, the Chancery Court of Johnson County entered a decree quieting the title of Mrs. Burgett (the present appellee) to certain lands as against J. B. Roberts, Ida Bell Roberts, H. B. Covington, Hazel Covington, C. W. D. Jones, Minnie Jones, Robert H. W. Jones ancl Mattie Jones. We will hereinafter refer to that suit as the “1945 case.” The decree of the Johnson Chancery Court in that case was affirmed by us in Roberts v. Rurgett, 209 Ark. 536, 191 S. W. 2d 579.
It will be observed that Robert H. W. J ones and Mattie Jones, his wife, (the present appellants), were listed as parties in the 1945 case. On November 17, 1951, the said Robert H. W. Jones and Mattie Jones, his wife, filed the present suit in the Johnson Chancery Court, seeking to vacate the said decree rendered against them in the 1945 case. In the present suit, Jones and wife alleged: that they had lived in Kansas for many years; that they were neither personally nor constructively summoned in the 1945 case; that they did not enter their appearance in the 1945 case; that they did not authorize any attorney to appear for them; that they did not know, until 1951, that judgment had been rendered against them in the 1945 case; and that they had a meritorious defense to the 1945 case.
Mrs. Burgett (plaintiff in the 1945 case and appellee here) resisted the present suit: she pleaded the decree in the 1945 case as res judicata, and also pleaded laches and estoppel. The .Court heard the evidence offered, and in a carefully prepared opinion found: (a) that Mr. and Mrs. Jones were represented by a duly authorized attorney in the 1945 case; and (b) that Mr. and Mrs. Jones had no meritorious defense to the 1945 case. A decree was entered in accordance with such findings and the petition to vacate was dismissed. The said Robert H. W. Jones and Mattie Jones, his wife, prosecute the present appeal, and will be herein referred to as “Appellants.”
We find it necessary to discuss only the issue first mentioned by the Chancellor — i. e., the appellants were represented by a duly authorized attorney in the 1945 case. The evidence in the present suit showed that Robert H. "VV. Jones and Mattie Jones, his wife (the present appellants) had known C. R. Starbird since the childhood days of the parties; that C. R. Starbird is, and has been for many years, a regularly practicing attorney in Arkansas ; that when Mrs. Burgett filed the 1945 case, she attempted to summon the present appellants constructively, by having a warning order published and an attorney ad litem appointed; that Mrs. Jones came to Arkansas on account of the death of a relative, and while here, visited with Mr. Starbird. Mrs. Jones denied that .she employed Mr. Starbird to represent appellants in the 1945 case, but he testified that he was so employed and that he corresponded with the appellants about the case. At all events, Mr. Starbird, a regularly practicing attorney, filed a pleading for Mr. and Mrs. Jones in the 1945 case, and had their testimony taken by deposition.
The agreement to take the depositions of Mr. and Mrs. Jones was dated October 28, 1944, and contained a caption of the case showing Robert E. Jones and Mattie Jones listed as defendants, along with the other defendants in the 1945 case. Mr. Starbird wrote Mr. and Mrs. Jones as to the depositions; and Mr. Jones admits paying $10.25 for the cost of taking the depositions in Kansas. In those depositions taken in the 1945 case, Direct Interrogatory No. 2, propounded to Mr. Jones, read as follows:
“Are you the same Robert H. Jones named as defendant in a case in the Johnson Chancery Court filed by Rhoda M. Jones Burgett, and mentioned as an heir at law of H. W. Jones, late of Johnson County?”
Mr. Jones answered that Interrogatory, “Tes.” Mrs. Jones’ deposition was taken at the same time and place that Mr. Jones’ deposition was taken, and she undoubtedly knew of the above Interrogatory and answer.
Thus, despite all protestations to the contrary, the foregoing Interrogatory and answer show that if Mr. Jones thoughtfully answered the copied Interrogatory, then he knew that he was a party to the 1945 case and that Mr. Starbird was representing him. There are many other circumstances in the case all going to show that Mr. and Mrs. Jones authorized Mr. Starbird to enter their appearance in the 1945 case; and because of'such factual matters, they are necessarily bound by the result of that case.
In Williams v. Alexander, 140 Ark. 442, 215 S. W. 721, the claim was made that the appearance of counsel had not been authorized; and Mr. Justice Hart, speaking for this Court, said:
í ¡ recor¿[s 0f a COurt regular upon their face have a large degree of sanctity attached to them and are not to be lightly overcome. Hence where the-appearance of the parties is entered by regular practicing attorneys, the evidence of a want of authority must be clear and satisfactory in order to warrant a court of equity in relieving the party against the judgment. Wheeler v. Cox, 56 Iowa 36, 8 N. W. 688, and Harshey v. Blackmarr, 20 Iowa 161, 89 Am. Dec. 520, and Winters v. Means, 25 Neb. 241, 41 N. W. 157, 13 Am. St. Rep. 489.”
And in concluding the opinion, Justice Hart used this language:
“When the whole record is read and considered together, we are of the opinion that the appellants have not made out their case by that clear and satisfactory proof which is required in cases of this sort.”
The foregoing quotations fully and completely express our views in the case at bar.
Affirmed.
There was no report of the attorney ad litem.
When the 1945 case was appealed to this Court, the appellants were represented by the firm of Wilson & Starbird, since the partnership of the lawyers had been formed.
This case is cited along with cases from many jurisdictions in an Annotation in 88 A. L. R. 12, entitled: “Attack on domestic judgment on ground of unauthorized appearance for defendant by attorney.” | [
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Wood, J.
This appeal is from a judgment of the Pulaski circuit court in favor of appellee, based upon the following instrument: “$1,000. Keesville, N. Y., Aug. 3, 1882. On the first day of January, 1883, for value received, I promise to pay Laura S. Hewitt one thousand dollars, with interest, payable in levee bonds of the state of Arkansas, at par, and at Little Rock, in said state. N. G. Hewitt.”
The case was tried by the court sitting as a jury, and the facts, as found by the court, are as follows: “The court finds the note executed August 3, 1882, and due January 1, 1883; that N. G. Hewett died February 6, 1887, and letters of administration were issued on his éstate February 19,1887; [that] the claim was presented in due form of law to the administrator on December 15, 1888, within two years of granting of letters; that the levee bonds and furniture, claimed to have been accepted under the agreement of December, 1886, were never, in fact, delivered and accepted in satisfaction of said note, and that the accord was never consummated, though it was agreed upon by the parties; and plaintiff is entitled to judgment for $1,000 interest at 6 per cent, from August 3, 1882.” The court declared the law as follows: “The note is for $1,000, with interest at 6 percent, from date, with right of maker to discharge in levee bonds at their face at maturity. Not having been so discharged, the maker was liable for the amount stated in money, and, this never having been paid or settled, the plaintiff is entitled to judgment for the full amount and interest from date, and judgment ordered accordingly.
The woi’d “payable,” whexx used in comixiereial transactioxxs, and in instruments like the one in suit, means “to be paid,” rather than “which maybe paid.” Century Diet. “Payable,” 2. Both texuns, when used in similar instruments, received an early construction by this court, which has not been departed from, axxd to which we adhere. In Day v. Lafferty, 4 Ark. 450, the suit was in covenaxxt upon the following instrument: “$129.50. By the first of April next, we px’omise to pay Lorenzo D. Lafferty one hundred and twenty-nine dollars and fifty cents, for value received, payable in current Arkansas Bank Notes. Witness our hands and seals, this 24th December, 1870.” A plea of tender was set up, and a demurrer was sustained to said plea by the lower court, one reason being “that tender was not made on the day of payment.” In discussing this, the court, through Judge Dickinson, said: “We consider the law well settled that, if a party covenants to pay in specific articles, he must meet his contract at the time and in the manner specified. Tender cannot be made after the day, unless the damages are capable of being x’educed to certainty by computation; nor can it be px’etended that it is possible to do so, in this instance, without the intexwention of a jury.” In Gist v. Gans, 30 Ark. 309, Judge English, after quoting the above, said: “The effect of this decision is that the obligation sued on was not payable in money, but in bank notes, the value of which would have to be assessed as damages. In Dillard v. Evans, 4 Ark. 176, the suit was in debt on a note payable “in the common curreixcy of Arkansas,” and it was held that the note sued on was not an obligation for the direct payment of money.” See also Hudspeth v. Gray, 5 Ark. 157; Graham v. Adams, 5 Ark. 262; Hawkins v. Watkins, 5 Ark. 481; Wallace v. Henry, 5 Ark. 107; Sims v. Whitlock, 5 Ark. 103; Wilburn v. Greer, 6 Ark. 358; Bizzell v. Brewer, 9 Ark. 58.
In the case of Gregory v. Bewley, 5 Ark. 518, the writing sued on was as follows: “One day after date we or either of us promise to pay to Hawkins Gregory, executor of the estate of R. T. Banks, deceased, the sum of two hundred and twenty-seven dollars and twenty-five cents, with interest at the rate of ten per cent, per annum until paid, which may be discharged in Arkansas money.” In Hays v. Tuttle, 8 Ark. 124, the writing sued on was a note in the ordinary form for forty dollars, with this closing sentence: “This note may be paid in the currency of Arkansas.” In these cases it was held that the words “may be discharged,” or “may be paid,” imported an alternative condition in the writing by which the maker might discharge his obligation for the payment of money at maturity in the particular funds or property specified, but, if he failed to do so at maturity, the privilege was gone, and the obligation to pay in money or specie became absolute. There is no conflict between these cases and Day v. Lafferty and other cases, supra, but a clear distinction, which Judge Sebastian recognizes in Gregory v. Bewley, supra, as follows: “The obligation here sued on is distinguishable from the case of one payable primarily in common currency of Arkansas.” Citing Dillard v. Evans and Hudspeth v. Gray, supra.
The obligation in the case at bar was payable primarily “in levee bonds of the State of Arkansas.” There is nothing in the record to show that the term “payable” in the obligation sued on was used in any other than the sense in which that term is usually employed in ordinary commercial or other business transactions. The common acceptation of the term, when so used, is “to be paid,” as indicated in the beginning of this opinion, and it does not signify any alternative condition, privilege or option, but the positive and absolute condition of payment at the time, place and in the specific funds named. The court therefore erred in its declaration of law.
We find no other error; but for this the judgment is reversed, and the cause is remanded for new trial. | [
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Bunn, C. J.
This is a petition for the writ of certiorari to bring up and quash the judgment, orders and proceedings of the Miller county court, whereby it called in its county warrants for the purpose of examination, reissuance or cancellation, and wherein it outlawed certain warrants belonging to the petitioner because he failed to present them for that purpose, as required in said order, the petitioner alleging that he had no legal notice of the'pendency of said proceedings. The petition and answer set forth the full record, and evidence dehors the record was also taken and presented, and, a demurrer to the sufficiency of the record notice being interposed, the case, in effect, went off on that. Judgment for petitioner, and the county appealed.
The proof of publication of the notice calling in the warrants, by J. E. Daniels, an accountant of the Gazette Newspaper, was not in accordance with the statute, which requires the chief accountant, and not an accountant, to make the affidavit. This court has said time and again that this statute must strictly be complied with, or else the proceedings thereunder will be null and void. We are not at liberty to say an accountant is the same as the chief accountant. The affidavit, therefore, does not show on its face that the affiant is one whom the law authorizes to make it for the purposes intended, and the failure to comply with the statute in this particular is fatal to the proceedings subsequently had upon such defective notice.
None of the other objections raised to the proceedings in the county- court may be well founded, in a proceeding by certiorari where the record connot be contradicted, and where the record shows no defect, but it is unnecessary to consider any of them, since the judgment must be affirmed for the error in the proof of notice-ref erred to.
Affirmed. | [
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Ed. F. MoFaddin, Justice.
The appellants, Richardson and Shoop, were jointly charged, tried and convicted of grand larceny. Richardson’s motion for new trial contains eight assignments, and Shoop’s contains fourteen assignments. We group and discuss all of these in convenient topic headings:
I. Sufficiency of the Evidence.' The appellants were charged with feloniously stealing and carrying away from the field of Willis Arnold, 179 dozen ears of corn, of the total value of $44.75. It was shown that at 3:15 A.M. the Van Burén city officers found the two ap-. pellants and a third person in a parked car, which was loaded with freshly pulled corn. The appellants showed the result of recent drinking of intoxicants. They claimed they had purchased the corn from Logan Gentry. The person in the car with the appellants accompanied the officers to Willis Arnold’s corn field. There, tire tracks showed where a vehicle had been parked, and footprints showed where persons had come from the corn field to the car. The officers testified (a) that the tire tracks in the field were similar to those made by the car in which the appellants had the corn; (b) that' the shoe tracks in the field were similar to those of the appellants; and (c) that the corn found in appellants’ possession was similar to the other corn still on the stalks in Arnold’s field. We will discuss the competency of the officers’ testimony on these points in Topic II, infra. The value of the corn found in the appellants’ car was established at $44.75. Logan Gentry testified that he did not sell or give corn to the appellants.
Without stating all of the evidence in further detail, it is sufficient to say that, viewing it in the light most favorable to the State, and holding the questioned evidence to he competent, as discussed in subsequent Topics herein, we hold the evidence sufficient to sustain the verdict against each appellant. See Duty v. State, 212 Ark. 890, 208 S. W. 2d 162; and Jackson v. State, 101 Ark. 473, 142 S. W. 1153.
II. Testimony of Non-Expert Witnesses. Appellants claim that the Trial Court committed error in al lowing the officers, as non-expert witnesses, to testify as to the similarity (a) of the car tracks in the field to tracks made by appellants’ car; (b) of the footprints in the field to appellants’ footprints; and (c) of the corn found in appellants’ car to the corn remaining on the stalks in Arnold’s field.
In Miller v. State, 94 Ark. 538, 128 S. W. 353, in discussing non-expert evidence, we said:
“Furthermore, the opinions of ordinary witnesses, derived from observation, may be given in evidence in cases where, from the nature of the subject, the facts cannot be otherwise properly presented to the jury. ‘Where the facts are of such a character as to be incapable of being presented with their proper force to any one but the observer himself, so as to enable the triers to draw a correct or intelligent conclusion from them without the aid of the judgment or opinion of the witness who had the benefit of personal observation, he is allowed, to a certain extent, to add his conclusions, judgment, or opinion.’ 6 Thompson on Negligence, Sec. 7750.
“Frequently, the opinion of a witness as to the appearance of an object he has seen is the best and only evidence obtainable, and therefore such statements of the witness are admissible. 5 Ene. Ev. 677; Lawson on Expert & Opinion Ev. (2nd Ed.) 512. Thus it has been held that a witness may testify that spots and spatters on a thong were blood; and that blood seen by the witness was fresh blood. Greenfield v. People, 85 N. Y. 75; State v. Bradley, 67 Vt. 465; People v. Loui Timg, 90 Cal. 377. In the case of Commonwealth v. Dorsey, 103 Mass. 412, a witness was permitted to testify that certain hairs were human.”
Again in Trimble v. State, 150 Ark. 536, 234 S. W. 626, in discussing non-expert testimony as to similarity to footprints, we said:
“Stokes, the person assaulted, was permitted to testify, over appellant’s objection, that certain tracks which he found in his yard the next day after the shooting were the same tracks which he had followed around his field— these last being tracks admittedly made by appellant. The objection to the question is that it called for the opinion of the witness upon a subject upon which he had not shown himself qualified to testify as an expert. We do not think the objection well taken.”
In Thurman v. State, 211 Ark. 819, 204 S. W. 2d 155, many of our cases are listed. See, also, Annotation in 31 A. L. R. 204. In the case at bar, the witnesses testified as to their observations and methods of comparison —whether physical or mental; and the acceptance of the reliability of such testimony became a matter for the jury to decide. The Court committed no error in admitting any of such evidence.
III. The Grade of Larceny. The value of the corn found in appellants’ car was shown to be $44.75, and this value was enough to make the offense grand larceny, if the jury believed the corn was stolen from Arnold’s field. It is practically undisputed that the corn found in appellants’ possession was stolen; but it is claimed that a portion of it was stolen from some one other than Willis Arnold. The effect of this contention is that if appellants were guilty of anything, they were guilty of a series of petty larcenies, rather than one act of grand larceny. It is true that appellant Shoop testified that some of the corn came from Osborn’s field; and it is also true that some corn was stolen by some one from Wofford’s field: but it was for the jury to decide from whom appellants stole the corn found in their possession. There was ample evidence to warrant the jury’s verdict that all of the corn found in the appellants’ car had been stolen from the field of Willis Arnold. The value of that corn would make the offense to be grand larceny.
Conclusion
We have examined all of the assignments of error in the two motions for new trial and find them without merit. Therefore, the judgment against each appellant is affirmed.
This is our rule on appeal in criminal cases like this one. Bedford v. State, 187 Ark. 1162, 59 S. W. 2d 590; and Dowell v. State, 191 . Ark. 311, 86 S. W. 2d 23.
Act No. 243 of 1949 amended § 41-3907 Ark. Stats, so that the value of the stolen property must now exceed thirty-five dollars in order for the offense to be grand larceny.
In the brief for Shoop there is this statement: “. . . if the defendants took corn of Mr. Arnold, they had also taken corn belonging to some other person too and there were two distinct larcenies, the number of pounds and value in each larceny not being in evidence and nothing from which the jury could determine the number of pounds or value in each larceny . . .” In the Richardson brief, there is this statement: “Other corn was missing in the bottoms that night, however, the jury and the officers saw fit to assume the corn came from Mr. Arnold’s field.” | [
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Bunn, C. J.
This is a suit for damages for being expelled from defendant’s passenger coach. Damages laid at $2,500. Judgment for $400, and defendant appealed, because of errors in giving and refusing instructions, and in the admission of improper testimony, and because the verdict is- contrary to law and testimony, and is excessive.
The complaint, in substance, states that the plaintiff purchased two passenger tickets for passage of himself and brother from Hot Springs to Atkins, in this state, paying the full and regular price therefor, from the defendant’s ticket agent at Hot Springs, who had authority to sell tickets over defendant’s line to Malvern and the connecting line extending thence to Atkins; that in a short time he boarded defendant’s regular passenger train, intending to make his journey aforesaid, but that, having gone about one mile, the conductor of the train, to whom he had presented the tickets aforesaid, refused to accept them in payment of their fares to Malvern, and demanded that they pay their fares to said point, accompanying the demand with the threat or announcement that, unless plaintiff did so, he would put them off the train. After some. parleying between them, the conductor stopped the train, and the plaintiff and his brother got off, and walked back to the Hot Springs depot, and then had the tickets corrected by the ticket agent; that they were thus delayed in their journey until the' next train went out, which occurred eight or ten hours later; that the occasion of their journey was a receipt of a telegram just before the purchase of the tickets, informing them of the dangerous illness of another brother, residing at Atkins, and that, when they did reach him, he was in an unconscious state, and died sometime afterwards, having never revived so as to recognize them. Plaintiff claimed damages because, by reason of the negligence of the ticket agent in not delivering him his ticket to Malvern, he was put off the car by the conductor, and at a different place than a regular stopping place or station; because he was thereby made the butt of laughter and ridicule by his fellow passengers, and thereby suffered great indignities and mortification; because he was put to the trouble of walking back to Hot Springs depot; because of the delay; and because during the delay he suffered mental anguish over the condition of his brother.
The answer of the defendant denied all negligence and improper conduct on the part of the conductor; denied that plaintiff was expelled from the ears, but, on the contrary, alleged that he got off voluntarily; and denied that plaintiff was injured in any manner.
The evidence sustains' the allegations in the complaint, except as to what occurred between plaintiff and the conductor, and in that it is conflicting; and it also shows that the deceased brother at Atkins had been unconscious a day or two before his brothers arrived.
The suit is treated by the parties as one for tort, and not for a breach of contract, and we will so treat it also. The contention of appellees is that, having purchased and paid for the tickets over appellant’s and the connecting roads, and having boarded the train relying upon his ticket to insure him passage to Malvern as well as from thence to Atkins, he had. the right to stand upon the contract thus made between appellant and himself, and to remain and be transported on said train, notwithstanding the mistake of the ticket agent of appellant in failing to deliver to him the coupon or portion of the ticket calling for passage from Hot Springs to Malvern, and that his expulsion by the conductor was therefore unlawful. On the other hand, the appellant contends that the conductor could only rely upon the face of the ticket to determine his duty in the premises, and that the representation of the passenger to the effect that he had in fact paid his fare, and that the ticket agent had made a mistake in not delivering him a proper ticket, was no evidence upon which he could lawfully act in his efforts to enforce the reasonable rules of the appellant company. The court below adopted the view of the appellee, and instructed the jury accordingly.
Whether, under such circumstances as are detailed in the testimony of this case, a-conductor, collecting tickets and fares, is justified in relying solely upon the fact and appearance of the ticket to determine his duty as to the acceptance of the same, and as to his expulsion of a passenger for refusing to pay fare, in case of his rejection of the same, has given rise to one of the most protracted discussions in all the domain of the law pertaining to the relative duties of carriers and passengers ; each side to the controversy naturally contending for a more or less rigid application of the peculiar rule contended for by them. It may be of .interest to present here at least a partial list of cases relied upon by both parties to the controversy, for the purpose of giving a better insight into the real nature of the controversy. In support of appellee’s view, the following citations are made: St. L., A. & T. R. Co. v. Mackie, 9 S.W. Rep. 451; Mo. Pac. R. Co. v Martino, 18 S. W. Rep. 1069; G. C. & F. R. Co. v. Rather, 21 S. W. Rep. 957; K. C. etc. R. Co. v. Riley, 24 Am. St. Rep. 309; Ga. R. & B. Co. v. Dougherty, 22 Am. St. Rep. 499; Head v. Ga. Pac. R. Co. 11 Am. St. Rep. 438; B. & O. R. Co. v. Bambrey, 16 Atl. Rep. 67; Hufford v. G. R. etc. R. Co. 8 Am. St. Rep. 859; U. Pac. R. Co. v. Pauson, 70 Fed. Rep. 585; N. Y. L. E. & W. R. Co. v. Winter, 143 U. S. 60; Sloan v. S. Col. R. Co. 43 Pac. Rep. 320; L. & N. R. Co. v. Gaines, 36 S. W. Rep. 174; Phila. W. & B. R. Co. v. Rice, 21 Atl. Rep. 97; Muckle v. Rochester R. Co., 79 Hun, 33; Trice v. C. & O. R. Co., 21 S. E. Rep. 1022; Gulf City & S. R. Co. v. Halbrook, 33 S. W. Rep. 1028; Railway Co. v. Dean, 43 Ark. 529, and others cited by appellees’counsel. In support of appellant’s contention, its counsel cite McKay v. O. R. R. Co., 34 W. Va. 65; L. & N. R. Co. v. Fleming, 14 Lea (Tenn.), 128; Peabody v. O. R. Co., 21 Ore. 121; Poulin v. Canadian Pac. R. Co., 52 Fed. Rep. 197; Mosher v. St. L., I. M. & S. R. Co., 127 U. S. 396; ib. 23 Fed. Rep. 328; Frederick v. Marquette R. Co., 37 Mich. 342; Yorton v. Milwaukee R. Co., 54 Wis. 234; Townsend v. N. Y. C. & H. R. Co., 56 N. Y. 295; Hibbard v. N. Y. & Erie R. Co., 15 N. Y. 455; McGowan v. Morgan’s La. & T. R. & S. Co., 41 La. An. 732; Shelton v. L. S. & Mich. R. Co., 29 Ohio St. 214; Downs v. N. Y. & N. H. R. Co., 36 Conn. 287; St. L. & S. F. R. Co. v. Brown, 62 Ark. 254; Rose v. W. & N. R. Co., 106 N. C. 168; Bradshaw v. S. Boston R. Co., 135 Mass. 407.
Some modifications of the rule, as contended for by each party to the controversy, have been attempted, but efforts to reconcile the two h^ve not, so far, been crowned with any great degree of success. There is this much to be said, however, and that is that the tendency of more recent decisions is towards at least a conservative view of the principle contended for by appellee’s counsel; and we adopt that in this case, to wit, that, notwithstanding the conductor has only carried out the company’s rules and regulations, and these are reasonable, and he therefore may be exonerated from blame personally, yet, as the company, through its ticket agent acting for it, was guilty of doing that which produced all the injury the plaintiff may have suffered from being put off the train, it is liable for such, and cannot shield itself behind the faithfulness of its servant the conductor, for its negligence in not delivering a proper ticket to the plaintiff, and has not only injured the plaintiff, if indeed he was injured, but placed the conductor in the attitude of participating in the wrongdoing, while yet performing his duty personally, while of course ignorant of the wrong done to the plaintiff, if any was done.-
In the case at bar, the only error committed by the conductor personally, so far as the evidence shows, was in putting plaintiff off the train at another place than a regular stopping place or station, but for this error of itself, if unattended by unnecessary force or ill treatment, the damages would .be only nominal. St. L., I. M. & S. R. Co. v. Branch, 45 Ark. 524.
The conduct and manner of the conductor in informing the plaintiff that he would have to pay his fare, for the reason that his ticket did not call for his passage to Malvern, or else get off the train, was equivalent to an expulsion, in the legal sense, and the plaintiff was required to do no more than he did do as a protest against the expulsion, and did right in getting off the train when the same was stopped for that purpose; and not only so, but might not have been justified in making greater resistance, at least further resistance such as might have occasioned further injury to himself. We think, therefore, that plaintiff is entitled to all damages that may have grown out of his expulsion, such as for the delay in completing his journey, for the time and trouble of having to walk back to the Hot Springs depot, and for such humiliation as he was made to undergo by being put off. These damages are all, however, only compensatory, unless the element of malice, recklessness or wantonness entered into the motive with which the injury was done, if done at all.
In the course of the trial, the court, at the instance of the plaintiff, gave the following instruction over the objection of the defendant, to-wit: “7. If you find for the plaintiff, you will assess his damages at a sum that will compensate him for the humiliation and inconvenience suffered by him, if any, by reason of being expelled from defendant’s train; and if, at the time of being expelled from said train, he was on his way to the bedside of a sick brother, in answer to a telegram informing him that his said brother was bad sick, and he notified the conductor in charge of said train of that fact at the time of being expelled from said train, then, if he suffered mental anguish on account of the delay in reaching his said brother, caused by Ms being expelled from said train, he is also entitled to compensation for such suffering caused by such delay, if any.” The mental suffering sought to be made an element of damage in the foregoing instruction has no direct connection with the tortious act which is the basis of the action, but, on the contrary,' is remotely connected therewith, and is too remote to enter in the suit as an element of damage. The subject of mental suffering alone as a cause of action was discussed at some length in the recent case of Peay v. Western Union Telegraph Company, 64 Ark. 538.
The instruction, for the reason stated, should not have been given, and for this error the judgment is reversed, and the cause remanded, with instructions to proceed not inconsistently herewith. It is unnecessary to consider other matters complained of as errors. | [
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Wood, J.
The court erred in sustaining the demurrer to the second paragraph of the answer. Assuming, for the purpose of argument, that the allegations of said paragraph are true, it follows that the sheriff acquired control of the property as much by reason of the levy of the attachment in favor of Looney as of that in favor of Dreyfus & Co., and it was his duty to retain control over it under said writ, as much so as under the attachment in favor of Dreyfus & Co., until he was legally deprived of such control. No bond was given in favor of Looney for the forthcoming of the property, in case his attachment was sustained. Consequently, in contemplation of law, the sheriff still had control of the property under the Looney attachment, when judgment was rendered sustaining same, and when execution was issued. The sheriff had the right to take the property by virtue of the lien of the Looney attachment, and to hold same under that attachment, and, if the appellee desired to retain possession of same against said attachment, he should also have given a forthcoming bond in favor of Looney. Moreover, there was nothing to prevent the sheriff from levying upon the property of A. Stewart, although in the possession of a third party, to satisfy an execution creditor of said Stewart. Because W. W. Stewart had given bond for the forthcoming of said property in an attachment proceeding was no reason why it should not be levied upon and sold under execution as the property of A. Stewart, if it really was his property, as it seems to have been. And, if it was not his property, and W. W. Stewart wished to test that matter, as against the execution creditor, there was nothing to prevent him from giving the bond required by Sand. & H. Dig.,- § 3088, which is as follows: “The sale of personal property upon which an execution is levied shall be suspended at the instance of any person, other than the defendant in the execution, claiming the property, who shall execute a bond to the plaintiff,” etc.
It would not be the province of W. W. Stewart to say “This property is not subject to execution as the property of A. Stewart now, because it has already been attached in my possession as his property, and I have giv'en bond to retain possession of same, and for its forthcoming in that case.” That would furnish only the greater reason why he should not suffer the property taken out of his possession under the execution. He could not raise the issue for the prior attaching creditor, or for the debtor, that the property was not subject to execution. That would be a matter for the creditors and the debtor to settle between themselves. If he claims the property, and wants to retain possession of same until the rights of property are are settled, the law points out the way, whether the property be' taken under attachment or execution. Sand. & H. Dig., §§ 406, 3088. When he has pursued neither course, as against the process which is sought to be enforced in favor of Looney, he can not claim that the sheriff and the execution or attachment creditor are trespassers for taking the property of A. Stewart under such process.
Again, that part of the second paragraph of the answer which undertakes to set up that the judgment obtained by Dreyfus & Co. against W. W. Stewart was a fraud as to Looney, although not aptly and clearly stated, was sufficient on demurrer, and constituted a good defense to this action. Looney was not a party to that judgment. If, as can be seen from the statements in this part of the answer, the judgment fixing the value of the property attached and claimed by W. W. Stewart at $1,000 was obtained by the collusion of said Dreyfus & Co. and the said Stewart, for the purpose of enabling the said Stewart to pay off the Dreyfus judgment and retain property of the real value of over $3,000, according to the appraisers, and to remove the same beyond the reach of the sheriff, so that it could not be subjected to the Looney judgment, said proceedings would constitute a fraud against Looney, which he had the right to plead and to establish as a defense to this action. “Judgments,” says Mr. Black, “entered into by the collusion or fraud of both parties to the action are void as to creditors, and may be attacked-in any collateral proceeding by them.” 1 Black, Judg. §§ 291-93.
Whatever this part of the answer lacked in the manner of statement to make it conform to the requirements of good pleading could have been corrected on motion. It showed a good defense. For the errors indicated, the judgment is reversed, and cause remanded with directions to overrule the demurrer, and for further proceedings. | [
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Griffin Smith, Chief Justice.
The Chancellor found that when Daisy L. Ramsey deeded lands to her son, George T. Ramsey, in 1937, she was mentally competent. The action to cancel was brought by those who, but for the deed, would have inherited various interests. Nine children were born to T. F. and Daisy Ramsey. Certain individuals doing business as Capitol City Lumber Company, and the company as an entity, were made defendants because George Ramsey had sold timber for which $5,000 was received.
Daisy Ramsey had been married to T. F. Ramsey. The two were separated “in the early ’20 V’. In 1928— a divorce having been decreed — the land now contended for was deeded to Daisy. Seemingly all parties at that time regarded Mrs. Ramsey as mentally competent, although there was testimony that as early as 1907 symptoms of nervousness were discernible. The witness who held this view thought another breakdown occurred in 1917, after which. Mrs. Ramsey improved, but by 1925 she was again noticeably affected. Several “bad-spells” were thought to have occurred from 1930 to 1935. Another witness thought Mrs. Ramsey got violent in 1934, and in 1936 and 1937 “she was in pretty bad shape”.
This was the general trend of testimony by persons called by the plaintiffs (appellants here), although some -of them did not notice any difference in Mrs. Ramsey’s condition between 1928 and 1939 when she was committed to the Louisiana State Hospital at Pineville. Witnesses supporting the defendant’s contention that his mother was competent had noted her conduct and habits for years and did not observe unusual tendencies or evidences of subnormal mentality. Opinion witnesses called by the plaintiffs, including a psychiatrist, did not think Mrs. Ramsey was capable of transacting business in 1937. Dr. Fletcher’s answer to hypothetical questions was in liiie with beliefs expressed by lay-witnesses; but on the other hand there was no direct proof that rational periods did not exist unless general terms used by some of the witnesses are to be construed in that manner.
A circumstance tending to show that after receiving the deed George Ramsey considered that his brothers and sisters had a remaining interest is the fact that after selling the timber he (George) offered Oblas W. Ramsey a check for $500 “for his part” if a quitclaim deed were delivered. Wilburn Ramsey asserted a similar offer, made in 1947. Wilburn testified that George settled with H. C. Ramsey, but H. C. did not say what he received.
A. L. Carson, justice of the peace who acknowledged the mortgage, executed by Daisy Ramsey to her son, testified that he had lived in Saline county since 1893 and had known Daisy ever since he came to the state. He lived within two or three hundred yards of her. Mrs. Ramsey came to him to have the acknowledgment taken and appeared “fair like myself- — never very brilliant”. From daily observations it was the opinion of this witness that Mrs. Ramsey acted like any ordinary person. Some of the defendant’s witnesses admitted they had heard that Mrs. Ramsey “had spells”, but these state ments were usually qualified by the remark that ‘ ‘ she was always normal when I met her ’ ’.
L. Jean Cook, a Texarkana lawyer, identified the deed Mrs. Bamsey executed in favor of George. Cook was a notary public in 1937 when Mrs. Bamsey and George came to his office. His stenographer prepared the deed. Mrs. Bamsey was not in the presence of this witness for a protracted period, but he did recall that after the business in hand had been finished there was talk about other matters. His best judgment was that Mrs. Bamsey was “all right mentally”.
It was George Bamsey’s contention that over a long period of time he had substantially assisted his mother. He had also helped personally and financially with the younger children. It was his mother’s idea that the $800 mortgage be executed to the end that he be protected. In 1937 when the deed was delivered Mrs. Bamsey was 57 years of age.
We know judicially that 1932 and succeeding years prior to World War II were marked by a financial depression and that lands generally were not readily marketable at a satisfactory price.
■ We do not, of course, know that a particular tract of land was not desirable at a specified time. But in the case at bar George Bamsey testified that some of the value evidenced by the mortgage came into existence when he improved the farm house in 1932. The rear portion of the main dwelling had been built in 1893. Two rooms were added in 1907, making'five rooms in all. The work of remodeling begun in 1932 continued for almost a year. It included an extra room, painting, canvassing and papering. A large front porch and a long, narrow back porch were added. With a new roof the improvements had cost a great deal more than had been anticipated. While this work was going on he bought all of the groceries for the family and paid some of Ms relatives for work they did. Sixty-four checks were referred to representing expenditures of more than $3,000 from 1943 to 1948. The plaintiffs, he said, knew that the work was being done and they stood by and per mitted it to continue. In summation Ramsey estimated that he had spent more than $9,000 for' improvements.
Mental capacity to dispose of property, and the existence or absence of undue influence, are factual considerations. There is convincing proof here that George was favored, but the evidence is just as convincing that he entertained greater solicitude for his mother’s welfare than did the other children, thereby meriting a somewhat higher degree of affection and material consideration than would otherwise have been the case. For 27 years George had been a postal transportation clerk receiving a regular salary. There is preponderating evidence that he had the financial means to do the things now claimed to have resulted in benefits to his mother, and the Chancellor could have found that the other children were either unable or unwilling to make cash expenditures during the depression years.
That Mrs. Ramsey was not under restraint prior to 1939 is undisputed, and probabilities disclosed by testimony are that in 1932 the land was not worth a great deal more than the amount for which it was voluntarily mortgaged.
An approved definition of mental capacity in its application to the issues here is to be found in Pernot v. King, 194 Ark. 896,110 S. W. 2d 539. It includes a recollection of the persons related to the grantor or testator by ties of blood and affection, “and of the nature of the claims of those who are excluded from participating in the estate”. There are citations to cases where in effect it was said that the testator must have capacity to retain in memory, without prompting, the extent and condition of his or her property, and comprehend to whom it is* being devised; and [she] must be capable of appreciating* the deserts and relations [to her] of others who are being excluded from participation in the estate.
Tested by these rules we are not able to say that the Chancellor reached an erroneous result. As a part of the record there appears a writing executed by Daisy Ramsey in 1937 about the time the deed was delivered. George Ramsey testified that he asked his mother for a memorandum of dates (births and deaths) respecting immediate members of the family. Paper, pen, and ink were supplied and she made out the list photographed below:
There is no contradiction of testimony given by George that the request was willingly complied with and the work executed without suggestion or prompting — that is, no contradiction other than that implied by law when an interested witness is testifying.
If, as the Chancellor believed, Mrs. Ramsey was able in 1937 to remember these names, dates, etc., and to follow a course of social demeanor avouched by many of the witnesses, her action in executing the deed was voluntary and she had sufficient mentality at that time to meet the tests heretofore referred to.
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Griffin Smith, Chief Justice.
Appellant was injured and his truck damaged when he undertook to cross St. Louis Southwestern Railway Company tracks in front of a mainline passenger train.
A “blinker” warning is maintained at the Main Street crossing in Stuttgart where the collision occurred. It was alleged that the railway company failed to operate the electrically-controlled flashlight system in such manner as to warn the plaintiff of an approaching train in sufficient time; that the company negligently failed to sound the locomotive whistle or ring the bell; that in passing through Stuttgart a local ordinance limiting the speed of trains to 20 miles per hour was violated; that the plaintiff was familiar with the flashlight system and depended upon it, to his injury. The demand was for $25,000 to compensate personal injuries and $1,475 for truck damage. From a jury verdict and the court’s judgment in favor of the defendant Browder has appealed.
Although there was no specific allegation of discovered peril, testimony was introduced from which the jury could have drawn an inference, hence the complaint will be treated as having been amended.
Appellant’s contentions he says are decisive go to alleged errors in instructions given or refused. It is argued that physical facts, (as disclosed by a chart used when the appeal was orally presented) when considered in connection with undisputed distances and the existence of a building it is claimed must have partially obstructed Browder’s view to his left whence the train came, are so clearly contrary to the jury’s findings as to negative fair consideration, revealing a verdict unsupported by substantial evidence. A careful examination of the record, however, shows that all essentials were disputed in circumstances where the fact-finders had a right to consider the interest, preferences, prejudices, and credibility of those who testified.
It is not contended that the blinker system was out of order. On the contrary appellant’s position is that because the accident happened as it did the contact mechanism which starts the flashlights must have been installed so near the crossing that one approaching the tracks did not have sufficient clearance after the warning was given. Excessive speed of the train is emphasized by testimony that the truck was carried about 200 feet and that the train did not stop within the distance operatives testified that it could be halted through use of the emergency brakes if the speed had not been in excess of 20 miles per nour.
It is accepted law that violation of a safety measure is not negligence per se, but only evidence of negligence. Duckworth v. Stephens, 182 Ark. 161, 30 S. W. 2d 840, cited in Missouri-Pacific Railroad Co. v. Dalby, 199 Ark. 49, 132 S. W. 2d 646.
Whether the traffic signal was sufficiently ‘ ‘ spaced, ’ ’ in point of automatic contact with the engine which brought it into play, went to the jury on testimony of a witness who saw the lights flashing, but crossed ahead of the train. He looked back and noticed that Browder was attempting to cross, and felt that he would be hit.
It is earnestly insisted that prejudice to the plaintiff resulted from the court’s failure to give certain instructions — particularly No’s 5, 3, and one that bore no number.
The unnumbered instruction would have told the jury that the railroad company was under a duty not to wilfully and wantonly injure a person on its tracks after the peril had been discovered, or after it should have been discovered through exercise of reasonable care. There was no evidence of wilful or wanton negligence and the instruction was properly refused.
Plaintiff’s requested Instruction No. 5 required train operatives to maintain a lookout for persons and property on the railway; declared the law to be that if through failure to keep such lookout a person should be killed or injured, or property damaged, the company would be liable, “. . . notwithstanding the contributory negligence of the person injured, where if such lookout had been kept [such operatives] could have discovered the peril of the person so injured in time to have prevented the injury by the exercise of reasonable care after discovery of such peril, and the burden of proving shall devolve upon said railroad to establish the fact that this duty to keep such lookout has been per formed.” Only a general objection was made to tbe court’s refusal to give tbis instruction.
Plaintiff’s Instruction No. 6 told the jury that tbe burden of proving contributory negligence was upon tbe railway company, “. . . and if you find that tbe . . . defendant . . . has failed to prove by a preponderance of tbe evidence . . . that tbe plaintiff was guilty of contributory negligence, then you will find for the plaintiff on the question of contributory negligence.”
Tbis instruction, it will be noted, served two purposes: It told the jury that tbe burden was upon tbe railway company to establish tbe plaintiff’s contributory negligence; and it also directed a finding in tbe plaintiff’s favor on tbe single issue of contributory negligence unless tbe defendant had produced preponderating evidence that the plaintiff was guilty of such negligence; and, furthermore, tbe instruction was “binding” on that issue.
Now turning to Instruction No. 10, given at tbe defendant’s request, we find tbis language: “If you find that as plaintiff approached the crossing the signal lights were working, or that a warning was given by tbe blowing of tbe whistle or tbe ringing of tbe bell on tbe engine, and that if plaintiff bad looked be could have seen tbe approaching train and could have stopped bis truck in time to have avoided tbe collision, and that be failed to exercise such care and caution, your verdict must be for the defendant.”
Tbis, of course, was a binding instruction and, on the issue of negligence, it does not take into account tbe degree of defendant’s negligence, discovered peril, speed of the train, etc.
We have held that a so-called binding instruction that omits an essential element is not cured by giving correct instructions dealing with the phase in controversy. Missouri Pacific Railroad Co. v. Burks, 196 Ark. 1104, 121 S. W. 2d 65. But in Hearn v. East Texas Motor Freight Lines, 219 Ark. 297, 241 S. W. 2d 259, it was said that instructions must he considered as a whole, and if, when so considered, the legal issues presented are properly explained, no prejudice results.
In the Hearn case a binding instruction dealt with violation of a safety statute. The appellant insisted that the direction, “and if you find that the plaintiff was guilty of any negligence, however slight, your verdict must be for the defendant,” omitted an element essential to a proper statement of the rule of contributory negligence — that to defeat recovery the claimant’s negligence must have caused or contributed, in some degree, to his own injury.
The opinion continues with the statement that contributory negligence was succinctly defined in a previous instruction, for “after digressing from this particular definition only momentarily, and without material deviation from the related issues, the court gave Instruction No. 5 [the one complained of]. This was followed immediately by further admonition which defined ordinary care and connected it with the facts in issue. . . .We conclude, therefore, that failure to fully redefine contributory negligence in appellee’s Instruction No. 5 was not error.”
In the case at bar we have a somewhat stronger case in that appellant himself had been given a binding instruction dealing with contributory negligence in which he omitted any mention of the defendant’s degree of care. The Hearn case is cited in Kendrick v. Rankin, 219 Ark. 736, 244 S. W. 2d 495, where the facts were different.
There was no error in refusing Instruction No. 3, offered by the plaintiff. Its substance was covered by defendant’s Instruction No. 8. Other errors are commented on, but we are unable to say that any was prejudicial, hence the judgment must be affirmed. | [
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Robinson, J.
Appellants, C. J. Saulsberry, et al., filed suit to cancel an oil and gas lease and have appealed from a decree in favor of the appellees, who are owners of a lease executed in 1922; and Saulsberry is the lessee named in a lease executed in 1951 on the same property. The chancellor’s decree sustains the 1922 lease and cancels the 1951 lease.
On April 5, 1922, Tennyson Allen and wife, parents of the appellants, Joe Allen and Marion E. Norton, executed to H. M. Johnson, trustee, an oil and gas lease on thirty acres of land, described as the south half of the southeast quarter of the southeast quarter of section 18, township 17 south, range 14 west, Union County, Arkansas, and the northeast quarter of the southeast quarter of the southeast quarter in the same section. The lessees drilled four wells, and perhaps a fifth one, on the thirty acres. These wells were all drilled to what is known as the Nacatoch sand. There was no production of any consequence from any of the wells, except one located on the north ten acres of the tract. According to appellants’ contention, this well ceased to produce in 1930. At that time, or at a later date, the derrick was destroyed by fire. In 1934 the well was again put into production and has continued to produce since then. Through various assignments the appellees are now owners of the lease.
In 1951 appellants, Joe Allen and Marion E. Norton, executed to appellant, Saulsberry, a lease on the property. Saulsberry also owned a lease on an adjoining ten acres on which he drilled down to what is known as the Glenrose sand and brought in a good well. This was the first well that had produced oil below the Nacatoch sand, with the exception of what is known as the Stokes well, located about three-quarters of a mile northwest of the property here involved. The Stokes well was drilled about the year 1926 and produced oil for some time thereafter. About fourteen or fifteen other wells were drilled on properties surrounding the Stokes well, none of which was productive. As soon as the appellees learned that Saulsberry was likely to bring in a well in the Glenrose sand, they secured a permit to drill to that sand on the south twenty acres of their lease; but when this suit was filed, asking that the lease be cancelled on the south twenty acres, but not asking for cancellation of the northeast ten acres, they had the permit amended to permit them to drill to the Glenrose sand on the northeast ten acres and produced a well.
Appellants contend that there has been a complete, or a partial forfeiture of the 1922 lease for three reasons:
(1) —The lease terminated upon cessation of production on the leased premises in 1930;
(2) —If there has not been a termination of the entire lease because of cessation of production, then there has been an abandonment, so far as the south twenty acres are concerned; and
(3) —Lessors were not required to give notice of the forfeiture but, if so required, such notice, was given.
As to the first contention made by appellants, that the lease terminated in 1930 due to a cessation of the production of oil, it is not clear from the record just when there was a complete stoppage of production; but accepting appellants’ claim that it was for a period extending from 1930 to 1934, the fact remains that the derrick had been destroyed by fire and the lessees rebuilt it, putting the well into production. Apparently lessors made no claim during that time, or for some fifteen or twenty years thereafter, that the lease had terminated by reason of the well being shut down in 1930. Seemingly, the lessors considered that the cessation of production in 1930 was temporary; they made no objection to the lessees rebuilding the derrick and putting the well into production. In fact, they made no claim to the lessees of a forfeiture until the amended complaint was filed in this case, about twenty-one years after the year 1930, the date they now say the lease terminated; and, furthermore, appellants do not even now ask for cancellation of the lease as to the northeast ten acres of the tract on which is located the only well that was producing in 1930, when there was a cessation of all production until 1934.
In the ease of Reynolds v. McNeil, 218 Ark. 453, 236 S. W. 2d 723, this court said:
“The chancellor was right in refusing to declare a forfeiture. The lessee and his assignees had spent large sums in successfully attaining production within the primary term of six months. When that event occurred a valuable estate vested in the lessee, to continue as long as oil or gas was produced in paying quantities.
“The appellants contend, however, that the estate terminated at the end of the primary term because oil was no longer being produced in commercial amounts. According to the weight of authority, and we think the better view, when the lessee’s estate has vested it does not automatically terminate upon a temporary cessation of production. In ventures of this kind the lessee makes a very .substantial investment and bears the entire loss if the well is unproductive. It would be harsh and inequitable to say that upon a temporary stoppage of production the lessor can declare a forfeiture and take over the property himself. Hence most authorities- allow the lessee a reasonable time within which to reinstate paying production. For instance, in a case where the derricks blew down in a heavy storm, and later burned, the lessor was not permitted to declare'the lease at an end because his royalties had ceased for the time being.”
Next is appellants’ contention that the inactivity of the lessees was a breach of the implied covenants of exploration and development as to the south twenty acres. The lessees drilled four wells for certain, and perhaps a fifth one, all to the Nacatoch sand. The test, as to whether there has been a breach of the implied covenant to explore and develop, is whether the lessee has acted with reasonable diligence so as to produce oil and gas upon the entire tract. Standard Oil Company of Louisiana v. Giller, 183 Ark. 776, 38 S. W. 2d 766. In Smart v. Crow, 220 Ark. 141, 246 S. W. 2d 432, this court said:
“The lessee must act for the mutual advantage of both the lessor and lessee, and must consider not only Ms interest but, also, the interest of the lessor. He must perforin the contract so as to further the original purpose and intention of the parties. Ezzell v. Oil Associates, 180 Ark. 802, 22 S. W. 2d 1015. However, in the Ezzell case, the court said: ‘Of course due deference should be given to the judgment of the lessee as operator to determine how many wells should be drilled, but he must use sound judgment in the matter and cannot act arbitrarily. He must deal with the leased premises so as to promote the interest of both parties and to protect their mutual interest.’ ”
It cannot be said that the lessees did not exercise sound judgment or that they acted arbitrarily. Only one well drilled to a depth lower than the Nacatoch sand which produced any oil was the Stokes well drilled in 1926. This well was located about three-quarters of a mile northwest of the lease here involved'; and, moreover, fourteen or fifteen wells were drilled around the Stokes well to the same depth, and none of these wells was productive. A map was introduced in evidence in this case which shows dozens of wells drilled all around and in the immediate vicinity of the lease under consideration. A great majority of all these wells have ceased production. There is no evidence whatever in the record of any existing fact, or theory, whereby it can be said that the lessees have failed to use reasonable diligence, or have acted in an arbitrary manner by not drilling below the Nacatoch sand until Saulsberry had done so on an adjoining tract. Just what fact, or theory, caused Saulsberry to drill to a greater depth is not shown in the record. On this phase of the case appellants rely on Smith v. Moody, 192 Ark. 704, 94 S. W. 2d 357; but there the situation was entirely different. Three hundred and forty acres were involved in the lease on which there had been drilled only eight wells, seven of those being on the west property line and one on the north. It was the contention of the lessees that other wells could not be drilled and operated on the property except at a great loss. This court said: “This contention may be disposed of by saying that, if true, the lessees have* not been damaged by tbe cancellation of so much of tbe contract of lease as cannot be profitably performed.”
In the case at bar at least four wells were drilled on the thirty acres, and at least one well was drilled on each ten-acre tract, with the exception of the southwest ten acres, and that particular area was completely surrounded by non-productive wells. It is settled that the lessee: must act for the mutual advantage of both the lessor and lessee; must perform the contract so as to further the original purpose and intention of the parties; must use sound judgment in the matter and cannot act arbitrarily. Whether the lessee has acted in such manner is to be determined from all the facts and circumstances in the case. Here, after considering such facts and circumstances, the chancellor found in favor of the lessee; and we cannot say the decree is contrary to the preponderance of the evidence.
Finally, appellants say that the lessors were not required to give notice of the forfeiture, but, if so required, such notice was given. Since it is being held that the chancellor did not err in holding there was no forfeiture, notice of appellants’ contention, in that respect, is of no consequence.
Affirmed.
Mr. Justice Millwee and Mr. Justice Ward dissent. | [
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Battle, J.
On the 31st of October, 1894, Overstreet & Son purchased from Beal & Fletcher Grocer Company goods and merchandise, on a credit, at the aggregate sum and price of $420.17, which, added to the sum they were already owing to the Grocer Company, made their indebtedness to it amount to about $1,000. On the 6th of November, in the same year, they failed in business. On the 8th of the latter month the Grocer Company sued Overstreet & Son for the amount of their indebtedness, including the $420.17, and caused an order of attachment to be issued against them, upon the ground that they had sold, conveyed and otherwise disposed of their property, and suffered and permitted it to be sold, with the fraudulent intent to cheat, hinder and delay their creditors, and were about to sell and convey their property with such intent. Afterwards, about three or four days, the Grocer Company brought an action against B. G. White, sheriff, to recover the possession of the goods and merchandise sold on the 31st of October, 1894, they having been seized by the sheriff under orders of attachment sued out by creditors of Overstreet & Son, and being then held by him by virtue of such seizure.
Did Overstreet & Son fraudulently create the debt contracted by the purchase of the goods on the 31st of October, 1894, and, if so, did Beal & Fletcher Grocer Company elect to enforce the collection of the debt by process of law, with a knowledge of the facts necessary to know in order to enable it to make an intelligent choice of remedies, or did it so elect after such knowledge could have been acquired by it by the exercise of reasonable diligence after it was put upon inquiry or notice as to such facts? These were the issues tried in this action.
The evidence adduced at the trial tended to prove the following facts: Overstreet & Son were merchants', and did a mercantile business at Plummerville, in this státe, for many years. During this time they contracted many' debts, amounting to a considerable sum. They became insolvent, their liabilities largely exceeding their assets. While in this condition, on the 3d of August, 1894, they represented to the manager of Bradstreet’s Mercantile Agency, at Little Rock, Arkansas, that their assets amounted to $46,000, and their liabilities to $12,500; and on the 4th of October, 1894, represented to R. G. Dun Mercantile Agency, at Little Rock, that their assets amounted to $37,100, and their liabilities to $6,600. These reports were evidently made for the purpose of obtaining credit from the merchants patronizing the agencies. Beal & Fletcher Grocer Company were subscribers of the R. G. Dun Mercantile Agency. When it sold goods to Overstreet & Son on the 31st of October, 1894, it regarded them as solvent. It based this opinion upon the report to the R. G. Dun Mercantile Agency and the information received from its agents. At the time they purchased the goods, on the 31st of October, Overstreet & Son represented to the traveling salesman of the Grocer Company that they were “in good shape, and thought the worst time of the business had blown over, and everything was all right,” and thereby induced the salesman to believe they were solvent and to sell them the goods. On the 6th of November following, they sold what was represented to be their entire stock of goods to one of their creditors, to pay their indebtedness to him. A part of their goods, including a portion of those purchased from the Grocer Company on the 31st of October, was found, by the sheriff, concealed in the house of a colored man, about a mile from Plummerville, and was seized under the order of attachment sued out by their creditors.
The order of attachment sued out by the Grocer Company on the 8th of November was based on the affidavit of J. T. Beal, its president, in which he swore that Overstreet & Son had sold and conveyed and otherwise disposed of their property, and suffered and permitted it to be sold with the fraudulent intent to cheat, hinder and delay their creditors, and were about- to sell, convey, and dispose of their property with such intent. He (Beal) testified in the trial of this action that he knew as much, at the time he made this affidavit, about the disposition of property by Overstreet & Son, with the intent to cheat their creditors, as he did afterwards, except he had not discovered what disposition had been made of the goods his company sold on the 31st of October; that, after making the affidavit, he saw goods on a wagon, and recognized them as the goods sold by his company, and learned that they had been concealed; and that thereupon he went to Little Rock, in order to employ an attorney, and sent Mr. Cryer to identify the goods. Cryer testified that he identified the -goods in controversy as a part of those sold on the 31st of October, “about two days after the failure.”
The plaintiff in this action, the Grocer Company, was allowed to, and did, introduce as evidence, over the objection of the defendant, the book containing the assessment of personal property, in order to show the assessments of Overstreet & Son, and of each of them, and proved that other parties had sold them goods about the time they failed, and afterwards replevied the same.
The court, sitting as a jury in the trial, found that Over-street & Son purchased the goods in controversy from plaintiff, with the fraudulent intent not to pay for the same; that plaintiff, at the time it brought the attachment suit against “Over-street & Son, had no knowledge that said Overstreet & Son had purchased said goods with the fraudulent intent not to pay for the same; and that said plaintiff is not estopped by said attachment suit from reclaiming the goods in controversy,” and rendered judgment accordingly. The defendant filed a motion for a new trial, which was overruled, and he appealed.
Among the grounds set up in the motion for a new trial, the defendant alleged that the finding of facts by the court was not sustained by any evidence. Beal, the president of the Grocer Company, testified that he knew all the facts as to the fraudulent disposition of property by Overstreet & Son at the time attachment proceedings were instituted by his company that he afterwards knew, except that he had not ascertained where the goods it had sold then were. No other evidence was adduced to show that the debt contracted by the purchase of the goods on the 31st of October was fraudulently created, except that which showed a fraudulent sale of property by Overstreet & Son, and was necessary to sustain the attachment of the Grocer Company, and this was known to Beal at the time he made the affidavit-upon which the attachment was based. That being true, the finding of the court that the Grocer Company, at the time it sued out the order of attachment, had no knowledge that Overstreet & Son purchased the goods in controversy with the fraudulent intent not to pay for them is unsupported by evidence; and the findings of facts by the court are not sufficient to sustain the judgment.
If, with a knowledge of all the facts necessary to enable it to elect intelligently between the remedy allowed to enforce the payment of the debt contracted by the purchase of the goods on the 31st of October, 1894, and that provided for the recovery of the goods, appellee instituted the action to collect the debt, it thereby ratified the sale, and could not thereafter institute and maintain an action to recover the goods. Before it could, however, act judiciously or intelligently in the selection of remedies, it would be necessary for it to ascertain whether the goods could be found and identified. Unless this could be done, a rescission of the sale and an action to recover the goods would be of no avail. If, therefore, the Grocer Company did not have this information at the time it brought the suit to recover the amount due on the debt, or was not put upon notice or inquiry which, if prosecuted with reasonable diligence, would have led to the acquisition of the same, and afterwards found the goods and identified them, it was not bound by the action it had first instituted, but could sue for the possession of the goods, and recover them by making the necessary proof. Butler v. Hildreth, 5 Metc. (Mass.) 51; Bigelow, Fraud, 434-438.
There is no contention that the Grocer Company was put upon notice or inquiry as to any facts it did not know when it instituted the first action. The court did not find as to when it ascertained that the goods could be found and identified, and we are unable to determine whether it acquired this information before, after, or at the time the action for the price of the goods was commenced. We cannot therefore say that the judgment of the court was sustained by the undisputed facts, and upon that ground affirm it.
The book of assessments was competent evidence to show the value of the personal property of the firm of Overstreet & Son and its members, and is entitled to receive such credit as the jury might give to it. Winter v. Bandel, 30 Ark. 362.
The evidence as to the institution of suits for the recovery of property sold to Overstreet & Son by other creditors was incompetent, and should have been excluded
As to the evidence of sales made to Overstreet & Son by other creditors about the time the goods in controversy were sold by the Grocer Company, it is sufficient to say that the general rule as to such evidence is that another act of fraud by a person is admissible to prove the fraud charged against him only when .there is evidence to show that the two are so connected as to make it appear that he had a common purpose in both, — that the same motive may be reasonably imputed to him in both. Jordan v. Osgood, 109 Mass. 457; Hall v. Naylor, 18 N. Y. 589; Bradley Fertilizer Co. v. Fuller, 58 Vt. 315.
The judgment of the circuit court is reversed, because the finding of facts were, in the manner before stated, not supported by any evidence; and the cause is remanded for a new trial.
On Motion eor Reconsideration.
Opinion delivered May 21, 1898.
Battle, J.
The appellee moves the court to reconsider its judgment on the ground, among others, that the defendants, the appellants here, did not except to the findings of facts by the circuit court.
The special findings of fact by the court were within the issues joined by the parties in the action, and all the facts so found were essential, and, if true, were sufficient to sustain the judgment of the court, and there was no necessity or reason for finding any other fact or facts. The only objection to it is that it was not sustained by the evidence. This objection could be presented only by a motion for a new trial. No exception was necessary for that purpose. Gardner v. Case, 111 Ind 494, 498; Dodge v. Pope, 93 Ind. 480, 483; Tarkington v. Purvis. 128 Ind. 182, 188; 2 Elliott’s General Practice, § 980. The statutes of this state provide that findings of facts by courts may be set aside upon motion for a new trial, when unsupported by sufficient evidence. Sand. & H. Dig., § 5839.
A motion was filed in this case to set aside the judgment of the court, and for a new trial, on the ground, among others, that the findings of facts by the court were contrary to the evidence. That was sufficient to raise the question as to whether or not the findings were sustained by sufficient evidence. Obermier v. Core, 25 Ark. 562; Woodruff v. McDonald, 33 Ark. 97; Nathan v. Sloan, 34 Ark. 524; Fordyce v. Russell, 59 Ark. 314, and Dunnington v. Frick Co., 60 Ark. 250, — cited by appellee,— do not militate against this view. In the case last mentioned, the court, sitting as a jury, found the facts, and then declared the law upon the facts so found. No exception was taken to the declarations of law, and the court held that, as there was no exception taken, the declaration could not be reviewed here. It did not hold that an exception, in addition to a motion for a new trial, was necessary to raise a question as to whether the findings of facts were sustained by sufficient evidence. The statute provides: “Upon trials of questions of fact by the court, it shall state in writing-the conclusions of fact found separately from the conclusions of law.” Sand. & EL Dig., § 5837. The fact that they are blended does not make it necessary to except to the conclusions of fact.
To show that there should have been specific exceptions taken to the conclusions of fact in this case, appellee cites King v. Ritchie, 18 Wis. 554; Thomas v. Mitchell, 27 Wis. 414; Mead v. Chippewa County, 41 Wis. 205; Allen v. Hutchinson, 45 Wis. 259; Lucas v. San Francisco, 28 Cal. 591; James v. Williams, 31 Cal. 211. In the states in Which these decisions were rendered, there are. statutes which provide for exceptions to conclusions of fact by the court. 2 Sanborn & Berryman’s Annotated Statutes of Wisconsin, § 2870; Lucas v. San Francisco, 28 Cal. 591, 596. The decisions were presumably based upon them (King v. Ritchie, supra; Lucas v. San Francisco, supra); but we have no such statutes in this state.
Appellee undertakes to show that undisputed facts sustain the judgment of the circuit court, independently of the findings of the court. We do not think so. If we are right, we cannot supply a finding as to such facts to uphold the judgment. Smith v. Los Angeles Immigration & Land Co-operative Association, 71 Cal. 289.
The motion for reconsideration is denied. | [
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Ward, Justice.
The record shows the following to be substantially the facts and circumstances in this case:
On April 10, 1931, Mrs. Corrine Young, being the owner of the east half of lots 5 and 6, block 43, Fontaines ’ Addition to Walnut Eidge, executed a mortgage on said lots to the Georgia State Savings Association to secure her note in the sum of $1,750. Due, perhaps, to the depression, she made only a few payments on the note and consequently became delinquent on her payments to the loan company and also on improvement taxes on the property.
Later, Mrs. Young married Marvin Jones and they also allowed the monthly payments and interest to accrue until on October 1, 1939, the amount due Georgia State Savings Association, including interest and advances for insurance and state and county taxes, was $2,888.50, and, in addition, they owed a considerable amount for delinquent taxes to Street Improvement District No. 2 of Walnut Eidge.
By agreement of all parties concerned it was arranged, in effect, for appellants to buy the property from Mr. and Mrs. Jones for approximately $500 less than the amount then due and to apply to the Georgia State Savings Association for a loan in the required amount. Accordingly, on August 26, 1939, appellants signed an application, on a regular form, to said loan company for a loan in the amount of $2,300. This application showed there were delinquent taxes due Improvement District No. 2 in the amount of $690.30 for the years 1930 to 1939, inclusive, which amount applicants [appellants] assumed and Georgia State Savings Association agreed to later advance if necessary to protect its title.
On August 30, 1939, Jones and his wife executed a warranty deed conveying the described property to E. O. Tolson for the consideration of $1.00 and the agreement of the grantee to refinance the original loan mentioned above. The deed stated that the grantee would assume all unpaid taxes due said District No. 2.
On October 4, 1939, appellants executed a note and deed of trust to said loan company in the amount of $2,300, payable $23.64 per month for 144 months, including principal and interest. It was explained that the reason the loan company did not make a loan sufficient to also pay the improvement taxes was that it appeared there was a chance to settle with the Improvement District for a less amount.
Appellants kept up their monthly payments on the loan, but paid nothing on the delinquent taxes to the Improvement District. Therefore, Georgia State Savings Association, under a provision of the deed of trust, advanced the necessary money by two checks in 1940 and 1941. These checks, for $90.30 and $600, were made out to and endorsed by R. B. Warner, Receiver for the Street Improvement District, and E. C. Tolson.
On December 23, 1949, Georgia State Savings Association assigned its note and deed of trust to appellee and at that time so informed Tolson by letter in which he was reminded it had paid the delinquent taxes mentioned above, and advised him to have the loan refinanced.
Appellants made the last monthly payment under the terms of the deed of trust [but nothing on the advances] on October 4,1951, and so notified appellee. Due to an error in bookkeeping, appellee executed and mailed to appellants a full release. There is no contention by appellants that this was not an error on the part of appellee.
Appellee made demand on appellants for the money advanced for the payment of said delinquent taxes and interest thereon. After some days of fruitless negotiations appellee filed suit to foreclose its mortgage. The lower court ruled in favor of appellee and, on appeal, appellants urge two grounds for a reversal.
First, appellants quote extensively from the ledger sheet showing the status of the Corrine Young loan at the time they took title, in an attempt to show Georgia State Savings Association made excessive [not usurious] interest charges. This contention has no merit because appellants, in effect, bought the property at a stipulated price of $2,300. This was what they evidently thought the property was worth, considering the delinquent tax situation, and this is the amount they borrowed from the loan company. If appellants desired to buy the property cheaper than $2,300 they should not have accepted the deed from Mr. and Mrs. Jones and should not have signed the note and deed of trust to the loan company. Moreover, there is nothing in the record to show that appellee had knowledge of any such overcharges, if in fact they existed, and so must be considered an innocent purchaser for value.
Second, neither can we. agree with appellants’ contention that appellee’s suit is barred by the statute of limitations, as an open account. Appellee’s right to reimbursement arises from the terms of the deed of trust signed by appellants, and would not be barred until five years after the last payment became due. The advancements were made pursuant to certain provisions contained in the deed of trust, the pertinent parts of which were as follows:
(a) “. . . and thus secure . . . the prompt payment of any other or additional indebtedness owing by the borrower to lender . .
(b) “And in further trust to secure the payment of any other or additional indebtedness of whatever kind or character that may be owing by the borrower to the lender, any additional loan or loans made by lender to borrower ... up to the time of foreclosure of this deed of trust.”
(c) “And in default of payment of installments of principal and interest ... or non-payment of insurance premiums, taxes, assessments, or other charges. . . .” the trustee could sell the property. The documentary and oral testimony leave no doubt that appellants knew at the beginning and all along they were obligated to pay the delinquent assessments, and they accepted the money [by endorsing the checks] from the loan company for that purpose.
' Advancements made by the loan company under the facts and circumstances set forth above became a part of the principal debt and were secured by the deed of trust. In the case of Kansas City Life Insurance Co. v. Marsh, 196 Ark. 1121, 121 S. W. 2d 81, the court rejected a contention that a payment by a mortgagee as an advancement for taxes under a mortgage was not a payment on the principal debt so as to extend the statute of limitations. In this connection the court, at page 1126, said:
“It is contended that this shows a payment on taxes only and not on the notes, and, therefore, there was no revival of the debt. We cannot agree that such is the effect, but are of the opinion, that these payments should be treated as payments on the whole debt existing at that time, including interest, taxes, insurance, etc., all secured by the mortgage along with the notes.”
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Griffin Smith, Chief Justice.
The two cases — one instituted by A. J. McAmis and the other by Tom Fiser— involve the same primary factor: that is, Does Act 214 of 1943 (which by § 4 denounces violation as a felony) prohibit a state officer, agent, employe, or any employe of a state agency, from rendering compensable services or selling goods, wares, or merchandise to a department of the .state where, in respect of such purchasing department or agency the seller has no interest or connection other than that which might be implied from the fact of membership upon the board or commission that is not the purchaser?
Stated differently, Was it the legislative intent to circumscribe the conduct of every board and commission member to such an extent that no relationship whatever involving possibility of profit to such non-purchasing, member or to any corporation, partnership, or association in which he was interested, might accrue?
An example would be this: A is a member of the board of trustees of B. college and owns a share of stock in an insurance corporation. The University of Arkansas, for wholly practicable purposes and admittedly, in a particular case, where convenience is best served and rates of all companies are identical, purchases a policy of insurance covering University property. A does not know that the transaction has occurred and through exercise of reasonable diligence would not have been informed. His only financial advantage comes through dividends normally payable by the insurance company. Query: Has A committed a felony?
The McAmis complaint first identifies Yance Clayton as treasurer of state, J. Oscar Humphrey as auditor, Lee Boy Beasley as comptroller, Dean B. Morley as commissioner of revenues, and Carl Parker as state purchasing agent. It is conceded that at the time the questioned transactions occurred Truman Baker was a member of the state highway commission, Doyne Hunnicutt was an officer of the state police commission, J. T. McCool was a trustee of Arkansas A. '& M. College, and that Baker, Hunnicutt, and McCool had sold merchandise or rendered compensable services to an agency of the state other than.the board or commission of which he was a member.
Baker is owner of a Chevrolet agency managed by Hunnicutt. Through Hunnicutt’s activities motor supplies, equipment and materials were sold to state departments. An inventory showing substantial dealings by Hunnicutt arid Baker upon the one hand and the state police department upon the other is attached as an exhibit and the sales are not denied.
McCool, as agent for Remington Rand, Inc., was instrumental in selling the department of revenues a variety of supplies, including the equipment and materials required to put into operation the Certificates of Title Act relating to automobile ownership.
The Fiser complaint names State Treasurer Clayton and includes as defendants Delta Products Company, Office Supply and Equipment Company, and Wright Service Company, Inc. Delta, operating in Mississippi county, had sold to Arkansas Tuberculosis Sanatorium a quantity of oleomargarine for which the sanatorium was charged $392.40. This sale was made pursuant to a contract made by the state purchasing agent after public bids had been invited through statutory advertisement. The purchasing agent’s contract with Delta was void, says the complaint, because J. H. Crain owns stock in Delta and Crain was a member of the highway commission.
Office Supply & Equipment Company, according to the complaint, had sold $97.31 worth of merchandise to the revenue department, and McCool was an officer of the equipment company and owned stock in the corporation.
Wright Service Company supplied the highway department with automobile tires to the extent of $36.25, and, it is urged, although the purchase was made “in the manner prescribed by law at what is known as the ‘state price,’ which is a special price offered . . . and is lower than the usual retail market,” yet J. Ed. Wright, then an officer of the selling corporation, was a member of the state racing commission ‘ ‘ and will benefit and profit directly or indirectly by said sale.”
The prayer in all of the cases was that (a) if the auditor had not converted the vouchers into warrants that he be restrained from doing so; or (b) if the warrants had been issued, the treasurer should be enjoined from paying them. As to some of’ the items in controversy it was stipulated that no effort to collect would be made until termination of the litigation.
Further transactions with Remington Rand were developed with proof showing a wide range of dealings, one of the billings being for $78,840.32. It was sought by the plaintiff in the Remington Rand-McCool dealings to show that the cost of Dexigraph paper used for filming was excessive and that non-competitive bids were accepted; also that I. B. M. machines were cheaper and more practicable. To these suggestions the defendants asserted that I. B. M. machines were installed on a rental basis; that while the prices charged for camera supplies, if considered alone, might be above the market price if it should be assumed that films and paper made by other manufacturers would be suitable, yet against this prima facie figure there were other considerations, such as installation of the necessary equipment and the right to its use while the certificates were being produced.
It is first argued that Act 214, if given the construction contended for by those seeking the injunction would impair § 18 of Art. 2 of our constitution, and § 3 of Art. 2; also that it would violate the Fourteenth amendment to the U. S. constitution. The reasoning is this: Following the substantive language of § 4 of Act 214 relied upon by those seeking the injunctions, § 5 provides that none of the Act’s provisions shall apply “. . . to the offices, and appropriations of the secretary of state, attorney general, auditor of state, treas urer of state, lieutenant governor, state land commissioner, supreme court, the supreme court clerk, the circuit or chancery judges and prosecuting attorneys, or the general assembly.”
Attention is directed to the language of § 18, Art. 2 of the constitution and its mandate that “The general assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.”
We have concluded that it is not necessary to say whether any of the constitutional provisions afford the relief requested. The answer to essential issues is found in the Act itself. Section 4 is subheaded, “Pre-Authorization of Expenditures.” The pertinent portions of the section the plaintiffs sought to invoke begin with the fourth sentence of the fifth paragraph, (see p. 456 of the Acts of the Fifty-Fourth General Assembly, 1943) and are as follows:
“Neither the comptroller nor any member of his department, nor any officer, agent, or employe of any agency of the state making purchases shall be financially interested, directly or indirectly, in any contract ©r purchase order for any supplies, materials, equipment used by or furnished to any department or agency of the state government, nor shall the comptroller, any member of his department, or any agent or employe of any agency or department of the state, subject to the provisions of this Act, accept or receive, directly or indirectly, from any person, firm, or corporation to whom any contract or purchase order may be awarded, any rebate, gift, or otherwise any money or anything of value, or any promise, obligation, or contract for future reward or compensation. Any violation of this section shall be a felony and punishable accordingly.”
Throughout the measure the term “agency subject to the provisions of this Act” repeatedly appears. It is contended that there was no intent to bring within the enactment duties incumbent upon the purchasing agent, and the same construction is urged in favor of agencies required by prior laws to purchase through competitive procedure. We also pretermit a determination of this phase of the litigation.
We believe the answer is found, in § 4, into which it is not reasonable to read a legislative intent to make felons of persons who in many instances had no effective means of ascertaining facts which would render illegal a course of conduct otherwise not forbidden. By this we do not mean to say that the general assembly is without power to prohibit the comprehensive transactions alluded to in § 4 in those cases where the means of obtaining information as to violations were charted; nor is the state without power to declare an office or position vacant where, without information upon the part of the officer or agent, the line of demarkation has been crossed.
The Act’s primary function is clearly expressed in its title: “To provide for budgetary control, to require pre-purchase authority, and for other purposes.” Section 1 relates to a budgetary system. Administrative machinery for quarterly allotments is contained in § 2, while § 3 authorizes shifting of personnel and the transfer and sale of state-owned equipment. Section 5 creates the exceptions heretofore referred to and authorizes inter-administrative appeals. The whole tenor of the Act is what its title discloses — budgetary control and pre-purchase authority. The title reference to “other purposes” must be relied upon if the highly penal parts of § 4 are to be construed as the Attorney General and assisting counsel believe they should be. We find no persuasive support for this view.
Of course the legislature, in exercising the state’s police powers, has a wide discretion within which it may determine what the public interest demands, and what measures are necessary to secure and promote such requirements. The only limitation upon power to enact statutes tending to promote the health, peace, morals, education, good order, and welfare of the public is that the legislation must reasonably tend to correct some evil and promote some interest of the commonwealth not vio lative of any direct or positive mandate of the constitution, [or a mandate necessarily implied]. Harlow v. Ryland, 78 Fed. Supp. 488, 172 Fed. 2d 784. But this power — that is, the police power as the term is generally defined — is not without limitations. Bennett v. City of Hope, 204 Ark. 147, 161 S. W. 2d 186.
We are not trespassing into an area of unreasonable deduction by assuming that the 54th General Assembly acted with full knowledge that its power to prescribe and proscribe was not absolute, hence we must assume that the promulgation,of Act 214 was with full legislative understanding of its purposes and intents. The lawmaking body must have been aware of § 10 of Act 65 of 1929, Ark. Stat’s. § 76-215 by which members of the highway commission are required to swear or affirm (in addition to the constitutional oath) that they will not be interested either directly or indirectly in any contract made by the state highway commission, nor in the purchase or sale of any material, machinery or equipment bought for or sold by the commission while a member of said commission; that they will not be interested otherwise than as an official of the state in adding any road to the state highway system, or in the improving of any road by the state highway commission; nor in the appointment of any person to any position in connection therewith; “nor will I ever use any information or influence that I may have by reason of my official position to gain any pecuniary reward or material advantage to myself, or disclose such information that it may be used by others. So help me God.”
Here we find the policy-declaring power operating directly and through express language upon members of the highway commission; but nowhere is there a suggestion that a commissioner shall not own stock in a corporation or be interested in an enterprise that sells to another department of the state; nor would he ipso facto, (e. g.) become a criminal if Westinghouse Electric Company (in which he owned stock) should sell its product to the state hospital.
' The phraseology of an Act is the fundamental guide to legislative meaning and purpose, but it is language of the Act as a whole that must be read, ‘ ‘ and not the words of a section or provision in isolation.” Elizabeth Arden Sales Corporation v. Gus Blass Co., 150 F 2d 988, 161 A. L. R. 370, 326 U. S. 773. Again it has been said that statutes should receive a common sense construction, and where one word has been erroneously used for another, or where a word has been omitted and the context affords a means of correction, the proper word will be deemed substituted or supplied. Page v. Highway No. 10 Water Pipe Line Improvement District No. 1, 201 Ark. 512, 145 S. W. 2d 344.
The contentions made by strict constructionists might have this result: Suppose the Game and Fish Commission should contract with Arkansas Power & Light Company not only for its lighting but for some special supplemental, but necessary, service; and suppose one of the commissioners happened to own a share of stock in the power company: has the commissioner committed a felony? The same analogy might with reason be applied to contracts for telephone service or for any utilities where the transaction does not pass through the secretary of state — an exempted official.
It has long been the rule that penal statutes and statutes which impose burdens and liabilities unknown at common law must be strictly construed in favor of those upon whom the burden is sought to be imposed, and nothing will be taken as intended that is not clearly expressed. State v. International Harvester Co., 79 Ark. 517, 96 S. W. 119. See cases cited in West’s Digest, Vol. 16, § 241.
It is urged by those who petitioned for injunctive relief that the criminal part of § 4 is not to be considered and that equity, independently of the felonious aspect, has jurisdiction to prevent payment of the questioned warrants and to restrain prospectively. Ritholz v. Ark. State Board of Optometry, 206 Ark. 671, 177 S. W. 2d 410.
We dispose of the cases by holding that the language of § 4 is not sufficiently clear to justify us in saying that the legislative intent was to prohibit the member of one board or commission, officer, agent, or employe, from consummating commercial or business transactions with another agency; therefore there was nothing tangible to prohibit.
This is not to say that in different circumstances involving collusion in matters detrimental to the public welfare the conduct would not be restrained if sufficient colorable design should be revealed.
The Chancellor’s findings that the purchase orders were entered and their functions concluded “contrary to the express provisions of § 4 of Act 214” are reversed, but the refusal to enjoin is affirmed for the reasons herein expressed.
.Remanded, with directions to enter orders not inconsistent with this opinion.
Mr. Justice Holt concurs. | [
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Robinson, J.
This suit was filed by Jim McCool seeking to enforce a laborer’s lien against property now owned by appellees, Earl V. and Shirley M. Jones. Jim McCool died subsequent to filing of the suit and the cause has been revived in the name of appellants herein. When the plaintiffs rested their case, defendants demurred to the evidence. The demurrer was sustained and plaintiffs have appealed.
Appellees say they were at all times owners of the property in question but that the plaintiff, Jim McCool, failed to give them notice of the filing of the lien as required by Ark. Stats., § 51-608, and, therefore, plaintiffs cannot recover. Appellees also contend that Dallas McCool was the contractor on the job and that plaintiffs cannot recover because the said Dallas McCool was not made a party to the suit, as provided by Ark. Stats., § 51-610. It is stated in appellees ’ brief: ‘ ‘ There is only one question presented in this appeal — the status of Dallas McCool. Was he the owner or was he a contractor?”
It is the contention of appellants that Dallas McCool was the owner of the property at the time Jim McCool worked thereon, and Jones obtained title subsequent to the filing of the lien.
The parties stipulated as follows: “It is stipulated and agreed by and between the parties hereto that Den- ton and Louise McCool, Ms wife, acquired title to the real estate involved herein by warranty deed executed by Gene Thrasher and Juanita Thrasher on the 8th day of August, 1950, as shown by Deed Record Book 286 at page 584.
“It is further stipulated that Denton McCool and Louise McCool, his wife, conveyed the property in question to Earl Y. Jones and Shirley M. Jones by warranty deed on the 15th day of November, 1950, and made a matter of record on the 18th day of November, 1950, as reflected by Deed Record.288, page 570. It is further stipulated that Earl y. Jones and Shirley M. Jones executed their deed of trust in favor of the United Building & Loan Association of Fort Smith, Arkansas, on the 15th day of November, 1950, and it became a matter of record on the 18th day of November, 1950, as reflected by Mortgage Record 169 at page 78. All records being records in the Recorder’s office in Benton County, Arkansas. It is further stipulated that Lien Record C at page 143 reflects a lien filed by Jim McCool against Dallas McCool and Earl Jones on November 10, 1950; said purported lien in its original form consisting of two sheets being marked plaintiffs’ Exhibit No. 1 and offered in evidence. ’ ’
Mrs. Ethel McCool, widow of Jim McCool, testified that Dallas McCool and Denton McCool were one and the same person. She further testified that her husband, Jim McCool, in his lifetime worked for Denton McCool at Rogers as a carpenter building a house on the property involved in this lawsuit; that her husband worked on the house from June until the 30th or 31st of August, and that he was never paid for his labor. When the plaintiffs had rested their case, on the authority of Ark. Stats., § 27-1729, the defendants demurred to the evidence and the court sustained the demurrer. It is claimed by appellees that the following testimony given on cross-examination by Mrs. Ethel McCool proves that her husband, Jim McCool, was the contractor and the Joneses were the owners, and, therefore, the court was justified in sustaining the demurrer to the evidence.
“Q. As a matter of fact, do you know Dallas McCool had a contract to build a house for Earl Jones?
“A. Yes.
“Q. You have previously stated that he was employed by Dallas McCool or Denton McCool to do certain cai-penter work — -is that right?
“A. On the Jones house.
“Q. What was the reference made to this house by your husband — was he speaking of it as the Denton McCool or Dallas McCool house, or was he speaking of it as the Jones house?
“A. He would just say Denton-Jones. He knew Denton was building the house for Jones.
“Q. Do you know of any work which Jim McCool ever did under contract with Earl Jones or Shirley Jones?
“A. No, I don’t.
“Q. If he had done such work would you have known of it?
“A. Sure.”
We do not think this testimony justifies sustaining the demurrer to the evidence. If the demurrer had been overruled and the defendant had produced no evidence, and a decree had been rendered in behalf of the plaintiffs, it could not be said that the evidence does not support the decree.
It is stipulated that Denton McCool and Louise McCool, his wife, acquired title to the real estate involved herein by warranty deed executed by Gene Thrasher and Juanita Thrasher on August 8, 1950, which was prior to the filing of the lien. This stipulation in itself would be sufficient to constitute a prima facie case on behalf of plaintiffs as to tlie ownership of the property. Moreover, in addition to the stipulation, there are inferences to be drawn from the evidence going to show that Denton McCool was the owner — the fact that he and his wife received a warranty deed to the property — the fact that they held the property as an estate by the entirety — the fact that they conveyed by warranty deed. .
In the ease of Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, this Court had under consideration Act 470 of 1949 (Ark. Stats., § 27-1729) authorizing demurrers to the evidence in chancery cases, and there said: “What, then, is the effect of a demurrer to the evidence or a similar pleading in jurisdictions recognizing that practice? The question may arise either in equity cases, where the Chancellor is the arbiter of the facts, or in cases tried at law without a jury, where also the trial judge decides all issues of fact. By the overwhelming weight of authority, it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law Gases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima facie case. ’ ’
The decree is accordingly reversed and the cause remanded for further proceedings. | [
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George Bose Smith, Justice.
The appellant was convicted of having possessed untaxed intoxicating liquor and was sentenced to the minimum fine of fifty dollars. Ark. Stats. 1947, § 48-934. For reversal he contends that there is no substantial evidence to support the verdict.
On August 31, 1952, a deputy sheriff and two State policemen, acting upon an anonymous telephone call, obtained a search warrant and went to Slate’s home. In the house they found neither any intoxicants nor any malt, malt cans, or other ingredients' used in the making’ of home-brew. Some sixty or seventy feet behind the dwelling the officers found a five-gallon crock full of home-brew, which analysis showed to be intoxicating. It does not appear that Slate’s house is completely enclosed by fences, but there is a fence that runs past one side of the house. The crock was sitting in the open about three feet from this fence, on the side toward Slate’s house. The officers testified that there was a well-worn path from the back steps to the spot where the beer was found. Other paths led into a wooded area behind Slate’s property, where the officers found a quantity of beer cans and old sugar sacks, all at a distance of a hundred yards or more from the dwelling.
Slate, who has not previously been convicted of an offense, has steadfastly denied any knowledge of the home-brew. He is regularly employed in the trucking business and had lived in the house in question for only twelve days before the officers made their search. He testified that the fence we have mentioned is not on his property line and that if the crock was within three feet of the fence it was on property owned by his neighbor.
We agree that this proof was insufficient to take the case to the jury. The State refers us to Roberts v. State, 220 Ark. 245, 247 S. W. 2d 360, where we upheld a conviction which followed the discovery of untaxed whiskey in a field behind the accused’s home. But there the prosecution offered other circumstances indicating-ownership in the defendant, such as his admission to an investigator that he had liquor for sale, his reputation as a bootlegger, etc. Here the sole fact pointing to Slate’s guilt is the discovery of the crock in the vicinity of his house. In view of his brief occupancy of the residence the fact that the paths were well-worn and that the sugar sacks were old points rather to the guilt of some one else than to that of this appellant. It is our conclusion that the evidence raises a mere suspicion against Slate, which is not a sufficient basis for his conviction. Martin v. State, 151 Ark. 365, 236 S. W. 274.
Reversed and remanded for a new trial. | [
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J. Seaborn Holt, Justice.
Appellants and the Robinsons entered into the following contract: “This contract entered into on this the 15th day of March, 1950, by and between A. T. Robinson and Grace Robinson, parties of the first part and Darrell Lancaster and Naomi Lancaster, parties of the second part, Witnesseth:
“That the party of the first part hereby agrees to sell and execute a Warranty Deed to the parties of the second part to the following lands in Stone County, Arkansas, to-wit: (describing them) for a consideration of the sum of Four Thousand Five Hundred & No/100 ($4,500.00) of which the sum of $1,500 is being paid as of this date, and the balance in annual installments of $325.00 and interest at 6%, beginning with the first installment on the 15th day of March, 1951, and-the same amount on the 15th day of March each year thereafter until the full amount of $3,000.00 plus interest is paid.
‘ ‘ The party of the second part after having read the terms of this contract hereby agrees to make the down payment of $1,500.00 and the balance as shown above. It being understood that the Deed and Abstract be held by the party of the first part until all payments be made, then to be delivered by the parties of the first part to the parties of the second part. It being further understood that in the event of failure of the parties of the second part to make either of the payments on or before the due date, all become due and payable and this contract becomes null and void and the Deed reverts to the party of the first part, after a period of 30 days of grace has been given. Party of the first part to pay taxes for 1949. Future taxes and insurance to be paid by party of the second part. (Signed) A. T. Robinson, Grace Robinson, Darrell Lancaster, Naomi Lancaster.”
Material facts appear not to be in dispute. On January 9, 1951, after the execution of the contract and the down payment of $1,500 by the Lancasters, the Robinsons sold and assigned their interest in the property to Von R. Rosa under a written agreement, which in part provided: “In order for said Von Rosa, as assignee of said contract to carry out the terms thereof, it is necessary that legal title to said lands be conveyed to him in order that he may convey same to said William Darrell Lancaster and Naomi Lancaster upon the compliance with the terms of said contract;
“Now, therefore, we, the said A. T. Robinson and Grace Robinson have this day executed and delivered to said Von Rosa our deed to the lands aforesaid; and I, the said Von Rosa hereby agree to hold same according to the terms of said contract, and upon payment to me of the purchase price therefore as set out, to execute my Warranty Deed to said lands conveying same to said William Darrell Lancaster and Naomi Lancaster.”
The Lancasters held possession and received rent from the property until May, 1951, in the amount of $280, and on this date Rosa took possession. The Lancasters failed to pay the first installment due March 15, 1951, or within the thirty days grace period thereafter. (In fact, they did not pay the second installment when it became due.)
The Lancasters brought the present suit against the Robinsons to recover the $1,500 down payment, alleging that the Robinsons had breached their contract, “that under said contract, the deed and abstract were to be held by defendants until the purchase price was paid in full, at which time the deed and abstract were to be delivered to the plaintiffs (Lancasters). Complaint further alleges that the said A. T. Robinson and wife failed and refused to comply with their part of the contract by executing the deed, aforesaid, and thereafter, on January 9, 1951, without the knowledge and/or consent of the plaintiffs, conveyed said lands to one Yon R. Rosa and Grace Rosa for a consideration of Three Thousand Dollars ($3,000) cash in hand.”
The Robinsons answered with a general denial and alleged that appellants had breached the contract by failing to pay the first installment.
The present suit was filed March 15, 1951. December 22, 1951, appellee, Rosa, filed motion to be made a party defendant, and on March 19, 1952, the trial court properly granted this motion and allowed Rosa to intervene as a necessary party in interest. See § 27-814, Ark. Stats. 1947, and our holding in Harrison v. Knott, 219 Ark. 565, 243 S. W. 2d 642.
The case was, by agreement, tried in vacation and final decree was entered of record on May 23, 1952, in favor of appellees. The trial court found that the Lancasters had paid the $1,500 on the contract but had failed to pay the first installment due March 15,1951, had failed to pay taxes and keep the property insured as provided in the contract. The decree provided in part: ‘ ‘ That on or about the 9th day of January 1951 the defendants, A. T. Robinson and Grace Robinson, assigned and transferred their rights in the sales agreement aforesaid, to the defendant, Von R. Rosa for the consideration of $3,000.00 and at the same time conveyed the lands aforesaid to the said Von R. Rosa. That said Von R. Rosa entered into a written agreement with the said A. T. Robinson whereby he held said lands subject to the terms and provisions of said sales agreement, specifically agreeing to convey said lands to the plaintiffs upon payment to him of the balance due on the purchase price of said lands; that the said Von R. Rosa held title to said lands subject to the terms of said sales agreement.
“That in order to adjudica té the rights of all necessary parties, and in order to do equity herein, the said Von R. Rosa was made a party hereto on'March 19, 1952.
“The Court further finds that the defendant, Von R. Rosa, has had possession of said property since May, 1951; that a fair rental value of said property is $20.00 per month; that said Von R. Rosa has paid all taxes and insurance on said property since acquiring said sales agreement and title to said lands; that said Von R. Rosa holds same as a mortgagee in possession.
“It is therefore by the Court considered, ordered and decreed that plaintiffs’ prayer for judgment in the sum of $1,500.00 for the initial payment made on said lands, and for $1,500.00 for breach of contract, be, and the same is hereby dismissed; that the defendant Von R. Rosa, as the present owner of said sales agreement and rights thereunder, is given judgment in the. amount of $3,000.00, being the balance due on the purchase price of said lands; it is further ordered by the Court that the terms of said sales agreement shall be reinstated providing the plaintiffs pay to the defendant Von R. Rosa, the payments due thereunder for March 15th, 1951 and for March 15th, 1952, plus interest on the total unpaid balance of $3,000.00 at 6% per annum, less the fair rental value of said property from May 1st, 1951; plus the taxes on said property for 1950 and 1951, and the insurance premiums for the insurance on said property with interest at 6% per annum; and upon payment in full of said sum of $3,000.00 the defendant, Yon E. Eosa, is ordered and directed to execute a warranty deed to said plaintiffs in accordance with the terms of said sales agreement.
“In the event the plaintiffs fail to pay the sums adjudged by them to be paid herein, within 60 days after the date of this order, then and in such event, said sales agreement and contract is declared to be null and void, and the rights of said plaintiffs under said contract, and their equity and rights in said lands thereunder are forever foreclosed and barred.”
We think the preponderance of the testimony is not against the findings of the trial court. The Eobinsons, as indicated, assigned the contract of sale on January 9, 1951, to Von Rosa. This they clearly had the right to do under § 68-801, Ark. Stats. 1947. Such is the effect of our holding in Corcorren v. Sharum, 141 Ark. 572, 217 S. W. 803, wherein we held: (Headnotes 1 and 2) “1. Vendor and purchaser — executory contract. — One purchasing land by an executory contract became the equitable owner. 2. Vendor and purchaser — assignment oe contract. — An executory contract for the purchase of land is assignable in equity and under Kirby’s Dig., § 509, (now § 68-801, above) making all agreements in writing for the payment of money or property or both assignable. ’ ’
The record reflects that prior to the entry of the above decree, May 23,1952, and the intervention of Eosa, the Court on the evidence then before it indicated that its findings and conclusions would be in favor of the Lancasters for $1,500 less $280 rent and that they were entitled to a lien on the property.
As we have indicated, these findings were made during the vacation period. Thereafter, and within this vacation period, the court, after allowing Eosa to intervene, reopened the case and in effect reversed its earlier conclusions by the above final decree of May 23, 1952, which was and is the only final decree made by the court. Section 22-433, Ark. Stats. 1947, provides for vacation decrees, but such decrees do not become final, effective and appealable until filed with the clerk for entry on the record.
In construing the above statute, we said in Red Bud Realty Company v. South, 145 Ark. 604, 224 S. W. 964: “Under this statute (now § 22-433, Ark. Stats. 1947) a vacation decree does not become effective until it is signed and entered of record, and until it is so entered, it cannot be appealed from, therefore, the time allowed for taking an appeal runs from the date of entry. In this respect a vacation decree differs in effect from one rendered in term time. In the very nature of things, a judgment pronounced by a judge in vacation does not, before entry, have the force and effect of a judgment pronounced by a court duly assembled at the time and place prescribed by law, unless the statute in express terms gives it such force. ’ ’
Courts have the power “to amend, vacate, or correct decrees rendered in vacation before the expiration of the term of court,” Ingram v. Board of Commissioners of Street Improvement District No. 5, 197 Ark. 404, 123 S. W. 2d 1074.
In view of the equities involved, we modify the decree by directing that appellants be allowed sixty days from the date of this opinion within which to comply with said decree. As so modified, the decree is affirmed. | [
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Bunn, C. J.
The note sued on this ease was executed by the deceased, W. W. Constant, and delivered to H. H. Hadley, on the 10th day of January, 1889, due and payable twelve months after date, with 6 per cent, interest from date; principal $1,000. On the 24th day of August, 1894, the note was assigned and transferred to appellant, W. B. Matthews, by Hadley, for value.
On the 28th of May, 1895, Matthews presented the note for allowance to W. T. Lane, the appellee, the then administrator of the estate of Constant, who had died in the meantime, and the same was disallowed, and the same was filed in the probate court for suit, and Lane, the administrator, answered at the July term, 1895, and with his answer filed his counterclaim, to which Matthews filed his response, and, on motion of Lane, Hadley was made a party defendant.
Without date or file marks, a petition of Matthews appears in the record, made to the circuit judge, asking an order on the probate judge requiring him to perfect his record of the July term, 1890 [1895], of the probate court, showing that he had in fact at said term taken the appeal, and that a minute of the same had not been made, as should have been done. The affidavit for the appeal appears in the record as of the date of 24th July, 1895, but it does not appear to have been presented or filed in the probate court.
' On the 30th September, 1896, in term time, Lane filed his motion in the circuit court to dismiss the appeal, and, on hearing of the same, the court held that no appeal had been granted in the case, and the appeal was thereupon dismissed, over the objection of Matthews. No action appears to have been taken on the petition for writ of mandamus on the probate judge, and the record does not show that an appeal was taken. The dismissal of the appeal disposed of the case in the circuit court, and from that order this appeal was taken, the proceeding in the probate court, including* the evidence, being presented in the transcript sent up -to this court. No final action seems to have been taken on the petition for the writ of mandamus against- the probate court to compel it to make its records speak the truth, and thereby to show that this appeal was taken in due form; and we are unable to see whether or not there was any connection whatever between this petition and thé subsequent motions of defendant to dismiss, if,indeed, any such connection would change the status of things. On the motion to dismiss the appeal, or on the petition for writ of mandamus, we cannot say which, evidence was taken to show what really did occur in the probate court at the time the ap peal is alleged to have been taken; but this evidence is too indefinite and uncertain to serve as a correction of the record in the latter case, and equally so to supply a record in the former ease, if such, indeed, were at all allowable.
Berry v. Singer, 9 Ark. 128, was a case of appeal from the circuit to the supreme court, and in that case this court said: “This is a motion filed by appellee to dismiss the appeal. The reason urged in support of the motion is that there is no showing of record that the appeal ever was allowed by the circuit court. The statute declares that the circuit court shall make an order allowing an appeal upon the performance of certain conditions therein specified. It is the order granting the appeal, and not the prayer for it, that operates to transfer the jurisdiction from the circuit to the supreme court. This being a question of jurisdiction, no presumption can be indulged; so that, although the record should affirmatively show that every prerequisite had been complied with, yet no jurisdiction could attach without an order expressly allowing the appeal.” And in Neale v. Peay, 21 Ark. 94, this court said: “It was decided in Berry v. Singer, 9 Ark. 128, that where, on appeal from the circuit court to this court, the record shows that the party appealing complied with all the prerequisites required by statute to entitle him to an appeal, but fails to show that the appeal was granted, this court will dismiss for want of jurisdiction. No good reason has been or can be given why the same rule should not apply to appeals from the probate court to the circuit court, the statutes regulating each being similar in their provisions, so far as regards the point in controversy,” — citing Gould's Digest, pp. 137, 867, for the regulation of appeals in both courts. The same rule as to appeals from the probate court continues to this day, substantially. Sand. & H. Dig., § 1149.
In Sykes v. Lafferry, 26 Ark. 414, this court said: “Under the code, there are two ways in which an appeal may be prosecuted: 1st. By a motion made during the term at which the judgment or final order was rendered. 2d. Upon application of either party to the clerk of the supreme court, in term time or in vacation. The record does not declare the fact that there was any motion for an appeal in the court below, nor that there has been application to the clerk of this court to grant such appeal. True,' the papers are marked “Filed January 24, 1870,” but that does not constitute an application for an appeal. There should be a formal petition to that effect, and a granting of the same by the clerk, in order to invest the court with jurisdiction to hear and determine the case on its merits. Therefore the case is dismissed.” See, also, Adams v. Hepman, 27 Ark. 156.
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Battle, J.
On the 14th day of July, 1896, an indictment was filed in the Faulkner circuit court, in which Charles Conrand was accused of slander. The commission of the offense was charged, in part, as follows: “The grand jury of Faulkner county, in the name and by the authority of the State of Arkansas, accuse Charles Conrand of the crime of slander committed as follows, to-wit: The said Charles Conrand, in the county and State aforesaid, on the 15th day of May, A. D. 1899, then and there maliciously, wilfully, feloniously and falsely did use, utter and publish (in the presence of James Campbell, Rebecca Campbell, Elias Stone, Mary Ann Stone and others) of and concerning Barbara A. Rosamond,” etc.; and it was alleged in the indictment as follows: “This prosecution is with knowledge and consent of the said Barbara A. Rosamond.” The indictment was indorsed as follows: “This prosecution with consent of Barbara A. Rosamond. A true bill. [Signed] A. J. Witt, foreman.”
The defendant moved to set aside the indictment because it was alleged therein that the offense chai-ged was committed “upon a future and impossible date;” and the eoux*t overruled the motion. He thereupon pleaded not guilty, and was txfied by a jury. He introduced witnesses and, testified, and thex’eby clearly indicated that he was not misled by any allegation in the indictment as to the time when the offense of which he was accused was committed.
The court refused to instruct the jury, at the request of the defendant, as follows: “The state must prove every material allegation in the indictment; and if it has failed to prove that this indictment was found and prosecuted by the instance or consent of Mrs. Barbara A. Rosamond, they will acquit.” Instructions were given, and others were asked and refused, but it is not nécessary to notice any of them in this opinion except the one we have copied.
The defendant was convicted, the jury having returned a verdict in the following form: “We, the jury, find the defendant guilty, and leave punishment with court.” (Signed) “T. L. Daniel, foreman.” The court fixed his punishment at imprisonment and hai’d labor in the penitentiary for the period of three years, and rendered judgment against him accordingly.
The defendant insists that this judgment should be revers - ed for the following reasons: (1) Because the court erred in overruling his motion to set aside the indictment. (2) Because the court erred in refusing to give the instruction copied in this opinion. (3) Because the verdict was insufficient.
(1) The allegation as to the day on which the offense was committed is immaterial, and did not affect the sufficiency of the indictment. The statutes provide that the indictment must contain “a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended.” That it is sufficient if it can be understood therefrom: “First, that it was found by a grand jury of a county impaneled in a court having authority to receive it, though the name of the court is not accurately stated; second, that the offense was committed within the jurisdiction of the court, and at some time prior to the time of finding the indictment; third, that the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the rights of the case.” And further provide that “no indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected by any defect which does not tend to the ' prejudice of the substantial rights of the defendant on the merits.” Sand. & H. Dig., §§ 2090, 2075, 2076. According to these provisions of the statutes, an allegation in the indictment as to the day upon which the offense charged was committed cannot affect it, if it can be understood therefrom by a person of common understanding that the grand jury intended to charge that the offense was committed “at some time prior to the time of finding the indictment.” The only necessity for such allegation is to show that the offense was committed before the indictment, unless time is a material ingi’edient of the offense. Except as stated, it is not necessary to a conviction that, the state prove that the offense was committed on the day alleged; but it is sufficient, as to tixne, to show that it was committed on any day before the indictment-was found, and within the time px-escribed by the statutes of limitations. Hence section 2081 of the digest declares: “The statement in the indictment as to the time at which the offexxse was committed is not material, further than as a statement that it was committed befox*e the time of the finding of the indictment, except when the time is a material ingredient in the offense.” This section does not meaxx to say that a statement as to the day on which the offense was committed shall be necessary to constitute a good axxd sufficient iixdietment, but, whexx made, what purpose it shall serve. An interpretation of it to the contrary effect would make it conflict with the section of the digest preceding it which declares that an indictment shall be sufficient in that respect, it it can be uxxdex'stood therefrom that the offense was committed befox’e it was found.
Under a statute of which section 2081 is an exact copy, the court of appeals of Kentucky held that an indictment for breaking into a railroad depot and stealing therefrom, which was returned on the 28th of December, 1891, and fixed the date of the commission of the offense on the 29th of December, 1891, but alleged that the defendant “did break', open and exxter the depot building,” and “did steal and carry away,” etc., contained a sufficient allegation that the offense was committed before the iixdietment was found, and sustained the indictment. Williams v. Com., 18 S. W. Rep. 1024; Com. v. Miller, 79 Ky. 451; Vowells v. Com., 84 Ky. 52.
The question decided by the court of appeals of Kentucky is presented in this case. In the indictment before us the grand jury of Faulkner county accused the defendant of the crime of slander, “committed as follows,” and alleged that the defendant, “on the 15th day of May, 1898, then and -there maliciously, wilfully, feloniously and falsely did use, utter and publish,” etc. They alleged that the offense was committed in the past, using the words “committed” and “did” for that purpose, on a day sometime in the future. No man of common understanding could infer from the indictment that the grand jury intended to accuse the defendant of having committed a crime before it was committed. To accuse one of a crime is to charge that it was committed prior to the accusation. The allegation as to the date of the commission of the offense was a clerical error, apparent on the face of the indictment, and was not calculated to, and did not, mislead the defendant; and did not affect the validity or sufficiency of the indictment or •the judgment against him.
(2) The statutes provide that no indictment for slander shall be found, “except at the instance or by consent of the person slandered or his legal representative” (Sand. & H. Dig., § 1730). The grand jury alleged in the indictment in this ease that it was found with the consent of the person slandered. But this allegation was no part of the statements which were made to show the commission of the offense, and it was not necessary .to prove it to convict the defendant. In pleading not guilty the defendant did not put it in issue. If it was untrue, the defendant could have taken advantage of it by a motion to set aside the indictment, as it affected the authority of the grand jury to find the indictment, and nothing more. Having failed to do so, he waived any advantage he could have taken of it, and it was not necessary for the state to prove that it was true; and the court properly refused to instruct the jury that it was their duty to acquit in the event they found that it was not proved. Sand. & H. Dig., § 2126; Wright v. State, 42 Ark. 94; Miller v. State, 40 Ark. 488.
(3) The verdict, although not as full as it might have been, was sufficient. The offense charged did not consist of different degrees, and it was therefore, not necessary for them to say more than they found the defendant guilty, and assess the punishment. As the statute authorized the court to assess the punishment, when they failed to do so, this defect was not fatal, and did not affect the judgment of the court.
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George Rose Smith, J.
This is a suit by the appellant for specific performance of a contract by which the appellee agreed to sell to the appellant certain property in the city of Benton. The agreement which the appellant seeks to enforce was in the form of an option to purchase and was contained in a lease which expired on April 11, 1951. The chancellor, finding that the appellant had failed to complete the purchase during the term of the lease, dismissed the complaint. The only question now presented is whether the trial court was correct in holding that the entire transaction had to be consummated before the expiration of the lease.
As of April 11, 1936, Mrs. Gaylord leased the property to the appellant for ten years; later on the lessee exercised an option to extend the lease for an additional five years. The instrument provides that the tenant has the privilege of purchasing the property for $12,000 in cash “at any time during the term of this lease, or any extension thereof.” Upon the exercise of this option to purchase the landlord is required to prepare and submit to the tenant’s attorneys an abstract of title and to take any steps necessary to correct defects in the title. If the lessor fails to clear the title within a reasonable time the lessee may do so and deduct the expense from the purchase price.
On February 27, 1951, which was forty-three days before the end of the term, the appellant notified Mrs. Gaylord that it elected to purchase the property, Mrs. Gaylord promptly submitted an abstract of title, which was found to disclose the usual minor defects. While this curative work was being done the appellant had the lots surveyed and discovered that a neighboring dwelling owned by Mrs. Gaylord encroached upon the leasehold premises to the extent of 1.8 feet.
On March 9 the appellant by letter requested Mrs. Gaylord to move the encroaching dwelling. In her reply Mrs. Gaylord asked for leniency, saying: “ I do feel that the few inches the building is over the line is not too compulsory or needful as to make me move the building at this time. Isn’t there some way you can figure out for me to acquire these few inches or at least let the building remain as is until you people definitely decide to build?” In response to this plea the appellant sent its division manager to see Mrs. Gaylord, and on April 4 he recommended to the company’s Shreveport office that Mrs. Gaylord be given an easement permitting the encroachment.
On April 11 the appellant instructed its attorneys to prepare the suggested easement. The next day the company sent the purchase money to these attorneys, who informed Mrs. Gaylord on April 14 of its availability. She did not call for the money, however, and when a formal tender was made not later than April 20 she refused it as being too late.
We think the chancellor erred in his conclusion that the appellant’s demand for performance, made nine days after the end of the term, came too late. It is of course true that in a case of this kind time is of the essence “in the exercise of the option.” Smith v. Carter, 213 Ark. 937, 214 S. W. 2d 64. Hence, as we indicated in that case, the tenant cannot exercise the option after the landlord has terminated the lease on account of its breach by the tenant, nor can the latter extend the time by holding over and paying rent.
Here the facts are materially different. This appellant exercised its option to purchase on February 27, more than six weeks before the term expired. The parties could have fixed a definite time for the completion of the transaction, as was done in Indiana & Ark. etc. Co. v. Pharr, 82 Ark. 573, 102 S. W. 686, but instead they plainly contemplated some flexibility in the time allowed for bringing the matter to a conclusion. Mrs. Gaylord was required to perfect her title within “a reasonable time,” and upon her failure to do so the purchaser was to be permitted to assume that burden and to charge the expense to her.
There is not the slightest proof that the appellant was dilatory in its efforts to consummate the purchase. It is fair to say that the principal cause for the delay beyond April 11 lay in Mrs. Gaylord’s understandable unwillingness to remove her encroaching dwelling. Had that building been moved immediately after the company requested that action on March 9, there is no reason to believe that all other details would not have been satisfactorily taken care of well before April 11. Undoubtedly Mrs. Gaylord was entitled to expect that the negotiations be carried forward without unreasonable delay, but in this respect we perceive no default on the purchaser’s part.
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Battle, J.
An act entitled “An act to regulate charges on excess baggage on all railroads propelled by steam or electricity in this state over five miles in length,” approved April 19, 1895, provides:
“Section 1. It shall be unlawful for any railroad in this state, over five miles in length, run by steam or electricity, to charge more than twelve and one-half per cent, of the cost of a first-class fare between all points in this state, per hundred pounds, for excess baggage, over (150 lbs.) one hundred and fifty pounds; provided, that the minimum charge for excess, where the same does not exceed 200 pounds, shall not be less than twenty-five cents.
“See. 2. Any such failroad violating the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction be fined in any sum not less than $10 nor more than $25.”
The Kansas City, Pittsburg & Gulf Railroad .Company was indicted for, and convicted of, a violation of this act, and was fined in the sum of ten dollars.
The facts upon which the conviction was based are as follows: George T. Lincoln, a traveling salesman, purchased of the Kansas City, Pittsburg & Gulf Railroad Company a ticket for transportation over its road from Siloam Springs, in Benton county, in this- state, to Gentry, a station in the same county, and paid twenty cents for the same, the price of first-class fare. He had with him four trunks, which contained clothing of various kinds, and weighed in the aggregate 970 pounds. He carried this clothing with him, and used it as samples in making sales of goods of the same description. The railroad company allowed him transportation for 150 of the 970 pounds free of additional expense, and charged and received from him one dollar and twenty-five cents for the transportation of the remaining 820 pounds from Siloam Springs to Gentry. The sum received was the amount charged for like articles, when shipped as first-class freight, was a freight rate, and not an excess baggage rate. The trunks were checked like baggage, and accompanied Lincoln upon the same train. The defendant’s railroad exceeded five miles in length, and was operated by steam.
Were the four trunks and their contents “baggage,” within the meaning of the act of April 19, 1895?
What is baggage, within the rule of the carrier’s liability, depends much upon the reason why the passenger is allowed transportation for it as such. There can be but one, and that is because it is necessary or conducive to his convenience and comfort. It is necessary to him, and for that reason it is impliedly, if not expressly, included in every contract of the carrier to transport passengers. “The impossibility of traveling,” says Chief Justice Oockburn, “without the accompaniment of a certain quantity of luggage for the. personal comfort and convenience of the traveler has led from the earliest times to the practice, on the part of carriers of passengers for hire, of carrying, as a matter of course, a reasonable amount of? luggage for the accommodation of the passenger, and of con-’ sidering the remuneration for the carriage of such luggage as comprehended in the fare paid for the conveyance of the passenger.” Hence courts and authors, in defining what is baggage, have embraced this idea in their definitions. Judge Story says that “by baggage we are to understand such articles of necessity or personal convenience as are usually carried by passengers for their personal use, and not mei-chandise or other valuables, although carried in the trunks of passengers, which are not designed for any such use, but for other purposes, such as a sale, and the like.” Story, Bailments, § 499. “Baggage,” says Chief Justice Cockburn, in Macrow v. Great Western Railway Co., L. R. 6 Q. B. 612, “is whatever the passenger takes with him for his personal use or convenience, according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities or to the ultimate purpose of the journey.” Mr. Justice Field, in Hannibal Railroad v. Swift, 12 Wall. 274, said that the contract of the carrier to carry a passenger, as to baggage, “only implies an undertaking to transport such a limited quantity of articles as are ordinarily taken by travelers for their personal use and convenience, such quantity depending, of course, upon the station of the party, the object and length of his journey, and many other considerations.” Upon the same principle, the statutes of this state provide: “Each passenger who shall pay fare * * * shall be entitled to have transported along with him, on the same train, and without additional charge, one hundred and fifty pounds of baggage, to consist of such articles as are, usually-, carried by ordinary persons when traveling.”
Accordingly it has been frequently held, as we do now, that merchandise carried for sale, or samples of merchandise carried for the purpose of making sales of goods of the same class, do not come within 'the description of baggage. Humphreys v. Perry, 148 U. S. 627; Alling v. Boston & Albany Railroad, 126 Mass. 121; Miss. Central Railroad Co. v. Kennedy, 41 Miss. 671, 678; Macrow v. Great Western Ry., L. R. 6 Q. B. 612; Hawkins v. Hoffman, 6 Hill, 589; Hutchings v. Western & Atlantic Railroad, 25 Ga. 61; Texas, etc., R. Co. v. Capps, 16 Am. & Eng. R. Gas. 118; Michigan Central R. Co. v Carrow, 73 Ill. 348; Strouss v. Wabash, etc., Ry. Co., 17 Fed. Rep. 209; Pennsylvania Co. v. Miller, 35 Ohio St. 541; Southern Kansas Ry Co. v. Clark, 52 Kas. 398; Hutchings v. Western, etc., R. Co., 71 Am. Dec. 160; Hutchinson, Carriers, §§ 679, 685; Thompson, Carriers of Passengers, 510.
It is true that it is said in Kansas City, Fort Scott & Memphis Railroad Co. v. McGahey, 63 Ark. 348: “When a passenger presents to the carrier for transportation his goods and chattels, and makes known what they are, or exposes them to view, or packs them in a way to give to any one concerned good reason to understand and know that they are not usually carried as baggage, and demands transportation of them as his luggage, and the carrier receives and carries them accordingly, he will be responsible for them as baggage, notwithstanding he was not bound to accept and transport them as such. If he wishes to avoid responsibility for them as baggage, he must refuse to receive them in that way.” But the act of April 19, 1895, does not apply to goods and chattels which do not come within the description of baggage. The carrier becomes liable for them as baggage by accepting them as such, by his own acts, and not from any obligation to transport them as baggage, which the law imposes upon him. Such property he is not bound to receive except upon the payment of the rates he is allowed to charge for the transportation of the same as freight.
In this case the railroad company was not bound to receive and transport Lincoln’s trunks as baggage. It was entitled to compensation for carrying them at the rate it is lawful to charge for the transportation of such property as freight. It received noth - ing more, and is not guilty of violating the act of April 19, 1895.
Reversed and remanded for a new trial. | [
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George Rose Smith, J.
This appeal presents for interpretation certain sections of Act 142 of 1949, governing the registration of motor vehicletitles. Ark. Stats. 1947, Title 75, Cb. 1. The controversy centers upon a question of priority as between tbe claims of two creditors of J. A. White. One of these creditors, Mollie B. .Cisco, obtained a municipal court judgment against White for $245.70 and delivered a writ of execution to the appellant, the sheriff of St. Francis County. The sheriff levied upon an automobile owned by White. The other creditor, the appellee, then brought this suit against White and the sheriff to enjoin the execution sale. The complaint asserts that the plaintiff has paramount title to the car by reason of a promissory note and conditional sales contract executed by White as vendee of the vehicle. The sheriff, without exercising his option of asking that the judgment creditor be substituted as defendant (Ark. Stats., § 27-820; Ferguson v. Ehrenberg, 39 Ark. 420), undertook the defense of the case by filing an answer denying the plaintiff’s right to relief.
At the trial the plaintiff rested its case after introducing its title retaining contract and proving that a delinquent balance of $996.60 was owed by White on the note. The sheriff offered the writ of execution as his authority for proceeding with the sale. Upon this proof the chancellor held the plaintiff’s claim to be superior. The decree appoints the sheriff as receiver and directs that the car be sold, the proceeds to be applied first to the plaintiff’s debt and then to Mrs. Cisco’s judgment.
For reversal the sheriff contends that the plaintiff failed to make a prima facie case, in that it was not shown that a certified copy of the conditional sales contract had been deposited with the Title Department of the State Motor Vehicle Division. Ark. Stats., § 75-160. The pivotal question is whether it was essential for the plaintiff to prove its compliance with the title registration law, or whether noncompliance was a matter of defense to be pleaded and proved by the sheriff.
This is the applicable language of Act 142:
“Section 60. Filing liens and encumbrances, (a). No conditional sale contract, conditional lease, chattel mortgage, or other lien or encumbrance or title retention instrument upon a registered vehicle, other than a lien dependent upon possession, is valid as against the creditors of an owner acquiring a lien by levy or attachment or subsequent purchasers or encumbrances with or with out notice until the requirements of this article have been complied with.
“(b). There shall be deposited with the department a copy of the instrument creating and evidencing such lien or encumbrance, which instrument is executed in the manner required by the laws of this State with an attached or endorsed certificate of a notary public stating that the same is a true and correct copy of the original and accompanied by the certificate of title last issued for such vehicle.
# S* # *
“Section 61. Filing effective to give notice, (a). Such filing and the issuance of a new certificate of title as provided in this article shall constitute constructive notice of all liens and encumbrances against the vehicle described therein to creditors of the owner, to subsequent purchasers and encumbrancers except such liens as may be authorized by law dependent upon possession. In the event the documents referred to in Section 62 [Section 60] are received and filed in the central office of the department within 10 days after the date said documents were executed the constructive notice shall date from the time of the execution of said documents. Otherwise constructive notice shall date from the time of receipt and filing of such documents by the department as shown by its endorsement thereon.
“(b). The method provided in this article of giving constructive notice of a lien or encumbrance upon a registered vehicle shall be exclusive except as to liens dependent upon possession. . . .” Ark. Stats., §§ 75-160 and 75-161.
It is evident that by Act 142 the Legislature intended, with respect to motor vehicles, to subject conditional sales contracts, chattel mortgages, and other encumbrances to an identical requirement that a certified copy thereof be filed with the department. Section 61 not only provides that the statutory method of giving notice shall be exclusive but also exempts the specified documents from the operation of other recording laws.
It cannot be doubted that legislation of this kind was needed. In the past chattel mortgages were required to be recorded; indeed, there was no lien as to strangers until this requirement had been met. Ark. Stats., § 51-1002; Thornton v. Findley, 97 Ark. 432, 134 S. W. 627, 33 L. R. A., N. S. 491. And the mortgagee, in asserting his lien against a purchaser from the mortgagor, had the burden of proving compliance with the recording law. Combs v. Owen, 182 Ark. 217, 31 S. W. 2d 127.
An entirely different situation formerly existed as to title retaining contracts. There was no requirement that such an agreement be recorded, Meyer v. Equitable Credit Co., 174 Ark. 575, 297 S. W. 846; on the contrary, the reservation of title could be made by an oral agreement. Home Fire Ins. Co. v. Wray, 177 Ark. 455, 6 S. W. 2d 546. In this State we followed the common law rule that gave a conditional vendor priority over a subsequent purchaser without notice, although in an early case we mentioned “the hardship that is sometimes discovered when the condition is to be enforced against a bona fide purchaser. ’ ’ McIntosh v. Hill, 47 Ark. 363, 1 S. W. 680.
Many hard cases resulted from the want of a recording law for conditional sales agreements. As Professor Strahorn pointed out in 1929: ‘ ‘ One of the outstanding needs for statutory reform of the subject in Arkansas is a recording act. It should take no argument to point out that there is a great opportunity for fraud on innocent third parties when the buyer can sell the chattel, pocket the money, and leave his vendee subject to the secret reservation of title which may cause him to lose the chattel, or to have to pay up the balance of the purchase price to keep it. That such has happened is proved by the numerous times the situation has recurred in cases which have reached the Supreme Court.” Strahorn, “Conditional Sales of Chattels in Arkansas, ” 1 U. of Ark. L. S. Bull.- 3.
Now that the situation has been corrected by the General Assembly we have no inclination to undermine the legislative intent by a narrow construction of the law. As we said of this Act in Terrell v. Loomis, 218 Ark. 296, 235 S. W. 2d 961, “The Act is mandatory in all that it requires.” We would ourselves be legislating if we failed to give effect to the imperative declaration of § 75-160: “No conditional sale contract . . . is valid as against the creditors of an owner acquiring a lien by levy . . . until the requirements of this article have been complied with.” The Legislature could hardly have expressed more unmistakably its determination to make the required filing a condition precedent to the validity of the encumbrance in the situation now presented. Hence the plaintiff’s burden of proving a superior title was not met without a showing that its title retaining contract had been filed with the department.
In the court below the judgment debtor made no defense to either claim; the dispute was solely between the two creditors. The court rightly ordered a sale of the property, but it erred in adjudging the appellee’s claim to be prior to Mrs. Cisco’s judgment, instead of the other way around. In this respect the decree is modified and the cause remanded. | [
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Griffin Smith, Chief Justice.
The appeal is from an order of Jefferson Probate Court rejecting the will of Belle M. Altheimer. The petition to probate was filed in December, 1951, by Elsie J. Selig and E. S. Barnett, Jr. The two are có-guardians of Ben J. Altheimer, Jr., mentally incompetent. He is in an institution in California.
Mrs. Altheimer’s will was executed October 21,1914, in Chicago. Her death occurred in Wisconsin in November, 1951. Her husband, Ben J. Altheimer, Sr., was successful in Arkansas business enterprises. He died in 1946.
Formality essential to execution of the will must be tested by the laws of Illinois. They do not materially differ from ours. Proof of execution, however, is referable to our statutes because proponents seek to have it initially probated in this state.
After providing for the payment of debts and making a small bequest to an old friend, Mrs. Altheimer directed, by Item IY, that the residue, including all rights and interests accruing under the will of her father, should go to her husband and son, but in trust for the uses and purposes later mentioned.
With these subsequent provisions we are not presently concerned. But it is not inappropriate to say that whether the will is probated or rejected the incompetent son is cared for. He is without issue. No one suggests that this status may change. The will (Item X) makes reference to the laws of Illinois, and it is contended by appellants that when Ben J. Altheimer, Jr., dies intestate —and they say intestacy is inevitable — the property will be distributed under the law of Illinois. They refer, no doubt, to Ch. 3, Art. 2, § 162, sixth subdivision, Illinois Revised Statutes, 1951, the provision being that when there is no surviving spouse, descendant, parent, brother, sister, or descendant of a brother or sister of the decedent, the entire estate shall go in equal parts to the nearest kindred of the decedent in equal degree (computing by the rules of the civil law) and without representation.
In the appeal the lower court was not called upon to construe the will; nor are we. The single issue is whether the proof offered was sufficient to justify an order admitting it to probate.
Pertinent parts of the Probate Code of 1949 are §§ 56 and 57, Ark. Stat’s, §§ 62-2117 and 62-2118, vol. 5, pocket supp. The procedure outlined by § 62-2117 (2) contemplates that one or both of the attesting witnesses (who if living and available would be called) may be dead or beyond continental limits of the United States, or incapacitated. In either of the indicated circumstances the will may be established by testimony of at least two credible disinterested witnesses by proving the handwriting of the testator, “and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, as would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence. ’ ’
Section 62-2118 refers to the preceding procedure in respect of the testimony of subscribing witnesses and undertakes amplification by providing that the testimony of subscribing witnesses “shall not exclude the production of other evidence at the hearing on the petition for probate; and the.due execution of the will may be proved by such other evidence.”
Comments by the committee charged with the duty of drafting the Probate Code are printed as footnotes by the compilers of Arkansas Statutes. Following § 62-2118, which contains Bobbs-Merrill’s bracketed citation to § 62-2117, there are references' to Wigmore on Evidence, v. 5, 3d ed., and to Rogers v. Diamond, 13 Ark. 474. They are the drafting committee’s authority for the comment that “Common law rules as to the proof of the execution of wills are assumed to be in force without the necessity of any statute. Thus, if attesting witnesses are not available, it is possible to prove the genuineness of their signatures and to raise a presumption that the will was duly executed. ’ ’
A primary hearing resulting in .an indication by the court that evidence in support of the petition to probate was insufficient, was followed by a second sitting. The cumulative testimony was this:
There were two attesting witnesses, Nathan Kahn and Maurice Markowitz. Each resided in Chicago when the will was executed. Kahn testified by deposition and affirmed all substantial facts. The testatrix, he said, appeared to be of sound mind, and the will was executed without apparent influence, fraud, or compulsion. Mrs. Altheimer subscribed in his presence and in the presence of Markowitz. The witnesses affixed their names in the presence of the testatrix and in the presence of each other. The instrument was the identical paper the two had seen Belle M. Altheimer sign. Kahn is not related to any of the beneficiaries under the will, nor is he otherwise concerned with the subject matter.
Maurice A. Riskind and Julian Harris of Chicago testified by deposition that they and Maurice Markowitz had been law partners. Markowitz is dead. Each of the first six pages of the seven-page document was indorsed “Belle M. Altheimer,” and the initials “M. M.” and “N. K.” on each page were identified by Riskind and Harris. The indorsement “M. M.” was by Markowitz.
Executors of the estate of Ben J. Altheimer, Sr., found letters in Altheimer’s desk. Seemingly they were written in 1914 by Mrs. Altheimer to her husband. Because of a lapse of 37 years and the admitted fact that soon after 1914 Mrs. Altheimer became mentally incompetent, it was not possible (according to proponents of the will) to find recent samples of her chirography; but two bank officials with experience in observing and comparing signatures testified to their belief that the person who wrote the letters executed the will.
Seven deeds in which husband and wife joined between 1904 and 1916 were offered for comparison purposes. Six had been of record for more than thirty years. A power of attorney executed by Belle M. Altheimer July 11,1914, in favor of her husband — and utilized by him for a number of years — was introduced. Mrs. Altheimer’s signature there was similar to the one on the will.
It was shown that Mrs. Altheimer was in a Michigan sanatorium at Battle Creek in 1914, but there is no testimony that the institution was an asylum for persons mentally afflicted. Mrs. Selig, however, testified that her understanding was that Mrs. Altheimer had been confined thirty-seven or thirty-eight years. She said that after 1914 Mrs. Altheimer was brought back to Chicago, but “I would say she was first confined in 1914 in Battle Creek. At that time she could write, but after she was confined in Wisconsin . . . I don’t think there would be any specimens of her handwriting.”
If it be true, as Mrs. Selig thought, that Mrs. Altheimer’s confinement extended over a period of 37 or 38 years, the testatrix was necessarily under restraint when the will was executed, and if the maximum estimate he correct the confinement existed at the time witnesses verified her signature to the will. One of these witnesses was definite in his recollection of essential facts, and handwriting experts gave credit to the signature of the dead witness. The trial court was faced upon the one hand with the recollection of a witness who obviously endeavored to give the facts as she remembered them, and upon the other hand by the will itself, the personal testimony of one of the witnesses, the verification of handwriting by competent witnesses, and by presumptions attending execution of deeds subsequent to the period mentioned by Mrs. Selig.
It is our view that the two sections of the probate code thought by the trial judge to be in conflict were intended to be read together. Section 62-2117 (2) expressly authorizes the testator’s handwriting to be proved if neither of the attesting witnesses is available within the meaning of the section. Authenticity may be supplied by two credible witnesses who are disinterested, and by whom verity of the testator’s handwriting may be established. Here we have the deposition of one of the attesting witnesses, proof of the handwriting of the second witness, documents bearing the established handwriting of the testatrix, some of which fall within the ancient document rule, and an absence of factual data other than the recollection of Mrs. Selig whose testimony even if it stood alone would be inconclusive.
There can be little doubt that the intention of § 62-2118 is to broaden the base of investigation in those circumstances where the attesting witnesses cannot be produced. The two sections should be read together in such a way as to permit the establishment of a will by any legally admissible evidence in those cases where the attesting witnesses are dead or where they are not available.
There is another consideration that should not be overlooked. It is not inconceivable that one or both of the witnesses to a will might — for a consideration, or through prejudice or preference — recant. Are we to say that in an eventuality of that kind the testator’s wishes are to be thwarted through straight-laced construction of statutory language designed for an entirely different end? The answer is easily pronounced.
There were interventions and other procedural actions that do not, at this stage of the controversy, need discussion.
The evidence was sufficient to require that the will be probated, hence the judgment is reversed and the cause remanded with directions to enter an appropriate order.
Mr. Justice Millwee not participating.
The appeal of Elsie J. Selig has been dismissed at her petition. | [
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Wood, J.,
(after stating the facts). A purpresture is an encroachment upon the street, which the municipality may or may not tolerate at its option, if same be not also a public nuisance. But if said encroachment be such as to inconvenience the public, the municipality or aDy individual especially injured thereby may abate and x'estrain same by injunction. Wellborn v. Davies, 40 Ark. 832; Coke, Lit. side p. 277b; 1 Wood, Nuis. §§ 81, 97, et seq.; 1 High, Inj. § 761, et seq.; Barnham v. Hotchkiss, 14 Conn. 311; 1 Story, Eq. Jur. § 921, et seq.
We do not decide, but it may be conceded,' 'that the inclosure complained of is not merely a purpresture but also a public nuisance. Still, under the peculiar facts of this case, appellee cannot invoke the aid of a court of equity for its abatement. As was said by Judge Storrs in Bigelow v. Hartford Bridge Co., 14 Conn. 565, at page 580, speaking of the right of an individual to have an injunction to abate a public nuisance which he alleged was particularly and specially injurious to him: “It is a power which is extraordinary in its character, and to be exercised generally only in cases of necessity, or where other remedies may be inadequate, and even then with discretion and carefulness.”
Now, the proof does not show that appellee has suffered any injury on account of the failure of appellant to open up Vine street. Appellee, when a member of the city council, had voted for the closing of Vine street. He knew, therefore, that the street had been closed by the consent- of the city, and that it was closed at the time of his purchase. He purchased his tract of land, including a part of Vine street itself, with Vine street inclosed; and it does not-appear that he paid any more for the land than it was worth at the time of his purchase. True, appellee testified that he thought the property, without the street, was worth less than he gave for it, but could not form any estimate of how much less; and he nowhere shows that the basis of the valuation of the land at the time of his purchase was upon the understanding or expectation that the street was to be opened. The presumption would be, in the absence of proof, that the land was sold for what it was worth in the condition it was in at the-time of the sale, and not at what it might be worth at some time in the future with its conditions changed. There is no proof to overcome this presumption. We can easily understand how appellee would have been injured had he purchased of appellant a tract of land upon or adjoining which was an open street, which appellant afterwards closed, provided the closing of same reduced the value of the land. But as appellee purchased the tract with the street already closed, and at a value fixed accordingly, he is not injured by the failure or refusal of appellant to open the street. It would be manifestly unjust to permit appellee to speculate upon the opening of the street at the expense and detriment of appellant. If appellee contemplated compelling appellant to open up “Vine street” at the time of the purchase, that fact should have been communicated to appellant, so that he might have valued and sold his land with reference thereto. Moreover, the fact that appellee purchased the tract with the Vine street inclosed and eight feet of said street, paying for said portion of Vine street the same price he paid for the other portion of the tract (as shown by the obligation), proves that he recognized the rights of appellant to sell the same inclosed, and thus to deal with the same in a manner inconsistent with the easement of the public. We must deal with the purchase just as it appears. Appellee purchased an entire tract described by metes and bounds, and it included eight feet of Vine street. We are not to presume that he could have bought the tract at all without also purchasing the eight feet of Vine street. Appellant might not have been willing to sell any of the tract had not appellee agreed to take the eight feet of Vine street, and to take it, too, as it was, inclosed, and obstructing the public easement.
Whatever might be the rights of the municipality in the premises, it is clear that appellee, in a solemn transaction in which appellant parted with valuable property, has recognized lights in appellant as against the municipality or the public, and, but for such recognition, the trade might not have been consummated. We therefore think that appellee is not in a position to dispute with appellant the right to keep Vine street closed. The public is not complaining, and appellee cannot in circuitous fashion substitute himself for the public, and thus do indirectly what he could not do directly on account of his prior conduct.
Reversed and dismissed. | [
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Wood, J.
This appeal is from a conviction of murder in the first degree.
First. One of the grounds of the motion for new trial is as follows: “Because the court erred in permitting the prosecution to read to the jury, as evidence in the case, the testimony of John Henry, given at a former trial of this case; the same being irrelevant, incompetent, and no proper foundation having been laid for the introduction of same.” Witness H. W. Wells read from the bill of exceptions prepared for the first' appeal what counsel on both sides agree was the testimony of John Henry. In the midst of this testimony, as set forth in said bill of exceptions, occurs this recital in parenthesis: “At this point attorneys for defense objected to the witness testifying, whereupon the pardon was produced restoring him to citizenship, so the witness was permitted to testify and proceeded as follows,” etc.: “The defendant at the time objected to the testimony of the said John Henry being read to the jury, on the ground that no proper foundation had been laid therefor, and because the said Henry had been convicted of a felony, and it was not shown that he had ever been pardoned.”
(1) Without setting it out in detail, it suffices to state that the testimony of Henry tended to connect the defendants with the crime charged, and was therefore relevant.
- (2) The state showed that since the first trial John Henry had moved to Mississippi; also, that he had been killed.Therefore the proper foundation was laid for the introduction of his testimony taken at a former trial.
(3) Was it competent? The defendants proved that on the 1st of October, 1892, John Henry was sentenced to the penitentiary for the crime of grand larceny. The rule is well settled that the testimony of a witness, since deceased, taken at a former trial, “is open to all the objections which might be taken if the witness were personally present.” St. Louis, I. M. & S. R. Co. v. Harper, 50 Ark. 159; 1 Greenl. Ev. § 163. If witness Henry had been present at the trial, and the defendants had objected to his testimony, showing that he had been ren dered -incompetent to testify by reason of conviction of an infamous crime, it would then have devolved upon the state to show that his competency had been restored by the pardon of such offense before said witness could testify. Under the rule, supra, the testimony of the witness at the former trial stands in lieu of the witness himself, and precisely the same proof should be made as to the competency of this evidence as should be made if the witness were present in person to testify. What is the effect of the recital in the bill of exceptions in the former trial, which was read in evidence on this trial as a part of the testimony of John Henry, to-wit: “(At this point the attorney for the defendants objected to the witness testifying, whereupon the pardon was produced, restoring him to citizenship)”? It is argued in the able brief of the attorney general that this recital shows that John Henry was a competent witness at the time he testified at the first trial, and therefore his evidence was competent on the second trial, unless it had been shown by the defendants that he had been rendered incompetent since his evidence was taken at the first trial. We do not consider this position tenable for several reasons:
(a) This was a mere parenthetical recital in the bill of exceptions, in the midst of what purported to be, and what counsel agreed was, the testimony of John Henry; but the facts set forth in this recital were no part of John Henry’s testimony, and the facts which this recital disclose were not agreed to by counsel, and could not be proved by reading from the bill of exceptions in the former trial. Stern v. People, 102 Ill. 555; Roth v. Smith, 54 Ill. 432.
(b) If these facts could be established that way, the effect would only be to show that John Henry was held competent to testify at the former trial, which is ■ proved as well, without the recital, by the fact in evidence that he did testify.
(c) What was ruled as to the competency of the witness John Henry at the first trial is not res judicata on the second trial. The reversal and remand of the first case for new trial sent the whole case back to be tried de novo. The defendants on the second trial could raise anew any objection to the competency of John Henry as a witness that they raised on the first trial, and every objection which could have been raised. For instance, if they had overlooked any fact at the first trial which, if known, would have rendered his testimony incompetent, they had the right to bring forward such fact on the second trial, in order to have his testimony, taken on the first trial, declared incompetent.
(d) This brings us back to the rule, announced in the beginning, that “the party against whom the testimony of a deceased witness in a former trial is offered is allowed to make every objection which could be made if the witness were in life and personally offered for the first time.” House v. Camp, 32 Ala. Rep. 541.
The record in regard to the proof of pardon is as follows: “H. W. Wells, prosecuting attorney, testified: Question. State whether you know John Henry was pardoned before he testified, and by whom? Answer. Yes, sir; he was pardoned. (The defendants objected to this question and answer, and asked that it be excluded from the consideration of the jury. The court overruled their objection, and the defendants excepted.) Question. What became of that pardon? Answer. I obtained the pardon, and made profert of it in the case when John Henry was being examined before the court; and after the court was over I gave the pardon to John Henry, and I have never seen it since.” The best evidence of a pardon under our law is either the original or a certified copy. Section 2880, Sand. & H. Dig., provides: “Copies of official acts of the governor and * * * of all records deposited in the office of the secretary of state and required by law there to be kept, certified under his hand and seal of office, shall be received in the same manner and with like effect as the original.’'’ Section 3166 of Sand. & H. Dig. is as follows: “The secretary of state shall keep a full and accurate record of all the official acts and proceedings of the.governor.” Section 3168 provides: “He shall keep a seal of office, surrounded with the words ‘Seal of the Secretary of State, Arkansas,’ and shall make and deliver, to any parties requiring same, copies of any * * * commissions or other official acts of the governor, and all rolls, records, etc., deposited in his office and required there to be kept, and certify said copies under his hand, and affix the seal of his office thereto.”
It is an old, familiar, and wise rule of law that oral evi dence can. not be substituted for any instrument which the law requires to be in writing, so long as the writing exists, and is in the power of the party. 1 Greenl. Ev. § 86; Whart. Ev. § 63. Here the nature of the fact to be proved, to-wit, a pardon, disclosed the existence of some evidence of that fact in writing, of an official character, more satisfactory than oral proof, and therefore the production of such evidence,ora showing why it could not be produced, was demanded, before any oral evidence of the fact could be admitted. 1 Greenl. Ev. § 85, and authorities cited in note d. The rule, so far as we know, is without exception, and the authorities uniformly so declare it. Brown v. State, 28 S. W. Rep. 536; Hunnicutt v. State, 18 Tex. App. 499-520; Underhill, Cr. Ev. §.208.
The wisdom of such a rule is clearly demonstrated in this case by the general and indefinite manner in which it was attempted to prove the pardon by oral evidence; the witness simply stating that he obtained a pardon for John Henry, and that John Henry was pardoned, leaving to inference that the pardon was for the specific offense of which said Henry had been convicted. Mr. Wharton says: “When it is sought to rehabilitate a convict by means of a pardon, the pardon must accurately cite the conviction.” Whart. Or. PI. § 535.
If it be conceded that the original was lost, still it was not shown to have been beyond the power of the state to produce a certified copy of the pardon. As appellants showed that John Henry, if present, was incompetent to testify, and the state has offered no evidence, such as the law requires, to controvert that fact, it follows that the court erred in permitting the testimony of such witness taken at a foi’mer trial to be read to the jury; and, as suchi evidence was prejudicial, the error in admitting it entitled appellants to a new trial.
Second. Was it error to admit the testimony of witness James Robinson? He claimed to have been an eyewitness to the alleged murder of W. F. Skipper. This witness was shown to have been convicted of the crimes of burglary and grand and petit larceny. No less than three pardons were produced for him when he was first offered, and two others when he was re-examined. After Robinson had first testified, appellants moved to exclude his testimony for incompetency growing out of the con viction of petit larceny, of which they alleged he had never been ■pardoned. The state then produced the third or last pardon, which- is as follows: “Whereas, James Robinson, of Drew county, Arkansas, has been duly convicted in a certain court or courts of this state of certain offenses, including those of burglary and larceny; now, therefore, I, Daniel W. Jones, Governor of Arkansas, by virtue of the power and authority in me vested by the constitution of this state, do hereby grant unto the said James Robinson full and free pardon of and from the offences of burglary and larceny, or burglary, or larceny, either grand or petit, and of all felonies of which he may have heretofore been convicted, in any court or courts of this state; hereby fully absolving him of and from all such judgments of such courts, and all the effects and consequences thereof; this pardon being for the purpose of restoring said Robinson to citizenship.” Proper exceptions were saved to the reading of this pardon. Since a conviction of petit larceny disqualifies as. a witness (Hall v. Doyle, 35 Ark. 445), unless the above pardon was good for that offense, the testimony of Robinson was incompetent. But,'if it was a good pardon for petit larceny, it. was also good for the other offenses of bux-glary and grand larceny, of which Robinson is shown to have been convicted;, for all these offenses are described with the same certainty. Was it a good pardon?
(1) A pardon must be construed most strictly against the-king or the state, and most beneficially for the subject. 4 BL Comm. *401. ■ Like any other grant, if its meaning be in doubt, it is taken more strongly against the grantor. 1 Bish. New Cr. Law, § 908; Ex parte Hunt, 10 Ark. 284: Whart. Cr. PI. & Pr. § 523, and authorities cited. It can be clearly understood from this pardon that the governor intended to pardon James-Robinson of the offenses of burglary and grand and petit larceny, no matter in what county conviction for these offenses, may have been had. These particular offenses are designated in the pardon, and these were the particular offenses of which it was shown James Robinson had been convicted. If it is possible to show that the pardon was intended to cover and does cover the offense of which the witness was convicted, the .pardon, if in other respects valid, is sufficient. Com. use of Lawson v. Ohio & Penn. R. Co., 1 Grant (Pa.), Rep. 329; 1 Bish. Cr. Law, § 906; Martin v. State, 21 Tex. App. 1; Hunnicutt v. State, 18 Tex. App. 500. If appellants had shown that Robinson had been convicted of some other offenses than those named in the pardon, it may be that the terms “and of all felonies of which he may have been heretofore convicted,” used in the pardon, would not have covered such offenses. In such a case the pardon may not have been allowed, upon the theory that the governor “was not acquainted with the heinousness of the crime, but deceived in his grant.” 2 Hawkins, Pl. Crown, c. 37, § 8533; State v. Foley. 15 Nev. 64; State v. McIntire, 1 Jones (N. C.), 1; State v. Leak, 5 Ind. 359. But no imposition or fraud upon the governor could reasonably be inferred from the language of this pardon. He knew the nature of the crimes named which he was pardoning, and what a conviction thereof meant.
(2) The pardon was full and free for the offenses named, and as such, in the eyes of the law, removed every vestige of infamy from the witness which had attached by reason of the convictions mentioned. It placed him in statu quo in his relations to the state. The words, “for the purpose of restoring-said Robinson to citizenship,” were superfluous. State v. Foley, supra; Ex parte Hunt, supra.
(3) Delivery and acceptance are essential to a valid pardon. 1 Bish. Cr. Law, § 907; United States v. Wilson, 7 Pet. 150. On this point H. W. Wells testified as' follows: “I received this pardon in yesterday’s mail. It has been in my possession ever since. It was procured by telegraphing.” The pardon was absolute. It is manifest that the governor intended to grant it. He had parted with all control over it, and, as it was highly beneficial to the grantee, an acceptance of it, we think, in the absence of any proof to the contrary, must be presumed. Whart. PI. & Pr. § 533; Elsberry v. Boykin, 65 Ala. 336; 2 Greenl. Ev. § 297. Robinson testified under this pardon. Without [it, he could not have testified at all. The circumstances show delivery and acceptance. Hunnicutt v. State, 18 Tex. App. 520. H. W. Wells was an attorney. He made application for the pardon for James Robinson, and it was delivered to him for Robinson. It may reasonably be inferred from this that he was representing Robinson. “The principles,” says the supreme court of Alabama, “applicable to the delivery of a pardon and of an- ordinary deed of gift must be considered as analogous. In the case of a deed, its delivery-is generally said to be complete when the grantor has parted with his entire control or dominion over the instrument, with the intention that it shall pass to the grantee or obligee, and the latter assents to it, either by himself or his agent. The delivery may as well be made also to a stranger for the benefit of the grantee.” Ex parte Powell, 73 Ala. 517. Therefore James Robinson was a competent witness. There is nothing in the fact that he was not sworn when recalled. He had been sworn in the case before, and, even if he had not been sworn, no objection was raised to his testifying without being sworn. See authorities cited in brief of attorney general. What we have said upon the subject of the delivery of the pardon of James Robinson applies equally to the pardon of John Henry.
Third. We find no error in the court’s ruling upon the questions presented in the third, fifth, sixth, seventh and tenth subdivisions of appellants’ brief. Most of these are not likely to arise upon another trial, and have already been often passed upon by this court, — such, for instance, as the proper foundation for the introduction of the testimony of a witness taken at a former trial, the legitimate scope of cross-examination, the remarks of counsel in argument, and the improper conduct of jurors. We would not be understood, however, as licensing a repetition of some of the remarks made by counsel, by failing to condemn same. Those made by counsel to the effect that “every voice in the court house would bear out the conclusion that the testimony was sufficient” to support a verdict of guilty were highly improper, as were also those which referred to the insurance company! Remarks which may be construed [as appealing to the prejudices or passion of juries, to have their verdicts influenced by the sentiment and opinion of the idle or interested spectator, or, indeed, by any other considerations than such as are grounded upon the facts and law of the ease being tried, deserve the severest excoriation from the presiding judge, and will result in a reversal of the judgment here, where it seems reasonable or probable that such remarks had any effect in producing the verdict. But, when objection was made to the remarks of counsel in regard to the insurance company, the court admonished the counsel to confine himself to the evidence, and the counsel who had made the remarks asked the jury not to consider that part of his argument. As to what was said about the voice of every one in the court room approving the sufficiency of the evidence to sustain a verdict of guilty, that was but the mere expression of the opinion of the counsel. It was in bad form, to be sure; but jurors must be presumed to be men of intelligence, and scrupulous of the oaths which they take to try cases according to the law and the evidence. The court, in a very full and fair charge for appellants, called the attention of the jurors to their duty in this respect. He told the jury that it was their duty to give the defendants the full benefit of the presumption of innocence, which was an essential and substantial part of the law of the land, and to acquit the defendants unless they felt “compelled to find them guilty as charged, by the law of the land and the evidence in the case convincing them of their guilt as charged, beyond all reasonable doubt.” The court also took away from the jury by an instruction any consideration whatever of any insurance company in connection with the case, and in many other instructions fully protected every right of the appellants to have the case tried according to the law and the evidence. So we are of the opinion that the remarks of the counsel, under the circumstances, did not in any manner influence the verdict.
Fourth. We find no error in the charge of the court. It was as liberal to appellants as they could have asked. The only instruction of which they complain here, when fairly .construed, does no more than tell the jury that the defendants could not avail themselves of an alibi unless it was shown that they were at some other place than the place of the commission of the crime charged at the time of the killing. This instruction, when taken in connection with .the one on the subject of alibi asked and given on behalf of appellants, we do not think could possibly have misled the jury. The defendants were both on trial at the same time, and the instructions was designed to apply to both, or to each one independently, according as one or both should claim alibi. It did not mean, as contended by counsel, that, in order for one to avail himself of an alibi, he would have to show also an alibi-for the other. Moreover, the objection urged is nothing more than a mere criticism of the verbiage. If counsel desired to have the idea they contend for here more specifically presented, they should have prepared a request in the language they desired, and asked the court to give it.
(5) The court did not err in permitting witness Lephiew to testify that he saw the plat introduced on the former trial, and that the handwriting on said plat was similar to the handwriting of Redd, and that he thought it was Redd’s handwriting. Lephiew had seen and read a letter which Redd admitted he wrote. That was sufficient to establish at least a prima facie acquaintance of Lephiew with the handwriting of Redd, and was sufficient to admit his testimony. The weight to be attached to such testimony depends, of course, upon the credibility of the witness, and his familiarity, or lack of it, with the handwriting about which he testifies. 1 Greenl. Ev. § 577; Whart. Or. Ev. 551, 553; 3 Rice, Ev. p. 109; Woodford v. McClenahan, 9 Ill. 89.
(6) The twenty-seventh and twenty-eighth grounds of the motion for new trial are as follows: “That the verdict was contrary to the evidence, and was the result of passion and prejudice pet’vading the minds of the inhabitants of Drew county.” The prosecution has proceeded upon the theory that Skipper was murdered by appellants. The defense upon the theory that Skipper committed suicide, but, if murdered, that they were not the guilty agents. These are purely questions of fact, and, inasmuch as there must be a new trial for the error of law mentioned supra, the majority refrain from expressing any opinion concerning them. Speaking for myself, only, upon this point, after a careful examination of this large record, which I necessarily had to make in preparing this opinion, my conclusion is that, under the rule announced by this court in Richardson v. State, 47 Ark. 567, there is evidence to support the verdict here, both as to the corpus delicti, and as to connection of the defendants with the crime charged. For the error in admitting the testimony of John Henry, the cause is reversed, and remanded for new trial. | [
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Holt, J.
Appellants, R. H. Hannah and wife, are the owners of Lot 12, Block 107, Park Hill Addition to the City of North Little Rock, and appellees, the Daniels, are the owners of lots 4 to 10 inclusive, in the same block, appellees’ lot 7 having a common boundary line with appellants’ lot 12 on the rear. Appellants acquired title to lot 12 from the owners, J. C. King and wife, on June 16, 1950, by an unconditional warranty deed, and took possession July 25th thereafter.
Shortly after taking possession and moving into their new home, appellants observed Daniel making-preparations for building a pond on the rear of his lot 7 and lot 11 and trespassing- on the rear of appellants ’ lot 12. Upon inquiry, appellants learned from Daniel that-he, Daniel, claimed a permanent easement by virtue of an oral (unrecorded) agreement which he had obtained (prior to appellants’ purchase) from the Kings, appellants’ grantors and other nearby lot owners, to use-that part of appellants’ lot in the northwest corner, measuring about 37 feet north to south along the west line and to a depth of about 25 feet over on appellants’ property, on which to construct (and fence) a pond. The north boundary line of appellants ’ lot was 131 feet long (east to west) and the south boundary line 125 feet (east to west). The rear of the lot (north to south) was 48 feet wide and the front 60 feet.
When appellants objected to any trespassing- by appellees, and began to fill in and improve the rear of their lot to their property lines, and build terraces, Daniel, by suit, sought to enjoin appellants. By cross-complaint appellants asked for permanent injunctive relief against Daniel to restrain and prevent him from building the pond, fence and dam, and from trespassing on their property (Lot 12). J. C. King and wife, appellants’ grantors, were made defendants by appellants, and such relief as equity might warrant was prayed against them on their warranty in their deed to appellants.
The trial court found the issues in favor of appellees (Daniel and King) and permanently enjoined appellants from interfering with appellees’ alleged easement rights.
"We hold that the trial court erred in so doing.
After a careful consideration of all the evidence, we have concluded that the preponderance thereof is against the Chancellor’s findings.
It appears undisputed that appellants had no knowledge from the Kings or from any one of an alleged oral (unrecorded) agreement for an easement between the Kings, appellants’ grantors, Daniel and other adjoining property owners. When the Kings executed their unconditional deed to appellants, they admit they did not tell appellants of any alleged agreement. In fact, at appellants’ request they executed on the same day on which the deed was made, an affidavit containing the following provisions: “That I/we, Jesse C. King and Jessie I. King — , being first duly sworn, on oath state that I/we are the owners of the following described lands situated in the County of Pulaski, and State of Arkansas, to-wit: Lot Twelve (12), Block Hundred Seven (107), PARK HILL ADDITION to the City of North Little Rock, Arkansas.
“I/we further certify, that there is no adverse occupant of said lands; that there are no unrecorded options to purchase, sales contracts, or lease agreements outstanding affecting said property; and that there have been no improvements made thereon during the past 100 days for which a Mechanic’s or Materialman’s lien may be filed.’ ’ (Duly signed and acknowledged by the Kings).
In these circumstances, appellants, having no actual notice of the alleged agreement, unless the preponderance of the evidence shows that they had what amounted to a constructive notice of the existence of a claimed ease ment, then they were not bound thereby. “A purchaser of real estate is charged with notice of an easement where the existence of the servitude is apparent upon an ordinary inspection of the premises.” 17 Am. Jur., % 130, p. 1018.
We announced the rule in this language in Waller v. Dansby, 145 Ark. 306, 224 S. W. 615: “The general rule is, that whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty as in the case of vendor and purchaser, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding. Or, as the rule has been expressed more briefly, where a man has sufficient information to lead him to a fact, he shall be deemed cognizant of it.”
With this rule in mind, we examine the evidence.
At the time of appellant’s purchase, he observed the physical condition of his lot. It was small and obviously crowded with a two-story residence with basement. It dipped rather sharply to the rear and the back end was largely covered with weeds and underbrush. It was low and swampy and where the two lots met a small ravine had formed affording drainage. For a distance of about 31 feet on appellants ’ lot across the southerly part of the ravine, Daniel had erected a small earth dam. A fair perspective is afforded us by many pictures, maps and plats in evidence.
At the time of appellants’ purchase no pond was in process of construction on appellants’ property. There was, however, at the time of purchase, in the northwest corner of the rear of appellants’ lot also a small narrow rock wall, a few feet from appellants ’ west property line and parallel with it, extending apparently about 18 feet over on appellants’ lot and had the appearance of a retaining wall. As to this wall and dam, Dr. Hannah testified: “Q. Prior to that time had Mr. Kooistra attempted to tell you where the corner of the property was located? A. The only thing he said, one corner was back by tbe telephone pole and the other one off to the right forty-eight feet. That is all I got ont of him. Q. That is all he told you? A. That is the only information he gave me. Q. Now then, was this structure, in its character as a dam, I mean by that a devise intended to act as a barrier to the flow of water, was it visible to you as such on the occasion that you looked the property over? A. It did not. It looked like maybe somebody had built a retaining wall there and left off the lot below. Q. That is the lot south of yours? A. South of me. Q. Or the Stacy lot and the lower slope of that lot does have the appearance of being about surface of that rock wall? A. That is right, that rock wall. Q. Now then, when did you find out that Mr. Daniel claimed the right to maintain this thing as a- dam to impound water and make a lake upon part of your property? A. After I had it surveyed I had markers placed and one evening I came home and my wife said they had been in that place back there with bulldozer and knocked my marker down and running around there moving the mud, churning that place up. . . . Did you have a conversation with Mr. Daniel? A. I did. Q. What was it about? A. I asked him what it was down there. He told me he was going to build a pond. -1 told him I didn’t want any pond on the back end of my property. Q. And what was his response to that? A. He said I could be a good neighbor or be an ass. . . . Was there anything in the outward appearance of that property there at the time you bought it that would cause you to believe that then, or any time in the future, it was intended that a lake or pond would be made back there which would be on your property or anybody else’s property? A. Certainly not, it is not large enough. There isn’t sufficient space to make a lake of any kind without having stagnant water. ’ ’
As indicated, we think the preponderance of the evidence is against appellees’ contention that the physical condition of lot 12 at the time of appellants’ purchase was such, by reasonable inspection, to make it apparent of the existence of a servitude that would charge them with, notice of an easement. The narrow rock wall on appellants’ property did not constitute-adverse holding by Daniel sufficient to put Hannah on notice of any claim of an easement.
The decree is reversed and the cause remanded with directions to grant appellants the injunctive relief prayed in their cross-complaint.
Ward, J., dissents. | [
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Archer Wheatley, Sp. Justice.
July 17, 1951, Nathaniel Reece, age 16, lived with his father, Aron Reece, on land occupied by Bill Webster. A tractor belonging to Bill Webster and operated by his brother, Oscar Webster, exploded as Nathaniel Reece walked past it on the farm road leading to Reece’s home. As a result of this explosion, burning gasoline was thrown upon Reece inflicting burns of such serious nature that he died therefrom 46 days later.
Suit was filed by Aron Reece as Administrator of the estate of Nathaniel Reece and individually, to recover damages, it being alleged that the explosion was due to the negligence of Bill Webster as the owner of said tractor through the faulty operation thereof by his servant. There was the specific allegation:
“. . . and specifically alleges the negligence of the said Bill Webster, his servants, agents and employees in permitting raw gasoline to accumulate on or about the tractor when in operation, that when volatilized by the heat of the tractor, it would produce a powerful and dangerous explosive, producing the results herein alleged.”
The ease was tried before a jury and resulted in a verdict for the defendant.
Evidence was introduced by the plaintiff tending to show that there was a sediment bulb in front of the tractor motor; that there had been a defect in this bulb as a result of which gasoline dripped. There was no expert testimony showing the damage to the motor, nor was there any suggestion of any kind that the accident could have been caused in any manner other than that gasoline dripped from the sediment bulb on to the hot motor.
The Complaint contained only the one specific allegation of negligence and did not leave any doubt with respect to the cause of the explosion.
The plaintiff asked the Court to give three instructions on the doctrine of res ipsa loquitur. The Court refused these requests saying that he did so because, “The proof in this case conforms to the allegations in the Complaint, which are allegations of specific acts of negligence and that the application of the doctrine of res ipsa loquitur would mean giving the jury an alternative if they did not believe the testimony of the plaintiff as to specific acts of negligence.”
The three instructions requested, read as follows:
No. 2
“You are instructed that if you find from a preponderance of the evidence that the defendant owed a duty to the plaintiff and his intestate to use care and an explosion occurred, causing injury, and the explosion is caused by the thing or instrumentality that is under the control and management of the defendant, his servants, agents or employees, and the explosion is such that in the ordinary course of things it would not occur if those who had the control and management use proper care, then, in the absence of evidence to the contrary, this would be evidence that the explosion occurred from lack of proper care. ’ ’
No. 4
“If you find from a preponderance of the evidence that the tractor exploded and caused the injuries complained of; and you further find from a preponderance of the evidence that there was no negligence on the part of Aron Reece or his intestate Nathaniel Reece and that the instrumentality causing the explosion was in the exclusive control and possession of the defendant, Bill Webster, his servants, agents or employees and you find from a preponderance of the evidence that the explosion is such that in the ordinary course of things it would not have occurred if those who had the control and management use proper care, then, in the absence of evidence to the contrary, you are instructed that the mere fact of the explosion of the tractor raises a presumption of negligence on the part of the defendant and your verdict will be for the plaintiff unless you should find that the presumption of negligence has been overcome by evidence on the part of the defendant.
“Upon proof of the fact of the explosion, as set out in the above instruction, the burden of proof then shifts to the defendant to show that he was free from negligence and upon the failure of the defendant to meet that burden of proof you will be warranted in finding for the plain-
“ You are instructed that if you find from a preponderance of the evidence that the tractor exploded and caused the injuries complained of and that the explosion and injury is such that in the ordinary course of things would not occur, if those who had such control and custody use proper care and you find by such preponderance of the evidence that the control and custody of the tractor was in the defendant, his servants, agents or employees, the happening of the explosion with the resulting damage is prima facie evidence of negligence, and shifts to the defendant the burden of proving that it was not caused by the negligence of the defendant.”
The doctrine of res ipsa loquitur was developed to assist in the proof of negligence where the cause of an unusual happening connected with some instrumentality in the exclusive possession and control of defendant could not be readily established by the plaintiff. The theory was that since the instrumentality was in the possession of the defendant, justice required that the defendant be compelled to offer an explanation of the event or be burdened with a presumption of negligence.
The various Courts of the country have not been in agreement with respect to either the necessities of pleading or the effect with respect to burden of proof in bases of this kind. The rule in Arkansas, however, seems to be well established to this effect:
(1) The fact that a specific allegation of negligence is pleaded does not prevent the application of the doctrine of res ipsa loquitur. Biddle, et al., Receivers v. Riley, 118 Ark. 206, 176 S. W. 134, L. R. A. 1915F, 992; Johnson v. Greenfield, 210 Ark. 985, 198 S. W. 2d 403.
(2) The effect of the doctrine where applicable does not shift the burden of proof on the whole case from the plaintiff to the defendant, but simply requires the defendant to go forward with the production of testimony. In other words, the effect of the doctrine is to facilitate the proof of negligence by the plaintiff by adding a presumption to his other proof. There is an extended discussion of this feature in Coca-Cola Bottling Company of Helena v. Mattice, 219 Ark. 428, 243 S. W. 2d 15.
Returning to the instructions requested in this particular case, we find that the second paragraph of requested instruction No. 4 was specifically disapproved in the Mattice case. On the other hand the Court there stated that it found no objection with an instruction identical with requested instruction No. 5 in this case. (The writer is unable to see sufficient difference in the two instructions to justify the approval of the second one.) There was, therefore, no error on the part of the learned Trial Judge in refusing requested instruction No. 4. Instructions Nos. 2 and 5 were in proper form if the circumstances called for their use.
Appellants’ counsel very frankly and ably states another rule governing the doctrine of res ipsa loquitur as follows:
“Of course, in cases where the plaintiff has full knowledge and testified to the specific act of negligence which is the cause of the injury complained of, or where there is direct evidence as to the precise cause of the accident and all of the facts and circumstances attendant upon the occurrence clearly appear — then the doctrine would not apply. ’ ’
In this case, we think not only the complaint, but also the testimony showed a specific act of negligence, which was the use of a tractor with a leaky sediment bulb. There is no suggestion either in pleadings, proof or argument, that there was any other possible contributing factor to the explosion. Under these circumstances the case of Southwestern Gas & Electric Company v. Deshazo, 199 Ark. 1078, 138 S. W. 2d 397, is controlling. The Court there used the identical language above quoted from appellants’ brief.
We therefore conclude there was no error in refusing the requested instructions.
Affirmed.
Mr. Justice Holt and Mr. Justice Mill wee dissent; Mr. Justice McFaddin concurs; the Chief Justice not participating. | [
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J. Seaborn Holt, J.
Dr. James Bockman, appellee, a practicing physician, has, since 1937, operated a Clinic in a structure within that part of the City of West Helena (population 7,000) designated, by a Zoning Ordinance, (No. 494 enacted April 17, 1951) as Residential Zone “A”. The building housing his Clinic is one story, on a lot 66 ft. x 132 ft., and consists of six rooms — an X-Ray room, a laboratory, examining room, one bath room, two waiting rooms (one for white and the other for Negro patients), and a porch, 21 ft. x 8 ft. Appellee’s residence is in another part of the city.
Dr. Bookman made proper application, in accordance with provisions of the Zoning Ordinance, for a permit to expand and enlarge his present building beyond its present foundation “to take care of expansion in business” by adding another room, 16 ft. x 25 ft. on the south side, within eight feet of the property line, his purpose being to enlarge his waiting rooms and add a separate rest room and toilet for Negro patients.
When appellee was denied the requested permit, first by the Building Inspector, then by the Appeal Board, and finally by the City Council, and had exhausted his administrative remedies, he appealed to the Chancery Court and some twenty-five property owners were permitted to intervene and joined in the City’s contention that appellee’s application should be denied for the reason that his proposed enlargement of his building would be for a nonconforming use not permitted under the Ordinance and alleged more specifically, in effect, that “the terms of the Ordinance are fair and equitable and in conformity with established building codes; that such nonconforming use, if permitted, would result in a diminution of the value of their property and endanger the public health, safety and welfare, and that neither the terms of the Ordinance or the actions of the Officials of the City of West Helena were arbitrary, illegal, or unreasonable.”
The trial court found the issues in favor of Dr. Bock-man and “that the denial of the permit of the plaintiff in the circumstances is unreasonable, arbitrary, discriminatory and void; and that the plaintiff is entitled to the relief prayed.”
This appeal followed.
The rule appears to be well settled that, in general, the enactment of Zoning Ordinances is constitutional. However, such ordinances being in derogation of the common law, must be reasonable and not arbitrary, must not unreasonably deprive the property owner of the use of his property, and their enforcement must not be arbitrary, capricious or unreasonable. We said in City of Little Rock v. Sun Building & Developing Company, 199 Ark. 333, 134 S. W. 2d 582:
“In all the cases in which zoning ordinances have been upheld, it is recognized that such legislation frequently, if not generally, operates to reduce the value of property the use of which is restricted. But these cases are to the effect that such damage does not constitute the taking of private property within the inhibition of the Constitution (Art. 2, § 22) against the tailing of private property for public use without making compensation therefor, and that it is not required that the owner be compensated for this loss of value. The theory is that the owner of such property is sufficiently com pensated by sharing in the general benefits resulting from the exercise of the police power. . . . This power may not be arbitrarily used, and must in all cases bear a definite relation to the health, safety, morals and general welfare of the inhabitants of that part of the city where the property zoned is situated. ’ ’
Here, it appears that the house in question is located in Residential Zone “A” under the terms of the Zoning Ordinance, and was owned and occupied by Dr. Bockman as a Clinic at the time the Ordinance was en acted. He has not used it for residential purposes for several years. It appears undisputed that, under the terms of the Ordinance, Dr. Bookman’s use of the property is a nonconforming one.
Section 2 provides: “USES: In each zone as herein established, land and structures may be used only for purposes specified in Section 7 of this Ordinance.”
Section 3 provides: “NONCONFORMITY USES: Any use or structure existing at the time of enactment or subsequent amendment of this Ordinance, but not in conformity with its provisions, may be continued with the following limitations: Any use or structure which does not conform to this Ordinance may not be: 1. Changed to another nonconformity use ... 3. Extended except in conformity to this Ordinance.”
Nor is the proposed use a permitted one as provided in Section 7: “USES AND REQUIREMENTS WITHIN THE ZONES: 1. RESIDENTIAL ZONE ‘A’ A. PERMITTED USES: In Residential Zone ‘A’ as hereinabove created and defined, the following uses shall be permitted: Detached one-family dwellings, church, school offering general education course, library, general purpose farm, garden, nursery, private club not conducted for profit, municipal recreation or water supply use: and accessory use.”
The “accessory use” referred to in Section 7, as defined in Section 7, “G”, could not apply to Dr. Bock-man for the reason that he does not make his residence in the structure. This section provides: “ G. ACCESSORY USE DEFINED: The phrase ‘accessary use’ as herein used shall include: Structures and uses (such as private garages and coal sheds) customarily incidental to and on the same lot with a permitted use; customary home occupation, such as offices of a doctor and dressmaker, incidental to a permitted use, provided such occupations are conducted in the main building and only by a person resident in said building.”
Section 7, “C” provides: “In Residential Zone ‘A’, all uses not specifically permitted, or permissible, upon approval of the Appeal Board shall be prohibited.” Section “D” provides: “MINIMUM YARD SPACE REQUIREMENTS: In Residential Zone ‘A’, all structures shall have yard space of not less than 20 feet depth in front of said structure, and 20 feet depth in the rear. All structures shall have side yard space of at least 10 feet on each side.”
It is undisputed that the proposed expansion would be within eight feet of the south property line, contrary to the limit of ten feet in said Section “D”. It also appears that the City offered to permit appellee to enclose the porch and use it for an additional waiting room space and for toilet or bathroom purposes.
When all of the facts are considered, we have concluded that when the City denied appellee a permit to expand his structure for a nonconforming use to within eight feet of the property line on a small, crowded lot, in a growing residential section, it acted within its proper police powers to protect the health, safety,' morals and general welfare of its inhabitants, did not act in an arbitrary or unreasonable manner, and that the preponderance of the testimony is against the trial court’s finding to the contrary.
Accordingly, the decree is reversed and the’ cause remanded with directions to enter a decree consistent with this opinion. | [
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Griffin Smith, Chief Justice.
Appellants, who were plaintiffs below, sought to have a trust declared in respect of 320 acres formerly owned by James E. Neill, who died intestate in 1901, leaving a widow and ten children, one of whom was J. A. Neill who became a well-known physician and surgeon. Dr. Neill was the oldest child and had been practicing his profession about eighteen months when his father died. James E. Neill’s widow died in 1906. Six of the ten children were living when this suit was brought. Four were minors when their father died. Before taking medical courses Dr. Neill attended Hendrix College and Draughon’s Business College. He became a stockholder in Bienville Lumber Company and was physician and surgeon for that organization, with headquarters at Laberta, La.
Shortly after James E. Neill died one of his sons, W. B., or “Bert” Neill, was made administrator of the estate, the purpose — as expressed by a sister who was a plaintiff in this action — being to collect and distribute insurance amounting to $800. There are frequent references to a contention that W. B. filed but one report and that the administration has not been closed. The controversy does not involve the insurance money or other personal property; nor does it question disposition of a separate tract of 120 acres owned by James E. Neill, and a lot in the town of Waldo.
Controversial Issues. — The land embracing 320 acres was purchased by appellants’ ancestor in 1873. At that time the St. Louis Southwestern Railway had not been built through Columbia county and the town of Waldo did not exist. The acreage acquired by James E. Neill, however, is near Waldo. The amount paid for the acreage is a matter of dispute. In copying the deed record the clerk thought the consideration was $10,000, but by agreement a photostatic copy has been brought up — the original deed having been lost. The work is typical of the care exercised by skilled penmen of that period; and, although the written word might be mistaken for “ten”, we feel certain that “two” was intended. The letter following t does not resemble an e, as will be seen from the inset plate.
Through January, 1909, and until September 26, 1913, Dr. Neill procured deeds from eight of his brothers and sisters, each of whom was of full age when the deed was executed. The amounts ranged from $912.82 paid W. B. Neill to a low of $600 to four others. One was paid $623.33, another $700, and another $800. In procuring some of the deeds Dr. Neill called personally; other deeds were sent by mail and so returned. The total paid for eight of the ten shares was $5,436.15. There was testimony that in one or two instances some of the money was withheld to be paid to another, but no contention is made that this was contrary to wishes of the parties. There was testimony that Dr. Neill sold or permitted to be sold $2,000 worth of timber from the place.
Dr. Neill did not acquire the interest one of his sisters would have inherited had she not predeceased her father. She left two children. Their guardian'petitioned for partition and in consequence of a settlement the children received the separate tract of 120 acres heretofore referred to.
About 1915 the Bienville Lumber Company moved to Mississippi and Dr. Neill went along, residing at Forest. He died Sept. 4, 1942, survived by his widow. The following April W. B. Neill bought the land (less half the minerals) from Dr. Neill’s widow and children, paying $20 per acre, or $6,400. For a number of years Dr. Neill experienced nervous attacks and at times was unable to attend to business, although a deposition by one of his attorneys spoke of the affliction as intermittent. The attorney said that prior to the nervous seizures Dr. Neill was a highly intellectual — even brilliant — man, and that he had the full confidence of all who knew him. His death is referred to as having occurred “on the Bahama Islands”. He was adjudged incompetent in 1931, and again in 1939.
W. B. Neill testified that he remained on the farm for a long time after his father died, took general control, helped rear the younger children, and permitted them to buy anything reasonable and charge the amount to his account. This continued until he married and it became apparent that the arrangement could not continue indefinitely. One of the brothers, “Ed”, refused to help with farming operations and there was general dissatisfaction on that account. After marrying W. B. moved 11 to town ’ ’, but told his mother and a sister they were welcome to live with him as long as they wanted to. — “Ed was old enough and big enough to take care of himself. I had looked after him for four years, so I thought he should take care of himself ’ ’. But his mother and a sister went to live with Mrs. Fincher, one of the girls who had married. After four months, according to W. B., Mrs. Fincher got tired of her mother “and threw her things out and sent her to my house to die”.
This arrangement continued during the brief remaining period of Mrs. Neill’s lifetime. Dr. Neill (according to W. B.’s testimony) concluded that this brother had faithfully discharged his obligations and that from a credit standpoint matters stood in W. B.’s favor. The Doctor thereupon suggested that W. B. return to the farm and operate it for a few years, rent-free. Dr. Neill paid the taxes. Before Dr. Neill bought the several interests Mrs. Fincher was dissatisfied. She insisted that the property be divided, but wanted 32 acres (a tenth) “right up here nearly to town”. Dr. Neill offered her ten acres. When Mrs. Fincher failed to get the full acreage she began trying to sell her interest. It was then, according to W. B., that Dr. Neill concluded to buy the outstanding shares, the purpose being’ to keep the property intact. Mrs. Fincher’s version of this transaction was that she begged for ten acres “as my part of the 320-acre estate”.
If the Chancellor, or we, could accept Mrs. Fincher’s version of why the various brothers and sisters sold to Dr. Neill the situation would resolve itself into one wherein the dominant brother — the older member of the family whom all others had been taught to “look up to” and obey with implicit faith, bought the individual shares with no idea of personal profit and with complete disregard concerning recoupment of the money thus expended. The Doctor’s plan, according to Mrs. Fincher and those who supported her testimony, was to acquire the estate, keep it in repair, pay taxes, and depend upon rentals for reimbursement; then, as a final gesture to family loyalty and affection, he would will the property to each interest-holder. Tier brother did not, in so many words, say that he was holding the property in trust, or that he intended to keep a promise made to his father— that the land would be retained intact for all of the children, — “but all through the years he said things that would indicate he had nothing else in mind”.
Mrs. Fincher was questioned regarding a lease executed by Dr. Neill’s widow and children conveying an undivided fourth interest in minerals pertaining to the 320-acre tract. This lease was in the name of Lester A. Fincher as trustee. Mrs. Fincher strongly asserted that she had been “double-crossed” by her son and others; that as soon as she ascertained what had occurred she demanded that the title be “put back in L. E. Fincher’s name”.
Before W. B. concluded his purchase Mrs. Fincher had undertaken to buy the land from Dr. Neill’s widow and children, and at one time the widow had agreed to sell to her. In explaining why she attempted to purchase the property at a time when she was claiming an undivided interest in trust, Mrs. Fincher said that her trip to Mississippi was in response to a letter from Mrs. Neill. She did not tell the Doctor’s wife that her purpose was to acquire the property for the benefit of herself and her brothers, sisters, nieces and nephews:— “I didn’t think about it and didn’t see where it was necessary”. Oil and gas royalties were at one time selling for $50 per acre. Mrs. Fincher had not tendered mineral or royalty deeds to others she now says were owners of the land, but she was “looking after their interests”.
Further testifying, W. B. said that he had given three of his five children small homesite tracts and had sold other parts of the property to them. These children had built homes on the lands. Of the original 320 acres, 66 were undisposed of.
Not all of the descendants of the common ancestor joined in demanding distribution. Mrs. John P. Cox, James E. Neill’s daughter and therefore W. B.’s sister, wrote from Hope that she unequivocally sold her interest to Dr. Neill. The transaction was voluntary, and “there was no expectation whatsoever that my part of the J. E. Neill estate would ever be reconveyed to me”. In another letter she said: “ I do not own any part of that land; and furthermore I do not think it right to bring suit against my brother Bert. ... I refuse to go to court or be a party to defeating [my brother’s claim] ”.
The complaint was filed March 20, 1950 — more than 36 years after the last of the eight deeds was executed and 43 years after delivery of the first. It is urged that Dr. Neill’s nervous condition was of such a nature that those presently claiming or their predecessors were reluctant to discuss business with him for fear of adding irritation to an existing illness. There is evidence, however, that the Doctor was employed by the Lumber Company during the greater portion of this time, and it is inferable that after the first adjudication of insanity in 1931 and before the second commitment in 1939 he had lucid intervals. The Doctor was represented by competent counsel, including Hon. Percy M. Lee, now a distinguished member of the Mississippi Supreme Court.
It is convincingly shown that Dr. Neill did not leave a will, and it is equally clear that his course of conduct was one dominated by a desire to deal fairly with his brothers and sisters. That he should have intended to will the home place to those from whom he purchased is not inconceivable, but if this purpose actuated his conduct in procuring the deeds his failure to leave some memorandum expressive of that intent is contrary to life habits, methodical training, and a course of fair dealings.
Mrs. Fincher, quite obviously, was in a sense the agent of other members of the family in provoking the litigation. The testimony of most of those associated with her is of a pattern conforming to her theory that an implied, constructive, or resulting trust came into being with assurances by Dr. Neill that the overall purpose in procuring deeds was to keep the farm intact and return it to his brothers and sisters or their heirs when his own course had been run.
The Chancellor’s views were that the amounts paid to the various grantors were substantial. In the short opinion there is no suggestion that the trial court believed the payments to have been inadequate or that they were made in circumstances leading a reasonable person to believe that the transactions were other than buy and sell on unconditional bases. The rule is that implied, constructive, or resulting trusts must be established by clear and convincing evidence — something more than a preponderance. Barger v. Baker, 218 Ark. 457, 237 S. W. 2d 37. The case cites Ripley v. Kelly, 207 Ark. 1011, 183 S. W. 2d 793, where it was said that the evidence must be “full, free and convincing”.
Tested by this rule the Chancellor correctly dismissed the cause for want of equity.
Affirmed. | [
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Griffin Smith, Chief Justice.
The appeal is from a judgment finding the defendant guilty of rape and fixing his punishment at life in the penitentiary.
The details are too sordid and revolting to warrant extended comment. It is sufficient to say that there was substantial evidence to sustain the jury’s verdict, challenged in the motion for a new trial.
Other matters raised by the motion were: (a) The court erred in permitting the sheriff to select bystanders for service on the jury after the regular panel had been exhausted; Ark. Stat’s, § 39-220. (b) Instructions 1 and 2 given at the State’s request were erroneous; (c) the defendant’s requested instructions Nos. 2, 5, and 6 should have been given.
The objection relating to selection of the jury is not properly before us. The record does not disclose the irregularities complained of, hence there is a presumption the law was followed. Certainly an objection was a prerequisite to this court’s duty of review. Burrow v. State, 177 Ark. 1121, 7 S. W. 2d 28.
The defendant has not filed a brief, therefore his grounds for objecting to instructions given or refused must be deduced from the motion for a new trial. Again we are met with the defendant’s failure to object to some of the instructions as given or as modified, and in making only a general objection in other instances. General objections reach only inherently erroneous matters.
The defendant sought to have the jury instructed that á verdict of guilty would not be proper unless the assaulted female failed to resist or make an outcry through fear of death. As modified the instruction was that fear of great bodily harm was sufficient. Such an instruction has long been approved. Boyd v. State, 207 Ark. 830, 182 S. W. 2d 937.
No error brought to the court’s attention by the record is disclosed and the judgment must be affirmed. | [
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Griffin Smith, Chief Justice.
Mixed questions of law and fact are presented, but the appeal requires us to determine (a) whether the edges or lower border of the roof of a building constructed on appellees ’ property and projecting portions of a concrete foundation, violate terms of the bill of assurance common to each proprietor; (b) whether the unauthorized use of appellants’ driveway by those employed by appellees to do construction work damaged the driveway and if so to what extent; (c) were the truck drivers whose activities were alleged to have occasioned the damage employees under control of an independent contractor to whom appellants should look, rather than to the lot-owners. For brevity the parties will be identified as Jernigan and Baker.
Jernigan owns Lot G, Kingwood Place. Baker is the owner of adjoining Lot F. All of the land in Kingwood insofar as this litigation shows was formerly owned by Pulaski Investment Company, a corporation. The deeds to various parcels are tied to a bill of assurance which provides that no house shall be erected on any lot “nearer than seven and a half feet to the inside line of the building lot or plot” selected for such construction. Outbuildings, garages, and servant quarters are included in the restrictions.
The admittedly unusually wide eaves of which complaint is made extended to within less than four feet of the property line. Baker testified that according to a survey to which he referred the distance from the brick-walled side of his house to the property line varied from 7.65 feet at the rear to 7.55 feet at the front.
It is Jernigan’s contention that the objectionable eaves extended to within three and seven-tenths feet of the property line, thus obstructing the view in circumstances where the bill of assurance contemplated that the clear space between buildings on adjoining lots should be fifteen feet — seven and a half feet on each side. Baker admits the physical facts with perhaps slight variations in measurements, but thinks it unreasonable to attribute to those who planned Kingwood Place and authors of the bill of assurance an intent to extend the restrictions to incidental projections. This reasoning would restrict violations to solid walls and the like.
A second contention is that the trial court was without jurisdiction because, assuming there had been an encroachment, an adequate remedy at law by way of damages was available.
The difficulty with this defense is that the bill of assurance contains express language relating to any ‘ ‘ attempt” to violate the covenants and restrictions. By paragraph 10 any person owning lots in the addition is given the right to prosecute proceedings at law or in equity against any person violating or attempting to violate the covenants, “and to either prevent or recover damages for such violation.”
We have frequently held that jurisdiction of the subject-matter cannot be conferred by consent. Strahan v. The Atlanta National Bank of Atlanta, Texas, 206 Ark. 522, 176 S. W. 2d 236.
Pacts in the case before us show that the building was not completed until around November 1, 1951. On July 16th Jernigan, through his attorney, wrote Baker and complained that his driveway was often blocked by trucks and that it was being damaged. He also complained of the projecting eaves. It is in evidence that prior to this time Jernigan had complained to Glen Henry, the contractor. Henry’s version of these conversations was that Jernigan consented to “go along” without interfering with such usage provided the driveway would be restored to its original condition. While the work was in progress cars were frequently parked in such a way that Jernigan could not use the driveway. It was admitted, however, that some of these were in charge of persons who w;ere inspecting the now building — and, inferentially, Baker was not responsible for this class of interference.
When the scope of the transactions is considered we think the Chancellor correctly declined to dismiss for want of jurisdiction. An amended complaint alleged that Jernigan had sustained damages to the extent of $1,000 by reason of the encroachment, that he would continue to suffer damages if the obstruction were not removed, and that monetary relief would be inadequate.
While Baker and his contractor could have been mis1 alien in assuming that projecting eaves (extending more than three feet beyond the deadline) were not within the prohibitory language of the bill of assurance, the test is not what they honestly believed. The controlling considerations are, first, What was the purpose in inserting the restrictions? and, secondly, was the language sufficient to convey to reasonable minds the purposes Jernigan contends were intended? Each question must be answered in the affirmative. In Leffingwell v. Glendenning, 218 Ark. 767, 238 S. W. 2d 942, it was held that the owner of a lot whose contractor inadvertently built a retaining ■wall separating adjacent property was under legal com pulsion to remove a protrusion varying from a fraction of an inch to nearly four inches over a distance of 26 feet.
In the case at bar Baker built on his own land, and to this extent the transaction differs from the Leffingwell controversy. But, though he built on his own land, he violated rights of others who bought lots in reliance upon the bill of assurance. Quite clearly the primary purpose was to guarantee that an unobstructed area of fifteen feet would separate buildings in all cases where the assurance applied. No one could seriously argue that eaves are not a part of the attached building, and in the instant case a projection of more than three and a half feet constituted an invasion of the area Jernigan had every cause to believe would always remain unobstructed. It follows that a mandatory injunction requiring removal should have been given.
The evidence is conflicting as to what damage Jernigan sustained through use of his driveway. The original demand was $500, but this was reduced by the Chancellor to $50. Henry testified that complaint was made by Jernigan and that he promised to restore the property to its original state. While Henry thought the damage was insignificant, Baker testified that “probably” the use of a bulldozer for half a day would be required at a cost of “approximately” $25, and that about three loads of crushed rock at $18 per load would be required. His estimate as a whole was “less than a hundred dollars.” This did not, of course, allow for inconvenience. It is our view that any award under $100 would be inadequate, and to that extent, and in the failure to require removal of the eaves, the decree is reversed.
To whatever extent the foundation projection creates a visible obstruction, its removal would be in order. However, the slight projection appears to have been ground covered, so no order affecting it will be made at this time. If, on petition for rehearing, the right is insisted upon, further consideration will be given. | [
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Robinson, J.
This is an appeal from a decree holding that owners of adjoining lots each have an easement over that portion of the other’s lot, on which is located a driveway used by both parties.
Appellant is the owner of lot 3, block 22, Park Addition to the City of Little Rock, and appellee is the owner of the adjoining lot 4. The parties live on their respective properties, -and between the houses there is a two-strip concrete driveway. Each strip of concrete is two feet in width, and the overall width of the driveway is six and one-half feet. With the exception of the north two feet, all of the driveway is located on lot 4, and the concrete strip thereon is 73.6 feet in length, although the driveway actually extends three feet beyond the paving. Appellant, Wendler, owner of lot 3, attempted to build a fence between the two concrete strips, and appellee filed this suit to enjoin the construction of such fence and alleged that there is an easement in favor of the owner of lot 4 over that part of lot 3 on which the driveway is located. The chancellor held that each of the parties has such easement. The decree provides: ‘ ‘ That this driveway was constructed many years ago by a predecessor in title to lot 4 and has been used as a driveway by and for the convenience of owners of both lots for a period of time in excess of thirty years; that the defendant has constructed a fence along the boundary between the two lots; that a temporary restraining order restraining the defendant from constructing said fence was signed by the Court, but the fence was completed before the order was served; that the plaintiff and her predecessors in title have acquired an easement over the south 2 feet of the west 73.6 feet of lot 3, block 22 of Park'Addition and the defendant and her predecessors in title have acquired an easement over the north 4.8 feet of the west 73.6 feet of lot 4, block 22 of Park Addition to the City of Little Bock, Arkansas.” We cannot say the chancellor’s holding is against the preponderance of the evidence.
Appellee makes no contention that appellant does not have an easement over that portion of the driveway located on lot 4. It is undisputed that the driveway has been located between the two houses since prior to 1919. In that year a fence on lot 3, north of the driveway, was considered by the owners of both lots as being on the property line. In the early part of 1920 Mr. Kilman, who then owned lot 4, removed, the fence and built the concrete driveway; A member of the family who owned lot 3', and lived thereon from 1909 until 1929, testified that the driveway was considered as part of lot 4; that her family made no claim to it; that they got permission from Mr. Kilman, the owner of lot 4, to use it. Later, witness’ husband agreed to help keep the driveway in repair for the right to use it. Another witness testified that she has known of the existence of the driveway since 1920; that the public has used it since that time in gaining access to both houses. Mrs. Wendler, the appellant, moved into the house on lot 3 in 1935; and bought the property in 1941 or 1942; and has used the driveway ever since she occupied the premises. Sometime after purchasing the property, her husband had a survey made, but it was only about the time of the filing of this suit in 1951 that she attempted to have a fence constructed on the property line.
In the case of Bond v. Stanton, 182 Ark. 289, 31 S. W. 2d 409, Chief Justice Harp said: ‘1 The doctrine that the owner of one lot may acquire an easement over the lot of another by the open, notorious, and adverse use thereof under a claim or right for a period of seven years is well settled in this State. Such adverse use is sufficient to vest the claimant with an easement therein.” See also St. Louis Southwestern Ry. Co. v. Elmore, 185 Ark. 364, 47 S. W. 2d 39.
On cross-appeal appellee contends the easement the owner of lot 4 has over lot 3 should be 76.6 feet in length, instead of 73.6 feet, and that the decree should be modified to that extent. We think the evidence sustains appellee’s contention. The undisputed evidence is that since 1919 those living* on lot 4 have used the driveway to reach the rear thereof, where a garage is located. In order for an automobile to pass between the house on lot 4, and any fence that the owner of lot 3 may construct, the driveway must extend a few feet further east than the point where the concrete ends. In other words, automobiles traveling to the rear portion of lot 4 must have been using about three feet of lot 3 contiguous to the concrete strip. In addition to the fact that a car must use the three-foot strip to get to the garage on lot 4, there is evidence that there are clearly marked tracks which indicate the use of such strip as part of the driveway.
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Ed. F. McFaddin, Justice.
On March 19,1952, Curtis Willis was indicted for the crime of rape alleged to have been committed on his daughter, Billie Jean Willis. He was tried on that indictment and convicted of carnal abuse and brings this appeal presenting the points now to be discussed.
I. Sufficiency of the Evidence. Billie Jean Willis testified that she was 15 years of age on January 4,1952; that her father, the appellant, raped her on September 3, 1946; and that he continued to compel her to have sexual intercourse with him at frequent intervals thereafter, until about two weeks before the returning of the indictment. The prosecuting witness testified to the many acts of carnal abuse within the statutory period, and her testimony made a jury case independent of corroboration, even though she was in fact corroborated. Hodges v. State, 210 Ark. 672, 197 S. W. 2d 52; Tugg v. State, 206 Ark. 161, 174 S. W. 2d 374; Waterman v. State, 202 Ark. 934, 154 S. W. 2d 813. One indicted for rape can be convicted for carnal abuse. Warford & Clift v. State, 214 Ark. 423, 216 S. W. 2d 781, 8 A. L. R. 2d 996. We conclude that the evidence was sufficient to take the case to the jury and to support the jury’s verdict.
II. Bill of Particulars. The indictment charged the rape to have been committed on September 3, 1946. The appellant moved the trial court to require the State to furnish him — in advance of the impaneling of the jury— with information as to any other and subsequent dates in which the State would claim there had been sexual intercourse by the appellant with his daughter. The appellant assigns as error the refusal by the trial court to require the State to furnish such information.
Since rape is a capital offense (§ 41-3403 Ark. Stats.), there could be no valid claim of limitations by appellant against a rape committed 6 years before the indictment (See § 43-1601 Ark. Stats.). Thus, insofar as the offense of rape was concerned, § 43-1015 Ark. Stats, applies and that section says:
“The statement, in the indictment, as to the time at which the offense was committed, is not material, further than as a statement that it was committed before the time of finding the indictment, except where the time is a material ingredient in the offense.”
When the accused presented his motion for detailed information, which amounted to a motion for a bill of particulars, he was being tried on an indictment which charged rape and it was immaterial whether there might be proof of any sexual intercourse after the one charged in' the indictment, which was September 3, 1946. The statute on bill of particulars is § 43-804 Ark. Stats., and says:
“The bill of particulars now required by law in criminal cases shall state the act relied upon by the State in sufficient' details, as formerly required by an indictment; that is, with sufficient certainty to apprise the defendant of the specific crime with which he is charged, in order to enable him to prepare his defense. . . .”
The indictment in this case definitely charged the appellant with rape, and made unnecessary any bill of particulars as to the rape. Here is the wording of the indictment:
“The Grand Jury of Saline County, in the name and by the authority of the State of Arkansas, accuse Curtis Willis of the crime of Eape committed as follows, to-wit: The said Curtis Willis in the County and State aforesaid, on the 3rd day of September, A. D., 1946, did unlawfully in and upon one Billie Jean Willis, a female person under the age of sixteen years, forcibly, violently and feloniously rape and assault her, the said Billie Jean Willis, then and there violently, forcibly and against her will and consent, did ravish and carnally know, and against the peace and dignity of the State of Arkansas.”
If the indictment had only charged carnal abuse, a date within the statutory period might have been material, because, by § 43-1602, the limitation period for a felony less than capital is three years. Even in this rape case, it would not have been improper for the Court to have required the Prosecuting Attorney to inform the defendant of the dates of the acts of intercourse within the three-year period, but in the state of the record at the time the motion was made and acted on by the trial court, we see no error in the ruling of the trial court in refusing the motion for bill of particulars.
In the Court’s Instruction No. 4 to the jury, the Court said:
“The alleged offense of carnal abuse must have occurred within three years before the filing of the indictment on March 19, 1952.”
Thus the defendant’s rights were protected. In Venable v. State, 177 Ark. 91, 5 S. W. 2d 716, we held that a state ment as to the time of the commission of a carnal abuse is not material except as a statement that it was committed before the time of the finding of the' indictment; and in Oakes v. State, 135 Ark. 221, 205 S. W. 305, the defendant was charged with carnal abuse committed “on the.........day of............, 191......’ ’ and we sustained that indictment, saying:
“In a criminal prosecution, the State must prove that the offense was committed within the period of the statute bar, . . . ”
The defendant knew that under the indictment, he could be convicted of carnal abuse and also knew that any act of sexual intercourse by him with the prosecuting witness, within three years next before the finding of the indictment, would be within the statutory period; set the defendant could not have been prejudiced by the Court’s ruling. See Bender v. State, 202 Ark. 606, 151 S. W. 2d 668. We find no merit in the appellant’s assignment of error regarding the ruling on the bill of particulars.
III. Rulings in Regard■ to the Evidence'.
(a) The prosecuting witness told of the attack on her on September 3, 1946, and also testified as to many sribsequent acts of sexual intercourse by her father on her at frequent intervals up to a few weeks before the returning of the indictment. Some of these acts took place outside of Saline County. The Court told the jury that the girl would be allowed to continue her chronological account of the trips and the acts outside of Saline County in order to go along with the narrative as to the acts in Saline County, but the Court told the jury that it would not consider any of such acts — committed outside of Saline County — in arriving at its verdict. The appellant assigns error in the ruling of the Court because it allowed testimony as to acts of intercourse outside of Saline County. Due to the age of the prosecuting witness, we cannot say that the trial court erred in allowing her to make a chronological statement under the cautionary instruction given to the jury by the Court. The trial court could observe her demeanor on the wit ness stand. We cannot say that there was any error in the light of the cautionary instruction which went along with the testimony.
(b) The defense sought to show by Mrs. Barnes that the prosecuting witness, Billie Jean Willis, had at one time driven an automobile of Mrs. Barnes without the permission of the owner. The purpose of this evidence was explained by the defense in this language:
“The evidence is not meant for the purpose of charging or claiming that the said witness committed a felony, but it is offered solely for the purpose of showing the character and the disposition of the said prosecuting witness, the said Billie Jean Willis, that she was a reckless girl and would resort to anything to get out and get with a crowd and furnish the car to carry them in. ’ ’
The trial court refused the proffered evidence and the appellant claims error. The trial court was correct. A witness cannot be impeached by evidence from other witnesses as to specific acts of bad conduct. Kirkpatrick v. State, 177 Ark. 1124, 9 S. W. 2d 574. Even in a carnal abuse case, evidence of specific acts of immorality of the prosecuting witness is not admissible as affecting her creditability. Davis v. State, 150 Ark. 500, 234 S. W. 482. In .a carnal abuse case, the defense can cross-examine the prosecuting witness as to her conduct, but is bound by her answers. Rowe v. State, 155 Ark. 419, 244 S. W. 463.
IY. Other Assignments. Several assignments in defendant’s motion for new trial relate to the ruling of the Court in the giving and refusing of instructions. Most of these instructions related to the rape charge; and any complaint as to them was rendered moot by the jury’s verdict of not guilty of the rape charge. We have carefully checked all of the 20 assignments in the motion for new trial, and find no reversible error in the record.
Affirmed.
See § 41-3401 Ark. Stats.
See § 41-3406 Ark. Stats. | [
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Ward, Justice.
The County Equalization Board of Prairie County raised the assessments on property located in the City of DeValls Bluff belonging to appellants, and fixed the amounts as set out below:
Assd. Value Description (20% of value) Value
Glenn Hill— Lot 10 Block 11, DeValls Bluff, Ark................................................. $2,000 $10,000
Boy Hill-Lot 4, Block 43, DeValls Bluff, Ark................................................. 2,000 10,000
C. E. McDuff— Lot 9, Block 11, DeValls Bluff, Ark................................................. 2,000 10,000
J. B. Bhodes— Lot 7, Block 8, DeValls Bluff, Ark................................................. 2,200 11,000
Gillespie— Lots 7, 8, 9, and 10, Block A, Maxwell’s Add., DeValls Bluff, Ark................................................. 1,400 7,000
The County Court and the Circuit Coúrt, on successive appeals, refused to lower the assessments and so appellants have appealed to this Court.
Appellants make no contention that 20% is not the appropriate basis for assessment, and the only argument advanced here for a reversal is that their property was valued too high, and that the evidence does not support the judgment of the Circuit Court.
At one place appellants state that the issue before this Court is whether the Equalization Board has or has not placed an excessive value on their property, and again they ask us to reduce their assessments to conform to the evidence. If by this appellants mean we are to be guided by a preponderance of the evidence rule, they are in error. On appeal in instances like this it is onr duty to affirm the judgment of the trial court if it is supported by substantial evidence. Doniphan Lumber Company v. Cleburne County, 138 Ark. 449, 212 S. W. 308, was an appeal from the Circuit Court involving assessments and this Court there announced the rule applicable here as follows:
“Unless the undisputed facts in the case establish that the findings and judgment of the circuit court are erroneous, this court cannot reverse on appeal. The case falls within the general rule that the findings of the trial court will not be disturbed by this court on appeal where the findings are sustained by sufficient legal evidence.” The above rule has been followed without exception in many decisions of this Court though not always in the same phraseology. In Hayward v. Rowland, 184 Ark. 766, 43 S. W. 2d 737, the Court said:
“. . . it is only necessary in the instant case for us to examine the record sufficiently to ascertain whether the findings and judgment of the trial court are sustained by sufficient legal evidence. ’ ’
Applying the rule announced above, we have concluded that the judgment of the trial court must be affirmed.
Appellants rely heavily on the testimony of Warren Baldwin, an experienced real estate man of Little Rock, who analyzed the type of construction and location of each building and gave it as his opinion that in each instance, which he described in detail, the property had a value of approximately one-half of that fixed by the Equalization Board. We deem it unnecessary to set out Mr. Baldwin’s testimony in detail because we recognize his qualifications and the force of his testimony.
On the other hand, in view of our announced decision, we set out in more detail the testimony introduced by appellee to show that the judgment is supported by substantial evidence.
O. C. Hall, a member of the Equalization Board for fifteen years, says he made a detailed inspection of the property belonging to Glenn Hill, Roy Hill and Carl McDuff, and each of said properties is worth $10,000 and he would pay that amount for them if he needed them, and that he considered the J. R. Rhodes property was not valued too high. J. H. Waggs, Chairman of the Board for twenty years, stated that in his opinion the Glenn Hill and Roy Hill properties were each worth $10,000, the McDuff property worth $11,000 and the Rhodes property worth $12,000, and that he had gone over the properties and discussed their values. J. H. Calhoun, a banker at DeValls Bluff, ivas familiar with loan values there and valued the Glenn Hill, Roy Hill and McDuff properties at $10,000 each. To the same effect ivas the testimony of Jim Crowley, who was in the business of making appraisements for loans in that vicinity, of C. R. Hartlieb, who was a banker at Hazen and had been in a bank at DeValls Bluff from 1941 to 1945, and of Mrs. E. B. Robinson, who has lived in DeVails Bluff all her life. John W. Bishop, a general contractor, testified he was familiar with the type of construction of the properties mentioned above and that in his opinion both the replacement and present values were greater than the values fixed by the Board.
The testimony regarding the Gillespie property, valued by the Board at $7,000, was not as vuhiminous or impressive, perhaps, as the testimony regarding the other properties, but we think it is ample to support the judgment of the trial court. C. C. Hall, J. H. Waggs and Mrs. E, B. Robinson all testified that they were familiar with this property and that it had a value of $7,000.
The judgment of the lower court is affirmed.
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Battle, J.
P. A. Eaton alleged in his complaint that he Avas the owner of five thousand cross-ties, of the value of $750; that they Avere in the possession of H. Gr. Langley; that he was 'entitled to the immediate possession of the same; and asked for the possession thereof, or, if that could not be obtained, their value. After" filing Avith the clerk of the circuit court the affidavit required in such cases, he sued out an order for the delivery of the cross-ties to himself; also a summons for Langley. He caused the summons to be served upon the defendant,, but directed the sheriff to return the order of delivery without service, Avhich aaus done.
The defendant answered the complaint by denying the allegations therein and alleging that he was the owner of the ties.
The issues in the action were tried by the judge and jury. Epon the evidence adduced, the jury found a special verdict, and the judge filed his conclusions of fact, both of which are stated by the judge as follows:
“From the evidence in this case the court finds as follows: (1) That the ties in controversy were cut by the defendant from the east half of section thirty-five, township seventeen north, range three east. (2) That the plaintiff was the owner of said land and the timber fthereon at the time the ties in controversy were cut. (3) That said ties were cut without authority from the plaintiff or any one representing him, and that in so cutting the said timber the defendant was a trespasser. (4) That the defendant in cutting said timber was acting under a Iona fide belief that he was the owner of the said timber, and had a right to cut it, and that he was an innocent and not a wilful trespasser therein.
“And from the answers of the jury to the special interrogatories the court finds: (5) That, at the time this action was begun, the defendant had 3,500 cross-ties, which he had made from said land while the plaintiff was the owner thereof, under the foregoing circumstances. (6) That said ties, at the beginning of this action, were of the value of 12¿ cents eaelN (7) That the timber from which the same were made, while standing, was of the value of 2 cents per tie.”"''
Upon these findings of facts the court rendered a judgment as follows: “It is therefore ordered, considered and adjudged by the court that the plaintiff have and recover of and from the defendant the sum of seventy dollars and all costs of this cause, and that, further, in case the sums of money above mentioned, together with the said costs, are not paid within ten days from this date, the plaintiff shall have and recover of the defendant the possession of the 3,500 cross-ties situated on the east half of section thirty-five in township seventeen north, range three east, and for which writ of delivery in this case may issue.”
After filing a motion for a new tidal, which was overruled, and a bill of exceptions, the plaintiff appealed.
In an attempt to sustain the judgment of the circuit court, appellee insists that this is not an action of replevin or detinue, “but is in the nature of an action of trover or trespass under the common law.” But the name of it is immaterial. The code abolished all forms of action. Let its name be what it may, it is unquestionably an action to recover tbe possession of specific personal property. In such actions the statute provides that the “judgment for the plaintiff may be for the delivery of the property, or for the value thereof, in case a delivery cannot be had, and damages for the detention.” Sand. & H. Dig., § 6398. The right to this judgment is in no wise affected by the issue or failure to issue an order of delivery, which is only necessary to enable the plaintiff (upon the execution of the proper bond) to obtain the immediate possession of the property at the beginning or during the progress of the suit, or force the defendant to give bond for its retention, and for no other purpose. Sand. & H. Dig., § 6383, et seq.
The cross-ties in controversy are the product of the timber of appellant and the labor of the appellee. The latter, honestly believing,that he was the owner of the timber, converted it into the cross-ties. The material used in making each tie, as it was in the tree, was worth two cents-,•'and, as it is, is worth twelve and a half cents. Under these circumstances, is appellant the owner of the ties, and entitled to their possession?-'
As a general rule, an owner cannot be deprived of his property without his consent or operation of law. “If unauthorized persons have bestowed expense or labor upon it, that fact cannot constitute a bar to his reclaiming it, so long as identification is not impracticable. But there must be a limit to this right.” Mr. Justice Blackstone lays down the rule very broadly that if a thing is changed into a different species, as by making wine out of another's grapes, oil from his olives, or bread from his wheat, the product belongs to the new operator, who is only to make satisfaction to the former proprietor for the materials converted. 2 Bl. Com. 404. Many authorities have followed this rule, while others have held that, in the case of a wilful appropriation, no extent of conversion can give to the wilful trespasser a title to the px’operty, so long as the original ma-' terials can be tx'aced in the impx’oved article. Weatherbee v. Green, 22 Mich. 311.
In McKinnis v. Railway, 44 Ark. 210, and Stotts v. Brookfield, 55 Ark. 307, it was held that the owner of timber which had been taken and converted by a wilful trespasser into cross-ties may recover the ties or their value in an action of replevin against tbe trespasser. In tbe latter case tbe court said: “While it is difficult to draw from the authorities a rule by which we may detennine with certainty what change in the original property converted will destroy its identity, so that replevin will not lie for its recovery, it is settled that the conversion of timber into cross-ties is not such a change, whether the change has been wrought by a wilful or an innocent wrongdoer.” But there was no occasion for saying what was said as to innocent wrongdoers. In that case the defendant entered upon the land of plaintiff, and, without his authority or consent, knowing' at the time his claim of ownership of the same, cut timber therefrom, and converted it into the cross-ties in controversy. Upon that fact the judgment of the court was based. In neither of these cases- was any rule laid down by which the identity of the property can be ascertained.
The authorities generally agree in holding that when a party has taken the property of another in good faith, and, in reliance upon a supposed right, without intention to commit wrong, converted it into another form, and increased its value by the expenditure of money and labor, the owner is precluded from following and reclaiming the property in its new form, if the transformation _ it has undergone has converted it into an article substantially different. But they have not agreed ujzon any rule by which it can in all cases be ascertained whether this transíoi’mationjzas or. has not taken place. “If grain .bo taken and made into malt, or money taken and made into a cup, or timber taken and made into a house, it is held in the old English law that the property is so altered as to change the title. * * * But cloth made into garments, leather into shoes, trees hewn or sawed into timber, and iron made into bars, it is said, may be reclaimed by their owner in their new and original shape. * * * Some of the cases place the right of the former owner to take the thing in its altered condition upon the question whether its identity could be made out by the senses.” Wetherbee v. Green, 22 Mich. 318, 319. But the supreme court of Michigan (Mr. Justice Cooley delivering the opinion of the court) said that the test of the senses is unsatisfactory, and that “no test which satisfies the reason of the law can be applied in the adjustment of questions of title to chattels by accession, unless it keeps in view the circumstances of relative values.” It said: “It may often happen that no difficulty will be experienced in determining the identity of a piece of timber which has been taken and built into a house; but no one disputes that the right of the original owner is gone in such a case. A particular piece of wood might perhaps be traced without trouble into a church organ, or other equally valuable article; but no one would defend a rule of law which, because the identity could be determined by the senses, would permit the owner of the wood to appropriate a musical instrument a hundred or a thousand times the value of his original materials, when the party who, under like circumstance, has doubled the value of another man’s corn by converting it into malt, is permitted to retain it, and held liable for the original value only. Such distinctions in the law would be without reason, and could not be tolerated. When the right to the improved articles is the point in issue, the question how much the property or labor of each has contributed to make it what it isjinust always be one of first importance. The owner of a beam built into the house of another loses his property in it, because the beam is insignificant in value or importance as compared to that to which it has become attached, and the musical instrument belongs to the maker rather than to the men whose timber was used in making it, not because the timber cannot be identified, but because, in bringing it to its present condition, the value of the labor has swallowed up and rendered insignificant the value of the original materials. The labor, in the case of the musical instrument, is just as much the principal thing as the house is in the other case instanced; the timber appropriated is in each case comparatively unimportant.” Wetherbee v. Green, supra, 319, 320.
Wetherbee v. Green, 22 Mich. 311, was an action of replevin by the appellee against the appellant to recover a quantity of hoops made out of the timber of the former by the latter in good faith, under what he supposed to be good authority. The timber in the tree was worth only $25, and the hoops made out of it were worth $700. The court held that the owner could not recover the hoops, but was entitled to the damages sustained by reason of the unintentional trespass. This decision was based upon the reason that the hoops were made in good faith, and upon the fact that the value of the timber, as compared to the value of the labor expended in making them, was insignificant.
In Isle Royale Mining Co. v. Hertin, 37 Mich. 332, the parties were owner's of adjoining tracts of timbered land. In the winter of 1873-4 the Hertins, in consequence of a mistake respecting the boundaries, went upon the lands of the mining company, and cut a quantity of cord-wood, which they hauled and piled on the bank of Portage Lake. The next spring the mining company took possession of the wood, and converted it to their own purposes. The wood on the bank of the lake was worth $2.874 per cord, and the value of the labor expended by the Hertins in cutting and putting it there was $1.874 per cord, nearly double the value of the timber. After the mining company had taken possession of the wood, the Hertins brought an action against the mining company for the value of their labor expended in converting the timber into cord-wood and placing it upon the bank of the lake. .The court held that they were not entitled to recover. Chief Justice Cooley, the same judge who delivered the opinion in Wetherbee v. Green, supra, in delivering the opinion of the court, said: “It is on all hands conceded that where the appropriation of the property of another was accidental or through mistake of fact, and labor has in good faith been expended upon it, which destroys its identity, or converts it into something substantially different, and the value of the original article is insignificant as compared with the new product, the title to the property in its converted form must be held to pass to the person by whose labor in good faith the change has been wrought, the original owner being permitted, as his remedy, to recover the valué of the article as it was before the conversion. This is a thoroughly equitable dpctrine, and its aim is so to adjust the rights of the parties as to save both, if possible, or as nearly as possible, from loss. But where the - identity of the original article is susceptible of being traced, the idea of a change in the property is never admitted, unless the value of that which has been expended upon it is sufficiently great, as compared with the original value, to render the injustice of per' mitting its appropriation by the original owners so gross and palpable as to be apparent at the first blush. Perhaps no ease has gone further than Wetherbee v. Green, 22 Mich. 311, in which it was held that one who, by unintentional trespass, had taken from the land of another young trees of the value of $25, and converted them into hoops worth $700, had thereby made them his own, though the identity of trees and hoops was perfectly capable of being traced and established. But there is no such disparity of value between the standing tree and the cord-wood in this ease as was found to exist between the trees and the hoops in Wetherbee v. Green. The trees are not only susceptible of being traced and identified in the wood, but the difference in value between the two is not so great but that it is conceivable the owner may have preferred the young trees standing to the wood cut. The cord-wood has a higher market value, but the owner may have chosen not to cut it, expecting to make some other use of the trees than for fuel, or anticipating a considerable rise in value if they were allowed to grow. It cannot be assumed, as a rule, that a man prefers his trees cut into cord-wood rather .than left standing, and if his right to leave them uncut is interfered with, even by mistake, it is manifestly just that the consequences should fall upon the person committing the mistake, and not upon him. Nothing could more encourage carelessness than the acceptance of the principle that one who by mistake performs labor upon the property of another should lose nothing by his error, but should have a claim upon the owner for remuneration.'. Why should one be vigilant and careful of the rights of others if such were the law! Whether mistaken or not is all the same to him, for in either case he has employment, and receives his remuneration; while the inconveniences, if any, are left to rest with the ihnocent owner. Such a doctrine offers a premium to heedlessness and blunders, and a temptation by false evidence to give an intentional trespass the appearance of an innocent mistake.” See Grant v. Smith, 26 Mich. 201; Gates v. Rifle Boom Co., 70 id. 309.
Judge Cooley, in his work on Torts, lays down the rule upon this subject in the same words it is stated in Isle Royale Mining Co. v. Hertin, supra. Cooley, Torts, (2 Ed.) pp. 59, 60.
Professor Schouler, in his work on Personal property, sums up the modern doctrine upon this subject as follows: “Where the trespass was not wilful, but accidental, as through some mistake of fact, and the materials taken'can still be. identified, and the labor and materials of the trespasser are not. shown to have gone further than the appropriated materials towards producing the present valuable chattel, the owner of the materials is still entitled to the chattel. But where no element of wilfulness or intentional wrong whatever appears on the part .of him who applied another’s materials, and the identity of those’4 materials has finally disappeared in the new product, or where it can be shown that his own labor and materials contributed essentially much more to the value of the present chattel than those materials which he took without intending a wrong, he shall keep the chattel as his own; making, however, due compensation to the owner of the materials for what he took.” 2 Sehouler’s Personal Property (2d. Ed.), § 37.
On account of the conflict of opinion upon this subject, and the fact that this court is free from the restraints of precedents in respect thereto, we are at liberty to select the rule which is sustained by authority, and is in our opinion the wisest and most just. The rule stated by Judge Cooley comes nearer approaching this standard. The increased value of the original materials furnishes no guide by which the merit of the laborer who has given them their new form can be determined. The increased value is the joint result of the original material and the work and materials expended by the laborer in-ereating the new form. They may be equal, or the former may exceed the latter in value; and the increased value may exceed the aggregate value of the original materials and that expended upon them. Independent causes may contribute to the increased value. For instance, transportation to a market where the original material is scarce and in great demand may greatly increase its market value, or may diminish such value by the transfer to the place where the supply is greater and the demand is less than it is in the market from which it was shipped. So it cannot be said that the transportation added the increased value. Other causes — supply and demand — affect the value. So may labor change the original material into a new form, and increase the demand for it in that shape, and thereby enhance its value. X'VVhy, then, should the person who has made the expenditure be entitled to the difference between the aggregate value of his expenditure and the original material and the value of the article in its new form? He can lose no more than' the value of his labor or other expenditure. His right to the property in its new form should not, therefore, in any case be dependent upon its increased value, but upon the relative values of the original materials and his expenditures upon the same; and this should be considered only when the identity of the original article is susceptible of being traced; and then only when he has acted in good faith and converted it into something substantially different, and the value of the original article, as compared with the value of that expended upon it, is so insignificant as “to render the injustice of permitting its appropriation by the original owner so gross and palpable as to be apparent at the first blush.” In addition to the relative values the injury inflicted upon the owner by the trespasser, and the injustice of taking from the former his property, against his will, at its market value, should be considered and compared with the hardship the latter may suffer by the loss of his labor and other expenditures, in determining whether this appropriation would be such gross and palpable injustice as to give the innocent trespasser the right to the property in its converted form, as in Isle Royale Mining Co. v. Hertin, 37 Mich. 332. In this manner the rights of parties would be more nearly protected, and justice at the same time administered.
The value of the cross-ties in controversy was twelve and a half cents a tie. The value of each in the tree was two cents. The value of the labor expended upon them is not shown, but assuming it to be the increased value of ten and a half cents a tie, the difference between it and the value of the original material is not so great as to make the value of the latter, as compared with that of the former, insignificant, and to make the appropriation of the cross-ties by the original owner to his own use, without compensation, appear, under the circumstances, gross injustice at the first blush. The disparity is not so great as it was in Wetherbee v. Green, supra, in which trees of the value of $25 were cut and taken by one from the land of another and converted into hoops of the value of $700, which was twenty-eight times the value of the trees, while the cross- ties in this case were about six times; and yet the supreme court of Michigan, in Isle Royale Mining Co. v. Hertin, supra, said that “perhaps no ease has gone further than Wetherbee v. Green.”
In considering the justice of permitting the appellant to appropriate the cross-ties to his own use, the invasion of his rights and the injury done to him by appellee should not be overlooked. The trees belonged to him. They were standing upon his land, and he had the right to hold them as they were. No one had the right to take them from him, convert them into ties, and force him to accept their value at the time of the conversion. He may have preferred to have them to stand; and, if left standing for a few years, they might yield him great profit, and the enhancement of their value by the labor of appellee might be a poor compensation for the wrong done. But whether he wished to sell or not, it would be gross injustice to-permit appellee to force him to sell. He is entitled to the protection of the laws. Deny to him the right to the cross-ties, and force him to accept the value of his timber when appropriated by a trespasser, as it was at the time of the conversion, and he has no adequate protection, The injury inflicted by the trespasser would be borne in part by the innocent owner, and the guilty would escape. “Such a doctrine,” as said by Chief Justice Cooley, “offers a premium to heedlessness and blunders, and a temptation by false evidence to give an intentional trespass the appearance of an innocent mistake.”
\ Assuming the trees to be the property of appellant, and taking into consideration the great wrong committed by appellee in cutting them, the deprivation to the appellant of the right to use the same as it might please him, the probable loss occasioned thereby, the fact that the identification of the original material was unaffected by the labor expended, the encouragement that would be afforded to trespassers by allowing them to enjoy the fruits of their labor upon a mere showing of mistake, the protection a contrary policy would afford to the owner of standing trees against heedlessness, carelessness, pretended mistakes, and trespasses, and the importance of pursuing such course to secure such protection, — and comparing the injury inflicted upon the appellant by the .appellee, and the injustice of taking from the former his property against his will, with the hardship the latter may suffer by the loss of his labor, we think it would be lawful and right to allow appellant to recover the cross-ties, ánd to impose upon the appellee the the consequences of his own carelessness.
^ But appellant has not obtained possession of the cross-ties. In the event he cannot do so, he is entitled to the value of the property he has lost. How is this value to be estimated? This question is not beset with the difficulties which attend the right of recaption. When the appellant sued for the possession of the cross-ties, he was entitled to their possession, unless he had lost his property by the wrongful act of another. If entitled to retake it in its new form, it must be taken as he found it, though enhanced in value by the labor of appellee. The ties cannot be restored to their original form. The appellee cannot force the appellant, to become a debtor to him for the value of his labor, nor demand compensation for his voluntary additions to the value of the trees converted into ties, without the assent of the appellant. He cannot impose any conditions upon the right to retake them. The question, therefore, being whether the appellee shall lose his labor, or the appellant lose the right to take his property, the law decides in favor of the latter. But, in determining the compensation the appellant shall receive as the value of his property which has been wrongfully converted, the difficulty does not arise. The value of the property of the owner, which has been converted, can be ascertained and fixed without including therein the labor expended upon it. Hence the law protects the unintentional trespasser in such cases by limiting the right of the owner to recover. Peters B. & L. Co. v Lesh, 119 Ind. 98; Heard v. James, 49 Miss. 236; Herdic v. Young, 55 Pa. St. 176; Single v. Schneider, 30 Wis. 570; 2 Sedgwick, Damages (8 Ed.), § 534; Isle Royale Mining Company v. Hertin, 26 Am. Rep. pp. 525, 530. As to the extent of this limitation, the authorities are not agreed. But we think that, inasmuch as this is an exception to the general rule, made for the purpose of protecting the unintentional trespasser, it should be allowed to prevail only to the extent it is necessary to give protection, and that the owner, in actions for the possession of personal property in the new form into which has been converted inadvertently, under & Iona fide but mistaken belief of right, “in case a delivery cannot be had,” is entitled to recover the value of the property in its new form, less the labor and material expended in transforming it, provided the expenditures do not exceed the increase in value which was added to the transformation, in which event he should recover the value of the property in its new form, less the increase. Weymouth v. Chicago & Western Railway Co., 17 Wis. 550. Some courts hold that the owner, in such eases, should recover the value of his property in its new form, less the expense incurred in converting it into such form and increasing its value. Goller v. Fett, 30 Cal. 482; Naye v. Yappen, 23 Cal. 306; Herdic v. Young, 55 Pa. St. 176. But we do not think this is a correct rule in all cases, for the expense may in some eases exceed the increase in value, and in that event the rule would require the owner to pay for something that he never received.
According to this opinion, two errors appear in the record in this action. One is in the form of the judgment. If the appellant was the owner of the property in controversy, he was entitled to a judgment for its possession, and for its value, according to the rule before stated, “in case a delivery can not be had.” Sand. & H. Dig., § 6398. On the contrary, the judgment rendered is for the value of the property determined by the court, and then for its possession in the event the value is not paid. The other error is the failure to fix the value according to the rule we have stated.
For these errors the judgment of the circuit court is reversed, and the cause is remanded for a new trial. | [
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Robinson, Justice.
J. Frank Twist and C. C. Twist were partners in a large farming operation. They owned about 17,000 acres of land, of which approximately 10,000 acres were under cultivation. In 1938, when C. C. Twist died and a receiver was appointed to take charge of the property, the farm’s indebtedness amounted to more than $600,000. Later, in 1939, J. Frank Twist, the surviving partner, and Ira F. Twist, son of the deceased partner, were appointed trustees. In 1942 J. Frank Twist died, leaving his estate to his widow, who was appointed to serve with Ira Twist as co-trustee. They were so successful in the operation of the business that in 1946 a great portion of all the partnership debts had been paid. They then leased between 2,000 and 3,000 acres to Bert Dickey and approximately 8,800 acres to Brawley and Spicer, who did business as St. Francis Planting Company. Included in the latter lease were 100 acres on which was situated the headquarters, consisting of a gin, store, dwelling houses, etc. These leases were for a period of five years, the last year covered by the lease being 1951.
In 1947 the two families, that is, the families of J. Frank Twist and C. C. Twist, agreed on a division of the property, the C. C. Twist family to get 57% per cent of the land, and the J. Frank Twist family to get 42% per cent. It was further agreed that the 100 acres, on which the headquarters was located, would not be divided at that time, and each family would refinance a loan on the part of the property received, so there would be no indebtedness against the headquarters property, which consisted of the 100 acres mentioned above. Deeds were executed accordingly and approved by the court. The partition agreement was in writing and provided, inter alia, as follows:
“It is further agreed by and between the parties hereto that the Trusteeship which now exists under the jurisdiction of the Chancery Court of. Cross County, Arkansas, and under which Mrs. J. Frank Twist and Ira F. Twist are Trustees, shall remain in force as long as necessary but not longer than December 31st, 1951, the purpose of continuing such. Trusteeship in existence being to perforin agreements provided for herein, collect rents, pay taxes and to finish all obligations that said Trusteeship entered into under now existing rent contracts; provided, however, that should the Brawley-Spicer lease fall through or be terminated or breached, then the said Trusteeship shall be terminated as well as all of the obligations thereunder, and the interested owners of their respective properties under the division herein provided for will accept full separate responsibility for the proper performance of the other contracts as applied in their particular lands covered in the other Trusteeship contracts.”
In 1950 Brawley and Spicer formed a partnership with Dickey, and they continued doing business as the St. Francis Planting Company. They knew of the division of the Twist lands and that their lease, which expired in 1951, would not be renewed. In cultivating the Twist lands, they used their own farming equipment which was valued in excess of $100,000. They attempted to enter into an agreement with John Twist, of the J. Frank Twist family, whereby his family would join with the St. Francis Planting Company for the cultivation in 1951 of the property which had been deeded to the members of that family. This was to be done on the basis of the proposed partnership paying the same rent for the lands that the St. Francis Planting Company had agreed to pay. Also, the J. Frank Twist family was to purchase from the planting company a considerable portion of the farming equipment used in the cultivation of such lands.
Ira Twist, of the C. C. Twist family, and one of the trustees was approached with the same proposition, and whereas John Twist, the son of Mrs. J. Frank Twist, the other trustee, refused to accept it, Ira Twist and his family wanted to do so. But John Twist and his family strenuously objected to Ira Twist entering into an agreement with the St. Francis Planting Company for the cultivation in 1951 of even the lands that had been deeded to the C. C. Twist family; and John Twist threatened to sue Ira Twist, in the event that he should enter into such an arrangement. Therefore, Ira Twist, since he was one of the trustees, withdrew from any negotiations in connection with the proposition of joining with the St. Francis Planting Company. Other members of the Ira Twist family did join with the planting company in the cultivation in 1951 of those lands belonging to the C. C. Twist family. The new partnership was called the Delta Farms Company, and it paid the old partnership, the St. Francis Planting Company, $140,000 for farming equipment.
It is contended by the J. Frank Twist family that there had been a large increase in the rental value of the farm lands between the year 1946, when the property was leased to the St. Francis Planting Company, and the year 1950, when that company rented the lands to the Delta Farms Company; that Ira Twist is a member of the partnership of the Delta Farms Company, and that since he was still co-trustee for all the Twist lands, he is liable for the increased rental value. However, the chancellor did not find that Ira Twist had any connection with the Delta Farm Company, and the finding of the court in this respect is sustained by the evidence.
In June, 1951, the C. C. Twist family sold their interest in the 100 acres, on which the headquarters was located, to the J. Frank Twist family. Among other things, the deed provides: “It is understood that this deed is subject to the lease outstanding in favor of St. Francis Planting Company and its sub-lessees, and that the grantees are not entitled to possession under this deed until December 31, 1951.” The grantees were not required to pay for the land until the expiration of the lease mentioned in the deed. The 100 acres involved were under lease to the St. Francis Planting Company as part of the approximate 8,800 acres that had been leased to that partnership in 1946, on the same rental basis, as all the other land involved in the lease. But appellants claim that the 100 acres should be considered on a different basis than other lands and that, since they acquired the ownership of the property in June, 1951, they are entitled to the entire rent of the 100 acres for the year 1951. We do not agree with appellants’ contention. The J. Frank Twist family knew at the time they purchased the interest of the C. C. Twist family that the property was under lease to the St. Francis Planting Company for the year 1951; and they also knew that the interest of the C. C. Twist family was sold for the purpose of completely effectuating a division of the entire property between the two families. All the other real estate had been previously divided, with the exception of the 100 acres, which were included in the lease to the St. Francis Planting Company at a stipulated sum, along with the other acreage. When that company paid its rent for the year 1951, it necessarily paid all the rent due on the 100 acres, and the J. Frank Twist family was only entitled to its proportionate share, as held by the chancellor.
In dissolving the trust, the chancellor allowed Ira Twist $15 a month for a period of three years, a total of $540, for his services in connection with keeping the books of the trust estate. Appellants contend that under the authority of Imboden v. Hunter, 23 Ark. 622, a trustee who has an interest in the trust cannot collect a fee for administering same, where there has been no previous agreement or order providing for such fee. Regardless of the applicability of the cited case, we do not think that it was anticipated by either side that Ira Twist would be paid anything for his services in connection with the bookkeeping. He collected the rents and distributed the money in an obviously satisfactory manner. In fact, it is suggested that for the duration of the trust he collected and distributed over a million dollars, and if he is entitled to any fee at all, it would seem that it should be for an amount many times the $540 allowed; but he made no claim for any kind of a fee and did not intimate that he was entitled to one until the closing days of the trust, and it appears that his request then was somewhat of an afterthought.
Appellees contend the court erred in not assessing the entire cost of the trusteeship against appellants but took no cross appeal from the court’s decree in that re speet. We have concluded that the decree of the court should be affirmed in all respects, except the allowance of the $540 fee to Ira Twist, and that the entire cost of this appeal should be assessed against the appellants. It is so ordered. | [
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Ed. F. McFaddin, Justice.
Appellees, Johnson and wife, brought suit to quiet title to the land here involved; and the appellants (heirs of J. N. Peters) resisted the suit. From a decree quieting appellees’ title, there is this appeal.
In 1932, J. N. Peters owned the 40 acre tract herein called “the land.” E. S. Jones sought to foreclose a mortgage Peters had given him on the land; and, in order to get money to pay the Jones debt and also a debt to Howard Billing, Peters executed, acknowledged and delivered to Howard Billing an instrument in all respects a warranty deed, except that, after the description of the land, there was this language:
“It is understood and agreed that if the said J. N. Peters pays back the said Five Hundred Fifteen and 66/100 Dollars, with all taxes that become due on said land and interest at 8% from this date, within two years from this date, this deed shall become null and void; otherwise to remain in full force and effect.”
This instrument was dated August 16, 1932, and duly recorded the same day. Peters continued to live on the land until Billing sold it to Warren in 1938, at which time Billing gave Peters $200 in cash and considered the aforementioned debt of $515.66 to be cancelled. Peters then moved off the land and never made any claim to it thereafter, although he continued to live in the same community until his death in 1950.
Warren and wife purchased the land from Billing in 1938, fenced it, improved it and exercised full ownership. In 1949, Mrs. Warren, as survivor by the entirety of the Warren title, conveyed the land to Johnson and wife (the present appellees) by general warranty deed. The John-sons made extensive improvements and exercised full ownership and their title was never questioned. In 1951, when Johnson was preparing to sell the land, someone questioned the Peters- Billing instrument, and Johnson brought this suit to quiet his title against the appellants who are the heirs of J. N. Peters.
The appellants, in resisting the suit, claimed: (a) that the 1932 instrument from Peters to Billing was a mortgage, rather than a deed; (b) that Billing became mortgagee in possession; and (c) that Warren and Johnson, as grantees holding under Billing, likewise are mortgagees in possession. On these claims appellants seek to recover the land, relying on such cases as Lesser v. Reeves, 142 Ark. 320, 219 S. W. 15, and Green v. Gilbert, 169 Ark. 537, 276 S. W. 8.
Even assuming that the 1932 instrument from Peters to Billing was a mortgage, nevertheless the appellants cannot prevail in this suit: because Billing did not take the land from Peters as a mortgagee in possession; rather Billing acquired the title from Peters. When Peters surrendered possession, Billing paid him $200 in cash for the land in addition to considering as cancelled the $515.66 and interest and taxes. Tt is shown that the $200 was a fair payment for the Peters equity within the rule of Green v. Gilbert, supra. It is true that Billing received no written conveyance from Peters in 1938 when the $200 was paid and Peters delivered possession of the premises to Billing; but title to real estate can phss — as it did in this case — with possession, even in the absence of a written instrument.
In McKenzie v. Rumph, 171 Ark. 791, 286 S. W. 1022, Mrs. E. M. Neeley held a vendor’s lien on certain land which J. T. Neeley had purchased from her. When J. T. Neeley was unable to pay the balance of the purchase price, he orally agreed to surrender possession and re-convey the land in satisfaction of the balance due. He did actually surrender possession, but died without making a written conveyance. Years later it was claimed that the title of J. T. Neeley had not been extinguished. In holding that J. T. Neeley’s title rights had been extinguished, we said:
“The statute of frauds is pleaded to defeat this re-conveyance. But we think the statute was met by the actual surrender of possession under the parol agreement to reconvey. That agreement was fully consummated by the surrender of possession, and the conveyance was therefore valid. Phillips v. Jones, 79 Ark. 100, 95 S. W. 164; Bostleman v. Henkel, 152 Ark. 628, 239 S. W. 30; Freer v. Less, 159 Ark. 509, 252 S. W. 354.”
Likewise in Riley v. Atherton, 185 Ark. 425, 47 S. W. 2d 568, the mortgagor delivered the property to the mortgagee in satisfaction of the debt, and it was entirely oral. Even though we held the evidence in that case to be insufficient, nevertheless we recognized the rule of the validity of such parol transfer by using this language:
“It is not claimed that there was any written agreement between appellees and the bank by which a delivery of the property to the bank was accepted in satisfaction of the mortgage debt, and it is conceded that such an agreement could rest in parol. This court has so held with reference to chattel mortgage indebtedness. Fincher v. Bennett, 94 Ark. 165, 126 S. W. 392; Horton v. Thompson, 124 Ark. 545, 187 S. W. 627; Ribelin v. Loyd, 148 Ark. 487, 230 S. W. 556. The reason for the rule is, as stated in the case last cited, that ‘a mortgage is a mere security for a debt, and the property may be released from the mortgage by parol agreement, as well as by a written one.’ In this and in many other States a mortgage is considered security for the debt merely, and not the principal obligation. An oral agreement to satisfy therefore does not fall within the statute of frauds.”
Earlier cases likewise recognized that the mortgagor could transfer the land to the mortgagee in satisfaction of the debt by delivering possession under an agreement. To such effect is Garretson v. White, 69 Ark. 603, 65 S. W. 115. See, also, 37 Am. Jur. 412 et seq. We have frequently held that a Court of equity will decree specific performance of a verbal contract for sale of land when purchaser has entered into possession and paid the agreed consideration. See Webb v. Marlar, 83 Ark. 340, 104 S. W. 144; Kellums v. Richardson, 21 Ark. 137.
Thus we hold that Billing did not become a mortgagee in possession, but became the purchaser of Peters’ title when he paid Peters the $200 and took possession of the land in 1938; and that appellees, as grantees from the Billing title, should have their title quieted.
Another reason for holding against the appellants is because of the laches of their ancestor, J. N. Peters. He surrendered possession of the land and accepted the payment of the money from Billing, as aforesaid. Peters then continued to live in the same locality from 1939 until his death in 1950. He knew that Warren and Johnson were each occupying and improving the propertjq yet he never made any claim of any kind. He therefore was guilty of laches and was barred by estoppel. But there is no necessity to develop further the matter of laches, since the other ground as previously developed, disposes of appellants’ case.
Affirmed,
This ease is cited in an Annotation on “Oral Land Contract,” in 101 A. L. R. 1003. | [
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J. Seaborn Holt, J.
This is a suit to collect balance alleged to be due on the following note:
“$4800.00 Benton, Louisiana
February 11,1946
In installments of $40 per month beginning March 1, 1946, and on the 1st. day of each month thereafter after date I promise to pay to the order of Estell Allen Dalrymple, at Plain Dealing, Louisiana, the sum of Four Thousand Eight Hundred and No/100 — $4800—Dollars with interest at the rate of Eight per cent per annum from maturity until paid, Value received. The maker of this note hereby waives presentation for payment, demand, notice of non-payment and protest, all pleas of division or discussion and consents that time of payment may be extended without notice thereof, and in the event of non-payment at maturity, it is agreed to pay all attorney fees incurred in the collection of this note, or any portion thereof, including interest, which fees are hereby fixed at 10 per cent on the amount to be collected. The consideration for this note is the obligation of the maker to provide subsistence and support of his two minor children, Barbara Ann Dalrymple and Doroty Joan Dalrymple, and it is agreed that should both of the aforementioned die, then this note shall be considered satisfied upon the death of the second child, both children then being dead and the reason for the subsistence no longer existing. In the event both children survive it is understood and agreed that no subsistence will be paid after the younger of the two children reaches the age of eighteen years. In the event of failure to pay any of the said installments when due or the failure to pay interest when due, and in that event, each and all installments shall immediately become due and collectable at the option of the holder.
John H. Dalrymple. ’ ’
The note was executed by appellant and delivered to appellee, Estell Allen Dalrymple, on February 11, 1946, the same day on which Mrs. Dalrymple was awarded a decree of divorce from appellant, in a Louisiana court, and also “the permanent care and custody” of their two' minor children. Appellant, the maker of the note, refused to pay the January, 1951, installment and appellee, relying on the acceleration clause, elected to declare the remaining installments due and sued as indicated.
Appellant, by demurrer, denied liability primarily on the ground that the note lacked consideration and that no cause of action was alleged. He further contended “that the obligation of the husband to care for the children recited in the instrument when given its strongest interpretation becomes a mere motive for bringing about an agreement in contemplation of a divorce, rather than a consideration sufficient to create an enforceable contract between the parties”. The cause was submitted on November 14, 1951, to the trial court, on the demurrer and testimony of witnesses, by agreement of the parties, and there was a judgment for appellee for $2654.45, with 8% interest from October 30, 1951. This appeal followed.
It is conceded that the note was executed in Louisiana and therefore its validity is governed by the laws of that State.
The record reflects that in the. above divorce decree there was no mention of any property settlement, or any provision for alimony or for maintenance of the two children awarded to appellee, the Mother. We are not here concerned with a ease involving the support of a divorced wife, but the duty of a father to support and care for his minor children. The rule is well settled in Louisiana, as well as in this State, that it is the father’s duty to support his children during their minority. This duty also obtains whether the children are in the custody of the divorced wife or not.
“It is a father’s duty to support his minor children, and that duty is not affected by divorce and the assignment of the custody of children to the wife.” Wilson v. Wilson (1944), 205 La. 196, 17 So. 2d 249.
“It is the duty of the father to support his minor children whether they are in the custody of the mother or not.” Davieson v. Davieson (1939), 192 La. 44, 187 So. 49.
Is this natural obligation to support his minor children a sufficient consideration under Louisiana law for the note here in question? We hold that it is. In the Louisiana case, “In Re Athins Estate, Athins v. Commissioner of Internal Revenue, United States Circuit Court of Appeals, 5th Circuit, 30 Fed. 2d 761”, the court, in considering the question of the effect of the natural obligation of a parent to his children as being- sufficient consideration for a note or contract, said:
“Petitioner contends that the decedent, having made donations of money to his other children, incurred the natural obligation to equalize his gifts to all his children, and having endeavored to do so by giving the notes to his two sons, as found by the board, that under the law of Louisiana this natural obligation was sufficient consideration for the notes, and they were enforceable one-half against his estate as an obligation of the community.
‘Art. 1757. ... 2. A natural obligation is one which cannot be enforced by action, but which is binding on the party who makes it, in conscience and according to natural justice.
‘Art. 1759. ... 2. A natural obligation is a sufficient consideration for a new contract.
“That a natural obligation is sufficient consideration for a note is well settled by the following analogous cases.” Citing many cases.
The younger child was fourteen years of age when the present suit was filed. The note was made by appellant on the same day the divorce was granted. As to its execution appellant testified:
“Q. That is dated February 11th? (Referring to the divorce decree)
“A. Yes, sir.
“Q. Now, on that same day you executed this note that has been filed here?
“A. Yes, sir.
“Q. For what purpose was that note made; what was the consideration if any for making that note?
“A. She said she needed some assurance she would get compensation for the children and it was agreeable because I wanted to help them and she wouldn’t take my word and wanted some assurance she would get that money. ’ ’
We find nothing in the terms of the note that would make it unenforceable as between the parties. The acceleration clause was binding and enforceable in the circumstances.
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J. Seaborn Holt, J.
Appellant, Lumber Company, (plaintiff below)' brought this suit to foreclose an alleged materialman’s lien in the amount of $9,414.96 ($4,544.96 of this amount being for materials furnished and $4,870, cash furnished for labor to Auxer, the contractor), on property owned by Peter J. Heyburn and wife in Jacksonville, Arkansas.
The defendants below (appellees here), were in three groups, (1) Peter Heyburn and wife, (2) Joe Auxer (who died October 14, 1950), his wife, Jessica, and a minor son, Bennie, and (3) Victor Howard, Trustee, Adams & Howard Company, Inc., and the Community Savings Bank of Rochester. All defendants answered with general denials and presented a common defense.
A trial resulted in a decree for the defendants and a dismissal of appellant’s complaint.
In brief, the facts were to the following effect: Appellant, Long-Bell, a supplier of building materials, verbally contracted with Joe Auxer to furnish him both materials and money to pay labor in building a house which Auxer had contracted to build for the Heyburns. Materials were supplied by Long-Bell to Auxer on the Hey-burn job between April 22, 1950, and July 8, 1950, in the amount of $4,544.96, and in addition Long-Bell advanced cash to Auxer in the amount of $4,870 for his labor used on the job.
It also appears that Long-Bell, between July 20, 1949, and April 29,1950, had furnished Auxer on another construction job, known as the Elmore job, and entirely separate from the Heyburn job, materials and cash in the amount of $14,068.99, the last material being furnished on this Elmore job approximately seven days after the Heyburn job was begun.
It appears undisputed that on June 9, 1950, appellee, Heyburn, gave his check for $3,000 to Auxer on his contract with Auxer, and on the same day, Auxer gave his personal check to Long-Bell for $3,000 which Long-Bell, on its own motion applied, not on the Heyburn job, but on the Elmore job. On August 9, 1950, the Hey-burns borrowed $9,450 from Adams & Howard Co., Inc., executing a note and a deed of trust as security with Victor Howard, Trustee. The note and deed of trust were later assigned to the Community Savings Bank of Rochester. The permanent financing of this loan was handled by appellee, Adams & Howard Co., Inc., and James Rhodes, manager of this company’s Little Rock office, on August 9, 1950, disbursed the proceeds of the Heyburn loan by check for $9,450, payable to Mr. Hey- burn, his wife, and Auxer, and on the following day, August 10, 1950, the evidence shows Auxer delivered his check for $3,191.64, out of these Heyburn funds, to Long-Bell, which was credited to the Elmore job. It thus appears that a total of $6,191.64, which was more than enough to pay for all materials furnished on the Hey-burn job, was credited on the Elmore job out of money paid to Auxer by the Iieyburns.
Appellant contends: (1) “That it did not know that the money applied on the Elmore account was paid to Auxer by Heyburn, that by the exercise of reasonable diligence it could not have learned that fact, that Auxer made payment to appellant and directed application of payment to the Elmore job.” The contention is also made:’(2) “With reference to the advances made by appellant to Auxer for the payment of labor, appellees contend that under the statute appellant is not entitled to a lien therefor. Appellant contends that it is entitled to a lien on the theory that the laborers paid from the advancements had the right, if not paid, to establish liens, and that plaintiff, in discharging the obligations to the laborers, is entitled to subrogation.”
— (1) —
Our rule is Avell settled that, in circumstances such as are presented here, if Long-Bell knew, or by the exercise of reasonable diligence, or care, should have known the source of the money which Auxer paid to it, then it was obligated to credit the Heyburn job therewith. We think the preponderance of the testimony shows that Long-Bell did know that the source of the Auxer payments in question was Heyburn money.
Burton Dougan, an officer of Beach Abstract & Guaranty Co. of Little Bock, and agent for a title insurance company, testified that his company issued on August 15, 1950, Mortgagee’s Title Insurance policy in favor of Heyburn and Adams & Howard Co., Inc.; that in early October, 1950, he first heard of appellant’s lien claim on Heyburn’s home. He notified Bhodes and they, together with Auxer, went immediately and consulted Mr. Ellis, manager of Long-Bell, at Ms office. Relative to tMs meeting, Mr. Rhodes testified: “Q. "What was your purpose in contacting him? A. Mr. Auxer had told us that he had paid the Heyburn material bill in full and we went to Long-Bell . . . with the idea of talking to Mr. Ellis about the case. Q. Did Mr. Ellis at that time tell you what the status of the account was? A. He did; he told us there was a balance of a little over ninety-four hundred dollars. Q. Did you talk to him? I say did you — did you and Auxer talk to him about why the money from Dr. Heyburn was not applied on the Heyburn account? A. Yes, sir, we did. Q. What did he say about that? A. Mr. Ellis told us he knew the money came from the Heyburn job; since he was not specifically told by Mr. Auxer to apply it on the Hey-burn job he applied it on the oldest account, which was the Elmore job.”
On the same point, Mr. Dougan testified. ‘ ‘ Q. Did you discuss with him the status of Auxer’s account with Long-Bell Lumber Company? A. No, sir, we discussed with him the status of the Heyburn account. Q. That Avas Auxer’s account with Long-Bell? A. That is right, excuse me. Q. Discussed the amount of the bill that Avas owned on what he Avas contending was the Auxer job? A. That is true. Q. During the conversation with Mr. Ellis, Avas anything said with reference to the source of the money that Auxer paid Long-Bell that was applied on what is known as the Elmore account? A. Yes, sir. Q. What statement did he make you with reference to his knowledge of the source of the money? A. Mr. Ellis — I asked him the specific question if he didn’t know where that money came from and he said ‘Yes, I knew it came from this last job but we applied it on the oldest account, the oldest account that this contractor owed’.”
Mr. Ellis denied the testimony of Rhodes and Dougan.
Mr. Spotts, treasurer of Little Rock Abstract Company, (a competitor of Beach Abstract & Guaranty Company of which Dougan is an officer) in charge of the Loan Closing and Title Department of Ms company, testified that he disbursed the loan made by his company on the Elmore job, to Elmore and Auxer, but that before the proceeds of this loan were paid to them on May 12, 1950, either Auxer or Elmore furnished Mm (as was the policy of his company) a written statement from Long-Bell to the effect that all materials on the Elmore job had been paid for in full. He further testified thpf several days later Mr. Ellis called Mm on the phone and after he told Ellis of the disbursement to Auxer and Elmore, on the strength of the above statement, Ellis said the statement “was in error” and that he “did not remember” having called Mr. Spotts.
We think the testimony of these witnesses was ample to show that Long-Bell did know that Heyburn money was being improperly applied in payment of the Elmore job and was sufficient to support the trial court’s findings denying appellant’s right to a lien on the Heyburn home for materials furnished.
-(2)-
Appellant next contends that it should have a lien on the Heyburn job for money furnished Auxer for labor performed thereon. We do not agree.
On this issue, appellant frankly admits that under our present laws and numerous decisions of this court, beginning with Bank of Commerce v. Lawrence County Bank, 80 Ark. 197, 96 S. W. 749, and in many subsequent decisions, and as late as Wyatt Lumber & Supply Company, Inc. v. Hansen, 201 Ark. 534, 147 S. W. 2d 366, it would not be entitled to such lien for cash furnished a contractor for labor. However, we are urged to “reexamine the entire question and to depart from these cases, if necessary, to protect the materialman who does in fact advance its funds to pay labor on the job.” This we decline to do. The relief sought appears to direct itself to the Legislature.
Affirmed.
George Bose Smith, J., not participating. | [
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Minor W. Millwee, Justice.
On November 12,1951, appellee obtained a default judgment in the sum of $347.59 against appellant in the Court of Common Pleas for the Chickasawba District of Mississippi County. After ordering judgment for the amount stated with interest and costs, the judgment concludes, “. . . for which execution shall issue.” On November 17,1951, the court clerk issued and the sheriff levied an execution upon appellant’s personal property.
Appellant’s motion to quash the execution on the ground that it was issued prematurely under our statute (Ark. Stats., § 30-102) was denied by the common pleas court.
The order of the circuit court on appeal, also overruling the motion to quash, recites: “And the court further finds that while the execution was issued within less than ten days from the date of the judgment, and that there was no application or petition to the court for issuing such execution in less than the required ten days, and that there was no hearing, and no notice of any hearing, of any application or petition, that the provision in the judgment, ‘for which execution shall issue,’ complied with § 30-102, Arkansas Statutes Annotated. ’ ’
Section 30-102, supra, reads: “No execution shall issue on any judgment or decree, unless ordered by the court, until after the expiration of ten (10) days from the rendition thereof.” The question presented is whether the proviso of the common pleas judgment meant that an execution might be issued immediately within the ten-day period, as the trial court found, or whether it meant that execution might issue in due course after expiration of the statutory period.
In construing the statute we have held that an execution, when ordered by the circuit court, might be issued upon a judgment immediately after its rendition. Lowenstein v. Caruth, 59 Ark. 588, 28 S. W. 421. A justice of the peace is without authority to issue an execution within ten days unless the plaintiff make oath that defendant is secreting or fraudulently disposing of his property. (Ark. Stats., § 26-1005). Here we are dealing with the judgment of a court of somewhat similar jurisdiction, but the act creating the Common Pleas Court of Mississippi County provides that the procedure shall be the same as in circuit court with certain minor exceptions. Act 452 of 1917.
The ten-day period provided by the statute was apparently designed to allow a defendant time to stay the judgment or the issuance of an execution thereunder. While a close question is presented, we think a judgment should plainly show the court’s intention to deprive a defendant of the time allowed by the statute and that the judgment herein does not measure up to this test. The appellant challenged the voidable execution in a timely manner.
The judgment is accordingly reversed and the cause remanded with directions to sustain the motion to quash. | [
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Holt, J.
Appellant, J. B. Shepherd, was tried in Hempstead County and found guilty by a jury on a charge of having violated the Overdraft Statute (§§ 67-714-15-16, Ark. Stats. 1947), and his punishment fixed at a term of one year in the penitentiary. From the judgment is this appeal.
Numerous assignments of alleged errors are presented by appellant, but not all are argued. Since we have concluded that the judgment must be reversed and remanded for error of the trial court in denying appellant the right to introduce certain testimony in rebuttal hereinafter considered, we shall examine only one of the other assignments in which he strenuously challenges the sufficiency of the evidence to support the verdict.
The information charged that with felonious intent to defraud, Shepherd drew a certain $2,100 check, dated July 27, 1950, on the Citizens National Bank of Arkadelphia, which check was turned down by the Bank when presented for payment for the reason that said appellant did not have sufficient funds, credits or monies on deposit in said bank to cover payment of said check and that appellant has since neglected and refused to make said check good, notwithstanding more than ten days notice of nonpayment had been given to him.
There was evidence that appellant was operating an automobile sales business of new and used cars, wholesale and retail, on a large scale, in Arkadelphia, Clark County. He wrote a check in Arkadelphia on a bank in Clark County for $2,100, payable to the “Trading Post” in Hope, Hempstead County, in payment for a Ford automobile which he had bought (over the telephone) through Verdis Moses, agent for the “Trading Post.” The check was dated July 27, 1950, and there was evidence that it was delivered to the “Trading Post,” the seller in Hope, by appellant’s agent in the afternoon of the 27th and the following morning deposited in the First National Bank of Hope. A few days later this check was returned unpaid for insufficient funds and although appellant was notified and demand for payment made on him several times, after he had been given notice, the check was not paid within the ten days notice and has, in fact, never been paid. Appellant’s defense was that when the' check in question was issued, he had on deposit sufficient funds to cover it, that he had no intent to defraud, that “the State’s prima facie case was completely overcome,” and introduced evidence which tended to sustain his contention. The evidence presented by the State tended to contradict that of appellant.
We do not attempt to detail the testimony here. It suffices to say that there was substantial evidence introduced by the State to sustain the charge against appellant and to make a case for the jury.
WTe come now to consideration of the error indicated above.
Appellant contended that the venue was in Clark, his home county, and not in Hempstead County, where he was charged and tried. It appears undisputed that the check in question was executed in Arkadelphia, but there is conflict in the testimony as to whether it was delivered in Clark or Hempstead County. If delivered in Clark County, as appellant contended, then the venue would be in Clark, and not Hempstead.
The Court instructed the jury: “First, he (appellant) says that the check was written and delivered in Clark County, Arkansas. In that connection you are told that if you believe from the evidence in this case that said check was written and delivered in Clark County, Arkansas, you will find him not guilty.”
On this point, the record reflects that the State had subpoenaed, on its behalf, witnesses, Grady Pate, an employee of appellant in Arkadelphia, and Yerdis Moses, an employe of the “Trading Post” in Hope, and both were present at the trial. Pate was not called by the State, but the State did call Moses who, on his direct examination, testified: “Do you know who brought the check down here ? A. It was the driver of the car brought the check down. Q. Do you know his name? A. No, sir, but he is in the — back here (indicating) — heavy set guy. I don’t know what his name was. Q. He brought you that check there? A. Yes, he did.” On cross-examination, he testified that he sold the car over the telephone to appellant who was in Arkadelphia at the time and that the car “was picked up about five or six o’clock in the afternoon. Q. By his driver. A. Yes, sir. Q. Do you know who the driver was? A. No, sir. Q. You say he was a large heavy set fellow? A. Yes, sir. Q. About your size? A. Yes, or a little bit heavier. Q. Could you call his name for the jury? A. I don’t know his name. Q. Did you say it was Grady Pate? A. Grady Pate came down and he went back and the drivers went on with the car.’’ (At this point, the court, upon appellant’s request, permitted a witness to be brought from the witness room for identification). “Q. Is this the young man that got the car? Yes, sir, he is the man that picked the car up. By Mr. McMillan: Let the record show that the young man’s name is Carl Manning — your name is Carl Manning? By the witness: Yes, sir.”
We think it clear that the effect of the above testimony was that Moses claimed he received the check in question from the driver of the ear, who was identified as Carl Manning.
Following the testimony of Moses, the State, after presenting witness, J. H. James, rested.
The appellant, on his own behalf, then offered Carl Manning, who testified: “Q. Mr. Manning, did you bring the check or did you deliver the check to the Trading Post or any one connected with it that day? A. No, sir, I didn’t.” Following Manning’s testimony, A. O.-Shepherd, appellant’s brother, testified that Moses “came to Arlcadelphia and got the check” in question.
The State then, in rebuttal, recalled Moses, put him back on the stand, and he then testified for the first time that: “Did you testify this morning that the check was brought to you by the-driver? A. No, sir, it was brought to me by Grady Pate.” 'Up to this point, Pate had not been called by either party and had not testified. Appellant then called Pate and in an effort to' rebut this statement of Moses (made for the first time by him in rebuttal) that it was Pate and not Manning who actually delivered the check in Hope, asked Pate the following question: “Q. It has been testified here by Mr. Moses that a Ford car was purchased by him, — by Roland Shepherd over the telephone on the 27th day of July, 1950, and that a check was issued by Roland Shepherd and that you, in company with Carl Manning, brought the cheek down to The Trading Post; I believe they call it, here at Hope, and delivered it to Mr. Moses; tell the jury whether or not you brought that check down there ? ’ ’ Upon objection by the State, Pate was not permitted to answer the question. Had he been allowed to answer, his answer would have been: “I did not.” Proper exceptions to the court’s ruling were preserved by appellant.
In the circumstances, we hold that the Court erred in refusing to allow Pate to answer the question. Having permitted the State to, in effect, reopen its case in chief by requesting Moses to clarify or change a statement made by him in his testimony in chief, on a vital issue, it was highly prejudicial to appellant’s rights to deny him the right to rebut or contradict this very damaging testimony of Moses, the man who made the deal with appellant for the purchase of the car. While it is true that in such circumstances, the trial court must be, and is allowed discretion in admitting testimony after the State has rested, such discretion must always be exercised in such a manner as would not “prejudice the defendant through surprise or otherwise at a time when the disadvantage could not be overcome,” Anglin v. State, 215 Ark. 49, 219 S. W. 2d 421.
We think it obvious that the State was given an advantage by first admitting the rebuttal testimony of Moses and then at the same time refusing appellant the opportunity to overcome this advantage, by the rebuttal testimony of Pate, above, and that appellant’s rights have been prejudiced.
For the error indicated, the judgment is reversed and the cause remanded.
Justice McFaddin not participating. | [
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Minor W. Millwee, Justice.
This is a petition by J. H. Faulkner and L. Q. Coleman to expunge from the records of the Circuit Court of Hot Spring County a certain grand jury report critical of petitioners.
The record reflects that a special session of the Grand Jury of Hot Spring County was called September 10,1951, at the written request of four of the five-member board of the Malvern School District for the purpose of investigating school affairs. On September 11, a “Partial Report of Grand Jury” was received by the circuit court and spread upon the records. It states: “On the first day, the Grand Jury listened to statements made by fourteen witnesses. Among other facts which were brought to light as the result of the questioning of these fourteen persons are that
“The Grand Jury finds that Hershel Faulkner, a member of the Malvern School Board, has made irresponsible statements in which he charged a member of the Malvern faculty with sex perversion, and upon this accusation sought the discharge of the faculty member.
“After examining the fourteen witnesses, including Mr. Faulkner and the other members of the school board, the Grand Jury finds that the charge made by Hershel Faulkner has served only to disrupt and retard the administration of affairs of the public schools of Malvern.
“The Grand Jury further finds that accusations made by Faulkner were based on an affidavit made by a patron of the Malvern School District which was made by him as the result of information given him by Quentin Coleman, a discharged member of the Malvern faculty. This patron, who also appeared before the Grand Jury, declared that the accusations made by him in the affidavit were later found by him to be untrue in view of an investigation he made on his own initiative. The Grand Jury after completing their own comprehensive examination finds that these charges are without foundation in fact, utterly false, and were conceived by Coleman out of whole cloth and implanted by him in the mind of the patron for the sole purpose of obtaining the discharge of the faculty member. ’ ’
On September 12, a Malvern newspaper published separate statements by petitioners criticizing the publicized report and inviting the grand jury to indict them if the findings contained in the report were true. On September 13, the circuit court ordered separate citations against petitioners for contempt of court. The grand jury returned separate indictments against petitioners on September 18 for libel of the grand jury in connection with the publicized statements made by petitioners in response to the grand jury report. The contempt of court charges were ordered dismissed by the circuit court on November 19 because petitioners had been indicted for the same statements which occasioned the contempt charges in the first instance.
Petitioners filed their joint motion in circuit court to expunge the partial grand jury report from the record on November 27. On January 8, 1952, the circuit court entered an order denying the motion to expunge. The charges against petitioners for libeling the grand jury were dismissed on motion of the State over petitioners’ strenuous objections on January 16, 1952. The record is brought here by certiorari to review the action of the circuit court in denying the motion to expunge.
Our Constitution (Art. II, § 8) provides that a grand jury may proceed by presentment or indictment. The legal definition of a presentment is stated as follows in State v. Cox, 8 Ark. 436: “A presentment, properly speaking, is the notice taken by a grand jury of any offense, from their own knowledge or observation, with out any bill of indictment laid before them at the suit of the government; upon such presentment, when proper, the officer employed to prosecute, afterwards frames a bill of indictment, which is then sent to the grand jury, and they find it to be a true bill. 4 Bl. Com. 301. Bouvier’s Law Diet., Presentment.” It is clear from the record in the case at bar that the grand jury had no intention of returning an indictment against petitioners based on the matters set out in the grand jury report. Hence, the report does not constitute a true common law presentment. Proceeding by presentment as the term was understood at common law has largely fallen into disuse in recent years although many courts still apply the term to grand jury reports whether or not such reports are intended to be followed by an indictment.
Although there is no specific statutory authority for grand jury reports in this State, it has long been the custom and practice for grand juries to make written reports to the court concerning their investigations. Grand juries are clothed with broad inquisitorial powers and the power to investigate should necessarily include the right and duty to report the result of such investigations. So long as grand jury reports relate to general conditions affecting the public welfare and without reflecting specifically upon the character, or censuring the conduct, of individual citizens they serve a wholesome purpose and are frequently followed by beneficial results to the community.
Looking to the report involved in the instant case, we note that the grand jury did not merely accuse or charge petitioners with certain acts, but actually found them guilty of such misconduct as would have fully warranted their indictment for slander, which is a felony under our statutes. 'The question then arises as to the right of petitioners to expunge a grand jury report containing findings which would have warranted their indictment for slander where no such indictment is returned or intended.
Most of the reported cases bearing on the question involve the right of a grand jury to make a report criticizing public officials where the accusations are not such as to charge a criminal offense. Certain sections of our Criminal Code dealing with the duties and scope of inquiry of the grand jury are identical with those of New York where numerous cases have arisen on the question. In denying the motion to expunge the trial judge relied on the cases of In re Jones, 101 App. Div. 55, 92 N. Y. S. 275, appeal dismissed 181 N. Y. 389, 74 N. E. 226, and In re Healy, 161 Misc. 582, 293 N. Y. S. 584. In the Jones case the New York Court refused to expunge the report of a grand jury censuring public officials for improper performance of their duties although an indictment did not or could not have followed it. However, Judge Jenks, in the majority opinion, stated: “I think‘that if under the guise of a presentment, the grand jury simply accuse, thereby compelling the accused to stand mute, where the presentment would warrant indictment s'o that the accused might answer, the presentment may be expunged; but I do not think that a presentment as a report upon the exercise of inquisitorial powers must be stricken out if it incidentally points out that this or that public official is responsible for omissions or commissions, negligence or defects.”
A strong dissenting opinion was written by Judge Woodward in the Jones case announcing the rule that the code empowered the grand jury only to indict or not indict. He said: “If there has been no crime or offense, the grand jury, designed for the protection of the citizen, ,has no right to create an offense unknown to the law for the purpose of administering punishment by way of censure, for this is a ‘government of laws, not of men,’ to quote the preamble of the Constitution of Massachusetts and the language of Chief Justice Marshall in Marbury v. Madison, 1 Cranch, 163, 2 L. Ed. 60. . . . If the acts charged do not constitute a crime, then there is no indictment before the court, and the petitioners clearly have a right to be relieved of the odium of a judicial censure, where the document in which such censure is contained is a mere impertinence, without authority of law.”
The lower courts of New York have consistently refused to follow the majority in the Jones case and in each instance have granted the requested motion to expunge. See, In re Osborne, 68 Misc. 597, 125 N. Y. S. 313; Re Heffernan, 125 N. Y. S. 737; In re Funston, 133 Misc. 620, 233 N. Y. S. 81; In re Crosby, 126 Misc. 250, 213 N. Y. S. 86; People v. McCabe, 148 Misc. 330, 266 N. Y. S. 363; In matter of Wilcox, 153 Misc. 761, 276 N. Y. S. 117, and cases cited therein. It would seem that the weight of authority supports the proposition that it is improper for a grand jury to present with words of censure and reprobation a public official or other person by name without presenting him for indictment and the accused has the right to apply to the court to have the objectionable matter expunged from the court records. 24 Am. Jur., Grand Jury, § 36; 38 C. J. S., Grand Juries, § 34(3). Ex parte Robinson, 231 Ala. 503, 165 So. 582; Bennett v. Kalamarzoo Circuit Judge, 183 Mich. 200, 150 N. W. 141; In re Report of Grand Jury of Baltimore City, 152 Md. 616, 137 A. 370; In re Report of Grand Jury, 204 Wis. 409, 235 N. W. 789; In re Presentment to Superior Court, 14 N. J. Super. 542, 82 A. 2d 496.
The ease of In re Healy, supra, is a decision rendered by the Judge of the Queens County Court of New York and involved a report criticizing an individual who was not found to be a public official. The court found that-the grand jury had no right to make the report and expunged it from the record. However, the court also reviewed the New York cases involving public officials and by way of dictum approved the majority opinion in the Jones case, supra. In ordering the grand jury report expunged the court said: “To single out an individual, not by reason of any acts in public office, not by reason of any acts as a public official, and to condemn him with out a trial, without ail opportunity to be heard, without the privilege of making a defense in a free American court of justice, to attempt to deprive him of his good name, to besmirch his character, is so unfair, so repugnant to the ideals of the administration of justice in America, as to merit the disapproval of this court.
“The petitioner, Healy, has been accused and censured not as a public official but as an individual, and in no reported ease in this country of which this court has cognizance has any such action been approved. ’ ’
In Ex parte Cook, 199 Ark. 1187, 137 S. W. 2d 248, we held that it was within the trial court’s discretion to receive or reject a grand jury’s report criticizing a former county judge’s administration of county affairs where the investigation was at his request and the report did not amount to charges or accusations of criminal offenses. In that case we emphasized the fact that the former offioial had invited the report, saying: “We think petitioner’s act in requesting an investigation was responsible for the result . . . ” See, also, Application of Knight, 176 Misc. 635, 28 N. Y. S. 2d 353.
We find it unnecessary to a determination of the present ease to definitely adopt either of the conflicting views expressed by the majority and minority opinions in the Jones case, stipra. Since we have concluded that the matters set out in the report under consideration were sufficient to warrant an indictment of petitioners for the crime of slander, they are entitled to have the report expunged under either view. Petitioner Faulkner is a member of the Malvern School Board, but did not join in the request for the grand jury investigation. Petitioner Coleman is a private citizen. If petitioners were guilty of slander they should have been indicted for that offense. As the matter stands, they are in effect found guilty of a crime by an arm of the judiciary that is not empowered to try them. They stand condemned upon the public records without a trial and are afforded no forum in which they might be confronted with their accusers and the truthfulness of the charges against them judicially tested, although they have diligently sought an opportunity to be heard at every step of the proceedings.' Under these circumstances, there is no room for judicial discretion and petitioners have a right to the relief sought. .
“ The writ of certiorari is accordingly granted and the report of the grand jury will be expunged from the circuit court records. It is so ordered.
Ark. Stats., §§ 41-2405 and 2409; State v. Waller, 43 Ark. 381.
Ark. Stats., § 43-907 provides that the grand jury must inquire, “First. Into the ease of every person imprisoned in the county jail, or on bail, to answer a criminal charge in that court, and who is not indicted. Second. Into the condition and management of the public prisons of the county. Third. Into the wilful and corrupt misconduct in office of public officers of every description in the county.” | [
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Griffin Smith, Chief Justice.
Arthur S. Krohn’s divorce action was dismissed, as was his wife’s cross-complaint asking for maintenance money during separation.
The parties were married in 1921 and have two children, each being of legal age. Appellant at times lives with her married son who is a disabled veteran. The son has been told by physicians that amputation of an injured leg is necessary. Sometimes the son sends small monetary gifts to his mother, but the necessities incidental to his own household and the support of a wife and three children forbid material assistance.
In 1947 appellee filed divorce actions in Arkansas and in Illinois. He and appellant had been residents of Illinois for more than 25 years, but in the fall of 1949 they moved to Memphis, Tenn. Thereafter appellee, who was the cross-defendant in this action, again sought to establish a residence in Arkansas for divorce purposes. Krohn readily admitted that he came to Arkansas in 1947 — the same year he attempted to procure a divorce in Illinois — but this suit, like the one in Illinois, was dismissed and he “returned” to Illinois. Appellant testified that at the time the proceedings in Illinois were dismissed her husband had agreed to pay separation maintenance on the basis of $80 per month, but the promise was not kept. Illinois residence property ill-suited to habitation was the only realty owned by either. Its value was not in excess of $550.
From Memphis appellee again came to Arkansas. This step was taken in 1950, but in the meantime he had worked as a rural mail carrier in Illinois, an employment resulting in certain retirement or death benefits. In the event of Krohn’s death a lump-sum would be paid to his wife. He intimated that because of this prospect Mrs. Krohn was resisting divorce.
When appellee came to Arkansas from Memphis in 1950 he procured employment as a taxicab driver at an average net weekly wage of $30, and he again undertook to gain matrimonial freedom. Mrs. Krohn came to Little Bock, met her husband, and the two spent a night together at a tourist court. There is testimony supporting inferences that Mrs. Krohn was advised to do this in order to meet her husband’s accusations with evidence showing condonation. It appears that Mrs. Krohn had agreed not to mention the circumstances for the reason that her husband might be subject to indictment for perjury on testimony given in support of his divorce action. In any event the cause was dismissed. The chancellor summarized these maneuvers in the following comment from the bench: (Addressing appellant’s counsel who had just said that Krohn admitted he made a false statement)^ — “Yes and I dismissed the case on account of it, but that is water over the dam. I thought it was about fifty-fifty: she lied to [her husband] about not telling it, and he lied to the court about not doing it.”
The proceeding resulting in this appeal was initiated in 1951. The complaint alleged that the Krohns had lived together until September 28 of that year. Abuse, an attitude of contempt and studied negligence systematically and habitually pursued, were alleged. The answer and a categorical denial and cross-complaint charged desertion, abuse, etc., but asked that the suit be dismissed with appropriate directions for separate maintenance.
There is documented testimony strongly indicating that appellee had for a number of years been associating with a woman to whom he was engaged prior to his marriage to appellant in 1921. Letters bearing expressions of endearment disclose mutual affections substantially greater than a Platonic relationship, but the evidence as a whole follows the familiar pattern of accusation and denial.
Our view is that the chancellor felt that the parties were without equity because of the misrepresentations each had made. Appellant would distinguish in degree by calling attention to the fact that her assurances that certain matters would not he revealed were not made under oath, while appellee’s false, testimony was given in court.
We conclude that the chancellor did not abuse his discretion in declining to aid either, hence the decree is affirmed. | [
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Griffin Smith, Chief Justice.
B. AY. Pace and his brother, J. M. Pace, and their sister, Mollie, lived on 240 acres owned by B. AY. Neither was married and their home life appears to have been marked by conventional tranquillity quite in keeping with their rural surroundings and self-sufficiency. The land had been owned by B. AY. since 1895 and the three occupied the same house until Mollie died in 1939 and B. AY. died in 1942.
In 1937 B. AY. executed a deed to the land, naming J. M. and Mollie as grantees, a condition being that the instrument was not to take effect “. . . until the death of the said B. AY. Pace.” The acknowledgment was before a justice of the peace who died several years before the instant suit was brought.
Two brothers surviving B. AY. were Manse and Alex. Six brothers and sisters had predeceased B. AY., some of whom left issue. The claims of these survivors to various estate interests forms the subject-matter of the adverse decree resulting in this appeal.
In September, 1947, J. M. conveyed to H. P. Young, his nephew. Young undertook to acquire the interests of certain heirs. The collateral kinsmen of B. AY. and Mollie Pace then conferred and concluded to attack the deed executed by B. AAr. to J. M. and Mollie, alleging, (a) that B. AY. Pace lived under the supervision of J. M.; (b) that the three Paces — B. AY., J. M., and Mollie — gained their subsistence from the land; (c) that no consideration was paid for the deed, and (d) that B. AY., “if not actually mentally incompetent, was of such inferior mentality that he was not able to comprehend the effect of business transactions. ’ ’
It is also argued that a fiduciary relationship existed between B. W. and J. M., and that the latter must be held to a high degree of accountability in dealing with the property of his brother.
The chancellor found that when the deed was delivered B. W. was in full possession of his mental faculties, that it was given for value and conveyed the property in question.
Appellants emphasize the rule that gifts will be scrutinized with the most jealous care when made in favor of a party who occupies a confidential relationship — a relationship which makes it the duty'of the person benefited by the bounty to guard and protect the interests of the donor; and further, it is the duty of such beneficiary to give such advise as would promote the purposes of the giver. As Mr. Justice Butler said for the court in Young v. Barde, 194 Ark. 416, 108 S. W. 2d 495, “. . . this duty is not confined to cases where there is a legal control. [Such duties] are supposed to arise wherever there is a relationship of dependence or confidence — especially that most unquestioning of all confidences which springs from affection on the one side and a trust in a reciprocal affection on the other.”
The competency of B. W. Pace to deal with his material affairs was questioned' in 1926 when Alex Pace and others petitioned the probate court of Columbia county for an adjudication of incompetency. The evidence was submitted to a jury and a verdict finding that B. W. was of sound mind “and competent to attend to his own business” was returned. This adjudication is in sharp contradiction of testimony given by witnesses for appellants in the case at bar. Many of them thought that B. W. ’s mentality was that of a ten- or twelve- year-old child.
In 1938 B. W. sold timber to J. E. Speer Lumber Company for $1,000, and in 1938 he executed an oil and gas lease to Hunt Oil Company for $1,200. In March, 1940, B. W. was adjudged insane and a guardian was appointed. He was then 80 years of age.
Some of the appellants, or witnesses by whom they undertook to establish B. W.’s incompetency, testified that they did not observe any change in the subject’s condition between 1924 and 1937 or ’38. It was shown that B. W. maintained an account with Peoples Bank of Waldo, but checks were signed, “B. W. Pace, by J. M. Pace.” Testimony as abstracted indicates that at the time of his death B. W. had approximately $2,000.
J. H. Williams, who handled the timber transaction for the Speer Company, testified that he talked the matter over with B. W. Pace; J. M. was around somewhere on the premises, but did not have any direct connection with the timber sale. The first offer was $800. This was refused by B. W., as was an offer of $900. During these negotiations (resulting in an agreement to pay $1,000) there was nothing in B. W.’s actions to indicate that he did not thoroughly understand what was being done; in fact, he succeeded in getting $200 more than was first offered.
Although the testimony is in acuminated conflict and appellants do not rely wholly upon observations- and beliefs of interested persons, — and this is equally true of appellees— we cannot say that the Chancellor’s findings are not supported under the equity rule.
Affirmed.
Mr. Justice McFaddin not participating. | [
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J. Seaborn Holt, J.
This action was begun in the Circuit Court by Southark Trading Company against appellees, Pesses and Miller, to obtain a judgment on two notes amounting to $1,409.30 (principal and interest), which had been executed by appellees to C. R. Olson and wife, and by them transferred and assigned to appellant, Southark. The cause was later transferred to equity. Pesses and Miller answered the complaint, admitting the execution of the notes, and in a cross complaint asked that C. R. Olson and wife be made defendants, and alleged that the two notes had been delivered to the Olsons in part payment of all the stock and assets of Concrete Products Company, a corporation owned by the Olsons, which had been purchased by appellees from Olsons and that following the purchase appellees were required to pay to the United States ■ Government $1,172.02 on a deficiency assessment on income taxes levied against the corporation and this amount which they were required to pay should be offset against the amount they owed Southark on the two notes.
Trial resulted in a decree in favor of appellees. The findings of the court were, in part, as follows: “On April 15, 1949, in connection with the purchase of all stock of Concrete Products Company, a corporation, the Defendants, H. G. Miller and I. L. Pesses, executed and delivered to C. R. Olson and his wife, Kathryn I. Olson, a series of promissory notes evidencing a part of the purchase price of the stock of said corporation.
“That two of said notes of April 15, 1949, in the total principal sum of $1,224, which notes matured in the amount of $611 on September 15, 1950, and in the amount of $613 on October 15, 1950, were acquired previous to the filing of this suit by Southark Trading Com pany by endorsement from C. R. Olson and Ms wife, KatMyn I. Olson.”
That Southark is entitled to recover from Pesses and Miller the amount of the two notes, $1,409.30, with interest from date of the decree.
“That, however, the Court finds that because of certain representations and statements made by the Cross-Defendant, C. R. Olson, to H. G. Miller and I. L. Pesses at the time of the execution of said two notes above described on April 15, 1949, and prior to said date, the Defendants, H. G. Miller and I. L. Pesses, as the successors of Concrete Products Company, a dissolved corporation, have been damaged in the total sum of $1,172.02 on account of a disallowance by the United States Government of a certain income tax refund claim made by Concrete Products Company previous to April 15, 1949, and by a levy on January 5, 1950, by the United States Government on a deficiency assessment for additional income taxes determined to be due and owing by Concrete Products Company, a corporation, for the tax year 1946.
“That the Plaintiff, Southark Trading Company, is not a holder in due course of the above mentioned notes of April 15, 1949, and did not acquire said notes prior to the maturity thereof and that the acquisitions of said two notes by Southark Trading Company was made subject to any defenses that H. G. Miller and I. L. Pesses might urge against said notes held by the Cross-Defendants, C. R. Olson and his wife, Kathryn I. Olson.
“That on account of the damages and loss sustained by Harry G. Miller and I. L. Pesses in the total sum of $1,172.02 above described, the said defendants, H. G. Miller and I. L. Pesses, are entitled to recoup and offset said damages in said amount against the judgment above granted against said defendants for $1,409.30 in favor of Southark Trading Company, the Court finding that said offset and recoupment allowed said defendants is to be offset against said judgment on said notes in favor of Southark Trading Company.
“That after allowing said offset and recoupment to the defendant against said judgment of the plaintiff there remains due the sum of $237.02 for Avhich the Southark Trading Company shall have judgment against H. G. Miller and I. L. Pesses, with interest at 5% per annum from the date of this decree until paid.”
For reversal, appellants argue, in effect, that the preponderance of the evidence is against the court’s findings that Southark Trading Company was not a holder of the notes in due course and that C. R. Olson, to whom the notes were delivered in payment for his stock in the Concrete Products Company, by appellees, Pesses and Miller, had made certain false representations to appellees upon which they relied to their detriment. We hold that the findings of the trial court were not against the preponderance of the testimony.
Material facts appear not to be in dispute. On April 15, 1949, Pesses and Miller bought from C. R. Olson all of the stock and assets of Concrete Products Company, an Arkansas corporation, owned by C. R. Olson, giving him in payment $18,000 cash and a series of notes, including the two here involved. The sale which was completed by transfer of the corporate stock, in effect, amounted to appellees purchasing all assets of Concrete Products Company and acquiring these assets by transfer of the stock of the Corporation. The sale included accounts receivable, and among them Olson represented that there was a valid income tax refund of $605.73 from the United States Government to Concrete Products Company, Avhich appellees would receive. Thereafter, Olson and Avife sold and transferred the notes to appellant, Southark Trading Company. Olson was the owner of Southark and its president and manager at the time the notes were sold to Southark. He so testified. It is also undisputed that Pesses and Miller not only were denied the refund of the tax by the Government, but in fact were required to pay to the Government additional taxes owed by Concrete Products Company in the amount of $566.29. This latter amount, plus the $605.73 (total $1,172.02), appellees, as indicated, claimed as a credit on their indebtedness to Olson.
We hold that the court correctly found Southark was not a holder, in due course, of the two notes, in the circumstances, that Southark therefore took title to the notes subject to all defenses available to the makers, and that Pesses and Miller were entitled to be credited $1,172.02 on their note to Olson.
Appellants also contend that appellees have waived all rights for damages. We do not agree. This contention appears to be based on the fact that appellees, after being notified that Concrete Products Company had been denied any tax refund from the Government, and after they had called on Olson to make good their promised refund ($605.73) and the deficit ($566.29), and he had refused, they thereafter “made payments to Olson on account of their indebtedness for the purchase of his corporate stock.”
The rule appears to be well settled that in order to invoke the rule of waiver, as contended here, it is “essential to show that the defrauded party intentionally condoned the fraud, affirmed the contract, and abandoned all right to recover damages for the fraud, with full knowledge thereof. The affirmance must be equivalent to ratification. The question of outright waiver is one of intent; and it is essential to such waiver that the victim possess full knowledge of the fraud practiced upon him and that he intend to affirm the contract and abandon his right to recover damages for the loss resulting from the fraud.” 24 Am. Jur., § 209, page 34.
We find no evidence that appellees intended to condone Olson’s act and with full knowledge thereof, abandoned their rights to recover damages.
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Ed. F. MoFaddin, Justice.
Appellant, Cbetopa State Bank, of Cbetopa, Kansas (hereinafter called “Bank”) filed tbis action in replevin to repossess a Chevrolet Coupe from appellee, Manes. From a jury verdict and judgment for Manes, the Bank prosecutes tbis appeal.
On April 3,1950, M. M. Weaver and Wanda Weaver, bis wife, were residents of Cbetopa, Kansas. They obtained a loan from the Bank for $743.50, secured by a chattel mortgage on the Chevrolet Coupe here involved. The mortgage was duly filed and recorded in the County Clerk’s Office, as required by the Kansas law. The latter part of April or early May, 1950, the Weavers secretly drove away from Kansas in the Chevrolet Coupe, and did not return. In late May, 1950, the Weavers were in Arkansas, and sold the Chevrolet Coupe to Frank Carder, an automobile dealer in Searcy, Arkansas, and exhibited and surrendered to him a Kansas Certificate of Title to the car, showing no lien claim of any kind.
Carder sold the Chevrolet Coupe to Barger, who had the car registered under the Arkansas Title Certificate Law (Act 142 of 1949) and obtained an Arkansas Title Certificate which showed no liens on the car. Barger then sold the Chevrolet Coupe to the Appellee, Manes, who had the title transferred to himself and holds an Arkansas Title Certificate, dated July 20, 1951, showing a clear title.
As aforesaid, the Circuit Court trial resulted in a Jury verdict for Manes, because the Trial Court, over the Bank’s general and specific objections and exceptions, instructed the Jury:
“. . . You are further instructed that the law of the State of Arkansas provides that one who holds a lien against an automobile in the form of a vendors lien or chattel mortgage or conditional sales contract or other lien shall file and register such lien with the State Revenue Department of the State of Arkansas, and that if and when such lien holder does file his evidence, of his lien or claim against the automobile with the Revenue Department from that time on, notice to everybody that such lien exists, and the law further provides that if such lien or claim is not filed with the State Revenue Department that it is not notice to third persons dealing with reference to such automobile. So, gentlemen, if you find from a preponderance of the evidence in this case that the plaintiff does hold a valid unpaid chattel mortgage against this automobile and that there is an unpaid balance of some amount on said indebtedness then you will find for the plaintiff for the possession of said automobile or for the balance due on the indebtedness unless you further find from a preponderance of the evidence that the plaintiff has not and did not file evidence of his claim or lien with the Revenue Department of the State of Arkansas. In the event you find from a preponderance of the evidence the plaintiff did not file evidence of its indebtedness with the State Revenue Department and that this automobile was purchased by the defendant without such evidence having been filed with the Revenue Department by the plaintiff, then you ivill find that the defendant was an innocent purchaser of the automobile and that the lien of plaintiff is not binding upon him.”
We have italicized the concluding portion of the Instruction to call attention to the fact that it was in effect a peremptory instruction for the defendant, since there was no claim that the Bank had ever filed evidence of its Certificate of Indebtedness with the Revenue Department of Arkansas.
It is asserted by Plaintiff and not denied by Defendant that the filing of the mortgage in Kansas perfected the Bank’s lien, and that the Bank’s mortgage was good in Kansas, even against an innocent purchaser. We held in Nelson v. Forbes & Sons, 164 Ark. 460, 261 S. W. 910, and reaffirmed in Hinton v. Bond Discount Co., 214 Ark. 718, 218 S. W. 2d 75, that “a chattel mortgage, executed and valid in another State, and properly recorded there, will be enforced in Arkansas on removal to this State, even against an innocent purchaser.” So the Bank in the case at bar contends that it is entitled to recover the car against Manes.
But Manes relies on Act 142 of 1949, which is the Arkansas Motor Vehicle Registration and Certificate of Title Act, and claims that such Act became effective after Hinton v. Bond Discount Co., supra, and changed the rule of law stated in that case. Manes claims that the provisions of Act 142 of 1949 are mandatory; that the Bank was required to have the foreign vehicle registered in this State to perfect its lien; and that Manes is entitled to prevail because he purchased the car in reliance on an Arkansas Title Certificate which showed no lien.
We are thus brought squarely to the question, ¿whether a prior lien on a motor vehicle good in the State where the parties lived and the transaction occurred, is superior to an after acquired title when the car is brought into Arkansas and a Title Certificate obtained from the Revenue Department of this State which shows no lien. We have never decided the precise question, since Act 142 of 1949 is a comparatively recent statute, but Courts of other States have decided cases involving somewhat similar questions; and there is a diversity of holdings.
The leading case on one side is that from the Supreme Court of Florida in Lee v. Bank of Georgia, 159 Fla. 481, 32 So. 2d 7, 13 A. L. R. 2d 1306, in which it was held that a prior mortgage duly recorded in Georgia, and covering an automobile, was inferior to the after acquired title in Florida, when the purchaser relied on a title certificate issued by the Florida Motor Vehicle Commission.
The leading cases on the other side are from Arizona, Ohio, and Forth Carolina. The Supreme Court of Arizona, in Ragner v. General Motors Acceptance Corp., 66 Ariz. 157, 185 Pac. 2d 525, held that a prior chattel mortgage on an automobile, duly recorded in Texas and Louisiana, was superior to a title subsequently acquired in Arizona, in reliance on a title certificate issued by the Arizona Highway Department and showing no liens. The Court of Appeals of Ohio, in Associates Discounts Corp. v. Colonial Finance Co., 88 Ohio App. 205, 98 N. E. 2d 848, reached the same conclusion on the law as did the Arizona Court. A result in accord with the Arizona holding was also reached by the Supreme Court of North Carolina in the case of Friendly Finance Corp v. Quinn, 232 N. C. 407, 61 S. E. 2d 192. Likewise, a result in accordance with the Arizona holding was reached by the California Court of Appeals in Atha v. Bockius, 232 Pac. 2d 312.
We feel constrained to follow the holdings from Arizona, Ohio, and North Carolina, as previously mentioned, and the references to those cases dispense with reiterating all the reasons for our holding. It is clear that the purpose of our Certificate of Title Act (Act 142 of 1949) was to protect the owners of automobiles against fraud. If evidence of title has been procured through fraud and deception, the title of the subsequent innocent holder for value, which arose therefrom, can have no greater solemnity than the source from which it sprang. If Instruction No. 1, as given by the Court in this case, should be declared to be the law, then the purpose of Act 142 of 1949 would not be to protect the owner of the automobile against fraud, but to allow a title certificate to have the effect of a negotiable instrument. The very purpose of said Act 142 would be overridden and it would protect a title acquired through misrepresentation and fraud, and leave the rightful owner empty handed.
Accordingly, we hold that Manes’ title certificate issued by the State of Arkansas was not in itself sufficient to overcome the Kansas mortgage relied on by the appellant Bank; and the Instruction given by the Trial Court and previously copied was erroneous; and for that reason the judgment is reversed and the cause is remanded.
In view of the possibility of another trial, we think it only fair to state further facts reflected by the record so that our holding here will not foreclose other issues that were in the case. The facts showed that when Weaver and wife obtained the $743.50 from the Bank, they mortgaged not only the Chevrolet Coupe here involved, but also a Chevrolet pick-up truck; and that the Bank repossessed the mortgaged truck, sold it, and applied the proceeds on the Bank’s note and thereby reduced the balance to $71.50; that Carder contacted the Bank and was advised that the balance due on the Chevrolet Coupe was only $71.50; that Carder did not pay this amount, since he relied on the Kansas Title Certificate which Weaver had, showing no lien; that later the Bank admitted that another party had a mortgage on the pick-up truck claimed to be superior to the Bank’s mortgage; that the Bank paid $400 to satisfy such outstanding mortgage on the pick-up truck, and added the $400 and interest to the $71.50 balance, which had been previously quoted to Carder; and that the Bank delayed some time before filing the replevin suit and then claimed a lien on the Chevrolet Coupe for an amount in excess of $471.50. Thus, besides the question of the Arkansas Title Certificate herein decided, there are other questions in this case; i.e., (a) whether the Bank acted with due diligence and is entitled to full relief; or (b) should be estopped to claim more than the $71.50 which it represented to Carder; or (c) should be estopped for failure to hold the Kansas Title Certificate, rather than trust it to the Weavers. The effect of these facts and others is not decided in this opinion, as it is confined to the error of the Court in giving the Instruction previously copied.
Beversed and remanded.
The Chief Justice not participating.
M. M. Weaver and Wanda Weaver were made defendants and summoned constructively. Their whereabouts are unknown and their connection with the case appears in this opinion.
Sec. 58-301 et seq. of the General Statutes of Kansas of 1949.
The Kansas Statute on Certificate of Title of Automobiles^ is Sec. 8-135 of the General Statutes of Kansas of 1949. In studying this case we have examined the following cases from Kansas. Sorensen v. Pagenkopf, 151 Kans. 913; 101 Pac. 2d 928; Hess-Harrington v. State Exchange Bank, 155 Kans. 118, 122 Pac. 2d 739; Citizens State Bank v. Farmers Union, 165 Kans. 96, 193 Pac. 2d 636; General Motors Acceptance Corp. v. Davis, 169 Kans. 220, 218 Pac. 2d 181, 18 A. L. R. 2d 808; Peabody State Bank v. Hedinger, 170 Kans. 237, 224 Pac. 2d 1014; Rauh v. Dumler, 170 Kans. 698, 228 Pac. 2d 694; see, also, Case Note on p. 273 of Peb. 3951 issue of the Journal of the Bar Association of Kansas. Our opinion herein is predicated on the statement contained in the appellant’s brief, and uncontradicted by the appellee, to the effect that the recording of the mortgage in Kansas fully established the Bank’s lien, and that the Bank was not required to have the Title Certificate show the existence of the chattel mortgage.
Another case in which lex loci contractus was applied is that of Pruitt Truck & Implement Co. v. Ferguson, 216 Ark. 848, 227 S. W. 2d 944. We there said: “The Arkansas law of Conflict of Laws necessarily recognizes the validity of foreign-created titles in chattels brought into this State, and under our law not even a sale to a bona fide purchaser here will cut off such a prior legal title.”
In 13 A. L. R. 2d 1338, there is an Annotation entitled: “Effect of local statute requiring filing or recordation of lien on automobiles; certificate of title acts”; and other cases are collected in the said Annotation.
Even though there was an issue of subrogation in the California case which led to a remanding of the cause, nevertheless the holding on the priority of the earlier out-of-state lien was in accord with the Arizona holding.
In Blaylock v. Herrington, 219 Ark. 939, 245 S. W. 2d 576, we held that a title certificate was not a negotiable instrument.
We have borrowed language from the Ohio Court in making the above statements. | [
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Ed F. McFaddin, Justice.
This is a “four-cornered” lawsuit. As hereinafter referred to: (1) “Smith” is W. L. Smith, a resident of Benton County, and engaged in the growing of chickens for the commercial broiler market. (2) “Bureau” is the Benton County Farm Bureau Association (Inc.), of Rogers, Arkansas, and engaged in furnishing feed, etc. to persons such as Smith, and also engaged in acting as the agent of Finance Company. (3) “Finance Company” is the Arkansas Farm Bureau Finance Company, Inc., with its home office in Little Rock and a branch office in Fayetteville, and engaged in financing persons such as Smith. (4) “Insurance Company” is the Providence Washington Insurance Company, of Providence, Rhode Island, and engaged in the fire insurance business in this State.
In October, 1947, Smith had 5,000 chickens which he was growing for the broiler market. He had been buying his feed and other supplies from Lester Clover, but decided to give his business to Bureau. Bureau had a contract with Finance Company, to act as its agent in obtaining persons to be financed, so that Finance Company would pay Bureau for the feed, etc. that such persons received. Accordingly, on October 23, 1947, Bureau required Smith to execute a note for $3,300, and a chattel mortgage on his said chickens. Bureau sent the note and mortgage to Finance Company, which had the mortgage filed in the Circuit Clerk’s Office of the County. Included in the note was the amount of fire insurance premium on Smith’s chickens. The payee in the said $3,300 note and the grantee in the said chattel mortgage, executed by Smith, was not Bureau, but was Finance Company, because Bureau and Finance Company had the relationship previously mentioned.
From October 23rd until December 20th, Bureau furnished feed and supplies to Smith in the amount of $2,046.97. On November 25, 1947, Finance Company notified Bureau that Finance Company would not accept the Smith note and mortgage and, therefore, would not reimburse Bureau for any past or future advances Bureau made, or might make, to Smith. Neither Finance Company nor Bureau ever informed Smith of Finance Company’s rejection of the note and mortgage: on the contrary, the note and mortgage were retained by Finance Company, and Bureau continued to furnish Smith with feed and supplies up to December 20th.
Finance Company had a floater insurance policy with the Insurance Company, with the premium computed and paid on a monthly reporting basis. This was not a “name by name” report, but only a gross volume report, so that the Insurance Company had no way of knowing which individual grower’s chickens were insured by the premiums so remitted. Finance Company did not include any part of the Smith note and indebtedness in the report to the Insurance Company for the October business or the November business; and it was not until Finance Company’s remittance of January 21, 1948, that Finance Company attempted to remit any premium for insurance coverage on Smith’s chickens.
On December 20, 1947, 3,100 of Smith’s chickens were destroyed by fire; and this lawsuit ensued. The parties and their claims were as follows:
(a) Bureau sued Smith for $2,046.97 for feed and supplies furnished him; and in the same suit, Bureau also sued Finance Company for $2,046.97, alleging that Finance Company had agreed to obtain insurance for Bureau on the Smith chickens and that Finance Company’s rejection of the Smith note and mortgage was ineffectual.
(b) Smith answered the Bureau complaint by cross-complaining against Bureau, and also suing Finance Company; and claiming that Bureau, for itself and as agent of Finance Company, had promised to obtain fire insurance on Smith’s chickens, and that neither Bureau nor Finance Company had ever notified Smith to the contrary.
(c) Finance Company denied all liability to Bureau and to Smith, stating that Finance Company had rejected Smith’s loan and had so notified Burean, and that such rejection and notice to Bureau terminated any possible liability of Finance Company to Smith or to Bureau, insofar as insurance coverage was concerned. But Finance Company also cross-complained against the Insurance Company, claiming that Finance Company had an omnibus coverage policy with Insurance Company which insured Finance Company against loss by fire occurring to the property of anyone indebted to Finance Company, if such account had been duly reported, and that Finance Company had reported the Smith indebtedness on January 21, 1948.
(d) The Insurance Company denied all liability to Finance Company: stating that the first attempt of Finance Company to pay any premium on the Smith account was on January 21, 1948, which was more than a month after the fire loss; and that the Insurance Company had denied liability on the Smith fire shortly after the fire and long before January 21, 1948.
On the issues made by the pleadings, all four parties introduced evidence to a jury. It developed in the proof that Lester Glover, who had furnished feed, etc. to Smith prior to Smith’s dealings with Bureau, had some insurance on Smith’s chickens, and that the amount of this insurance reduced Smith’s net loss to $1,029. The jury returned three verdicts:
(1) In favor of Bureau against Smith for $1,029.
(2) In favor of Smith against Finance Company for $1,029.
(3) In favor of Finance Company against Insurance Company for $1,029.
The net result of the three verdicts was that the Insurance Company Avas cast for $1,029. The Insurance Company filed its motion for neAv trial and has appealed from the order overruling same. Likewise, Finance Company filed its motion for new trial, insofar as the judgment of Smith against Finance Company was concerned, and has appealed from the order overruling said motion.
I. The Judgment of Bureau Against Smith. Smith has not appealed from that judgment, so it need not be discussed.
II. The Judgment of Smith Against The Finance Company. The Finance Company has appealed from this judgment and claims:
“. . . there was not any evidence to justify the submission of the matter to the jury, and that the lower court erred in allowing the issue to go to the jury ...” In view of the fact that the jury reached a verdict in favor of Smith, we review the evidence most favorable to support the verdict. So reviewed, the evidence discloses: that Finance Company had a written contract appointing Bureau as its agent; that the manager of Bureau went to Fayetteville where the Smith note and mortgage were prepared by Finance Company; that the manager of Bureau then had Smith execute the note and mortgage, which were immediately sent by Bureau to Finance Company; that Finance Company had the mortgage duly filed in the Circuit Clerk’s Office to complete the lien on Smith’s chickens; that Bureau, as agent of Finance Company, told Smith that the note included the fire insurance premium on his chickens; that prior to December 20th (the date of the fire) Smith was never notified that Finance Company had rejected his note; that Finance Company at all times retained the Smith note and mortgage; and that Bureau continued to furnish feed, etc. to Smith from the date of the note (October 23rd) until the date of the fire (December 20th).
With these facts established by the evidence, we hold that a case was made for the jury by Smith. Since the Bureau was the agent of the Finance Company, the latter must be held responsible for the failure of its agent to notify Smith that his note and mortgage had been rejected. Since Smith was continuing to receive feed, etc. from Bureau because he had executed the note and mortgage, he had a right to believe that Finance Company, as mortgagee, had acted in good faith and used reasonable care in effecting insurance coverage. That the Finance Company could have obtained such insurance by the exercise of reasonable care, is demonstrated by the fact that the Finance Company did have an insurance policy covering any accounts that it might report.
In several of our cases, the mortgagee had the right but not the duty to obtain insurance, and under such situations, we logically held that the mortgagee, being under no obligation to obtain such insurance, could not be held liable for the failure to obtain it. Some such cases are Milburn v. Peoples B. & L. Assn., 106 Ark. 415, 153 S. W. 605; and Kissire v. Plunkett-Jarrell Gro. Co., 103 Ark. 473, 145 S. W. 567. But these cases inferentially recognize that if the mortgagee had agreed to obtain insurance, then the breach of such an agreement would entitle the mortgagor to redress.
In Broyles v. International Harvester Co., 202 Ark. 267, 150 S. W. 2d 733, and again in Derby v. Blankenship, 217 Ark. 272, 230 S. W. 2d 481, we recognized that an oral agreement to obtain insurance was valid and the breach of such agreement would afford redress in the courts. In 36 Am. Jur. 852, the holdings from the various jurisdictions are summarized:
‘ ‘ A mortgagee who agrees to place insurance on the mortgaged property has been held liable as an insurer for failure to execute his agreement properly, that is, in good faith and with reasonable care.”
Supporting the foregoing statement are the two Annotations, being 41 A.L.R. 1283 and 130 A.L.B». 598; and in the first mentioned Annotation, the holdings are summarized :
“The effect of the decisions is to uphold the proposition that a mortgagee who has agreed to place insurance on the mortgaged property must act in good faith, and must use reasonable care, ...”
The execution of the note and mortgage by Smith to the Finance Company furnished the consideration to support the oral promise to insure as made by Bureau, Finance Company’s agent, to Smith. So we affirm the verdict and judgment for Smith against the Finance Company.
III. The Judgment of Finance Company Against the Insurance Company. The Insurance Company was entitled to an instructed verdict in its favor. The policy issued by the Insurance Company to the Finance Company provided, as one of the conditions for insurance coverage, that the Finance Company agreed “. . . to keep an accurate itemized record showing all property insured hereunder and to pay premiums monthly at the rate of 65 fi per $100 per month on the unpaid balance, as of the last day of each month, and to report such values to this company not later than the 15th day of the following month.”
The undisputed evidence shows that at no time prior to the fire did the Finance Company enter the Smith note and mortgage on its books, so, therefore, the Finance Company did not include the Smith account in the “accurate itemized record showing all property insured.” Likewise, the undisputed evidence shows that at no time prior to the fire did the Finance Company report to the Insurance Company anything about the Smith note and mortgage, or tender to the Insurance Company any premium so as to make the insurance binding on the Smith property. If the fire had occurred, say, on October 29th — which was in the month in which the account arose — then there might be a real question as to insurance coverage, but that situation is not before us.
From October 23rd to'November 25th, the Finance Company received in its day by day reports from the Bureau (covering furnishings made by Bureau on notes held by Finance) regular reports of furnishings made to Smith; yet in neither the October nor November report to the Insurance Company, did the Finance Company include anything about the Smith account, and prior to the fire made no payment of any premium on that account. It is, therefore, clear that at the time of the fire, the Finance Company had no insurance on the Smith property.
We consider, next, what happened after the fire, which might effectuate insurance on property already destroyed. The testimony shows that a day or two after the fire, Bureau reported the Smith loss to an adjuster for the Insurance Company, and such adjuster promptly denied liability, since there had been no insurance. Then Finance Company discussed the Smith loss with the local Fayetteville Agent for the Insurance Company, and Finance Company claims that such agent told Finance Company to include the Smith premium in the Finance Company’s report to the Insurance Company for December (to be made January 15th) and see if the Insurance Company would admit liability on the Smith loss. The Finance Company lays great stress on this remark of the local agent. But such statement of the local agent was not an admission of liability that would bind the Insurance Company, even assuming that the local agent had power and authority to bind the Company (which point is not decided): rather, the statement of the local agent was a suggestion as to possible procedure that the Finance Company might use to see if the Insurance Company would admit liability.
The Finance Company waited until January 21st, and then in the monthly report for December, included a premium of $14.21 on the Smith account for December. This was in a gross amount of $425.76 and without reference to any name or note maker. As soon as the Insurance Company learned that the Finance Company was trying to include the Smith item, the Insurance Company promptly denied liability. Our case of American Ins. Co. v. Russell, 183 Ark. 285, 35 S. W. 2d 1014, was an attempt by an insured to remit a premium after the fire, and in refusing relief to the insured, this Court held that acceptance of a past due premium after loss without knowledge of the loss did not revive a previously forfeited policy. The rationale of that holding as applied to the case at bar is that the Insurance Company is not bound for a loss occurring before the property was ever reported when the Insurance Company did not know that a tendered premium was included in a gross sum.
The Finance Company claims that the following language in the policy gives the Finance Company 90 days in which to list the report of the Smith note and mortgage:
“If, at any time during the term of this policy for a period of more than 90 days, the assured shall fail to make declaration of amounts as required herein, this insurance shall forthwith become suspended and shall be of no force or effect until reports shall have been delivered by the assured to the Company or its authorized representative; . . .”
This quoted language refers to the effect of an entire failure of the Finance Company to make any report for a period of 90 days. It does not extend for 90 days the duty imposed on the Finance Company to make a monthly report. The quoted language is a restriction on liability and not an extension for reporting.
Finally, the Finance Company says that the insurance policy here involved was ambiguous and therefore the question of coverage should have been submitted' to the jury. We find no such ambiguity in the policy, as Finance Company claims. The policy covered only items that were duly reported, and the Smith account was never reported until after the fire, and that was too late. Furthermore there was no admission of liability.
Conclusion
The Circuit Court judgment for Smith against the Finance Company is in all things affirmed, and in addition, Smith will recover all his appeal costs from Finance Company.
The judgment of Finance Company against the Insurance Company is reversed and such cause is remanded, with instructions for the Trial Court to dismiss the claim of Finance Company v. Insurance Company, and award the Insurance Company all its costs to be recovered from Finance Company.
See eases collected in West’s Arkansas Digest “Appeal & Error”. § 930.
By endorsement on the policy, this was subsequently changed to m.
That is, the Insurance Company. | [
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Ed. F. McFaddin, Justice.
Appellant, a school teacher, brought this action against appellee, School District, to recover a bonus of $172.02 claimed by appellant under Act No. 319 of 1941, known as “The Arkansas Teachers ’ Salary Law, ’ ’ which, with amendments, is now found in § 80-1301 et seq., Ark. Stats. The Trial Court entered judgment for the School District, and this appeal ensued.
The facts were stipulated and the cause was tried by the Court sitting as a Jury. Appellant was employed as a teacher for School District No. 5 of Grant County, for a 7-months term of 1947-8, at $95 per month. The contract was in the usual form. Appellant performed the contract and received $665 therefor, being $95 per month for 7 months. Some time in the 1948-9 school year, it was established that there had been an unexpended balance of $172.02 in the Teachers’ Salary Fund of said School District No. 5 for 1947-8. This balance could have been paid to appellant under our holding in Fowlkes v. Wilson, 205 Ark. 895, 171 S. W. 2d 958; and on September 18, 1950, appellant filed this action against the present appellee, and sought to recover the said $172.02.
■But events which occurred after the close of the 1947-8 school year clearly establish that prior to the filing of this action, the appellant had received the equiva lent of the bonus that she here seeks. We mention three such matters:
(1) The Directors of School District No. 5 carried the $172.02 (balance from 1947-8 school year) into the Teachers’ Salary Account for the school year 1948-9; and because of such sum, said School District No. 5 was enabled to have a 9-months school term in 1948-9; and appellant was employed by said School District No. 5 to teach a 9-months school term in 1948-9, at a salary of $125 per month.
(2) In the early part of the 1948-9 school year, the County Supervisor of Grant County (in which both School District No. 5 and School District No. 37 were located) conferred with the State Department of Education concerning the carry over of $172.02 made by School District No. 5, and was advised that such procedure would be approved in this instance: so the County Supervisor did not order the County Treasurer to withhold warrant payments, as provided in § 80-1306 (b) Ark. Stats.
(3) During the 1948-9 school year, School District No. 5 was consolidated with School District No. 37 (the present appellee); and School District No. 37, in order to complete School District No. 5’s contract with appellant, used all of the money in the Teachers’ Salary Account in School District No. 5, plus $60 of appellee’s money. Thus, appellant received under her 1948-9 contract all of the $172.02, plus $60 additional; and there is no evidence of any complaint being registered by the appellant as to the $172.02 being carried over from the 1947-8 year to the 1948-9 year until shortly before, and in evident anticipation of, the filing of this action.
Appellant relies on our holding in Fowlkes v. Wilson, supra, wherein we held that the balance remaining in the Teachers’ Salary Fund of a School District at the end of a school year should be paid to the teachers as a bonus. That litigation arose prior to Act No. 136 of 1943 and Act No. 301 of 1945; and the last mentioned Act amended § 3 of Act 319 of 1941, as well as Act 136 of 1943, so that after 1945, the law contained subdivision “(f)” of §§ 80-1303 Ark. Stats., which reads in part:
‘ ‘ Each district in the state shall spend for teachers ’ salaries in each fiscal year not less than 90% of the total revenue accruing to the Teachers’ Salary Fund during that fiscal year, plus any cash surplus in the Teachers’ Salary Fund carried over from the previous fiscal year, plus any money received by the district from the State Teachers’ Salary Fund.”
Thus the Legislature by the above quoted language recognized that there might be a small surplus in the Teachers ’ Salary Fund ‘ ‘ carried over ’ ’ to the succeeding year; and this subdivision “(f)” undoubtedly influenced the decision of the State Board of Education, as previously mentioned.
We conclude that the appellant has received all of the amount of $172.02 here sought, plus an additional amount supplied by the appellee District.
The judgment of the Trial Court is affirmed.
School District No. 5 was an entirely separate District from the present appellee when the contract was made, and was later consolidated with the present appellee, as will hereinafter appear,
See § 80-1306 Ark. Stats,
No language similar to this subdivision “ (f) ” was in the law that governed at the time of our decision in Fowlkes v. Wilson, supra. The subdivision “ (f) ” was first added by Act No. 136 of 1943. | [
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Ed. F. McFaddin, Justice.
This case stems from the financial dealings of J. A. Robinson and Pillsbury Mills, Inc.; and certain background facts must be recited for. an understanding of the controversy. As hereinafter referred to:
(1) “Robinson” is J. A. Robinson, a resident of Northwest Arkansas;
(2) “Pillsbury” is Pillsbury Mills, Inc., a corporation engaged in the manufacture and sale of various kinds of grain products;
(3) “Sequoyah” is Sequoyah Feed & Supply Company, Inc., an Arkansas corporation, engaged in the retail sale of feed and grain products in Fayetteville, and other places in Northwest Arkansas;
(4) “Cotton” is Cotton Produce Company, a partnership composed of Robinson, Ashworth and Weir, doing business at Huntsville, Arkansas, and engaged in raising chickens for the commercial market; and
(5) “Bank” is the First National Bank, of Huntsville, Arkansas.
Background Facts.
Beginning in March, 1945, Bobinson acted as commission agent for Pillsbury in the sale of its products to dealers; and payments were due to Bobinson from Pillsbury when, as, and if the dealers paid Pillsbury. Later Bobinson organized Sequoyah, which acted as a dealer for Pillsbury products in several communities near Fayetteville. All of the stock in Sequoyah was owned or controlled by Bobinson, who also organized “Cotton” as a partnership at Huntsville. This partnership owed the Bank a note for $7,000.
In June, 1950, an audit disclosed that Bobinson was individually indebted to Pillsbury in excess of $93,000, and that Sequoyah was indebted to Pillsbury in excess of $84,000. Because of this indebtedness a contract (in two parts) was made on August 5, 1950, by the terms of which:
(a) Bobinson transferred all of the outstanding certificates of stock of Sequoyah to three officials of Pillsbury;
(b) Bobinson also transferred other assets to Pillsbury and to Sequoyah;
(c) Pillsbury released Bobinson from the $93,000 personal indebtedness;
(d) Sequoyah became an endorser on the $7,000 note that Cotton owed to the Bank; and
(e) Bobinson continued as a broker of Pillsbury products on a commission basis and agreed that all commissions due him by Pillsbury, in excess of $700 per month, might be retained by Pillsbury and applied on any amount that Sequoyah should pay as endorser on the note of Cotton to the Bank, as aforesaid.
Cotton continued in business in Huntsville and became indebted to Sequoyah on open account in the sum of $5,062.24; also Bobinson, while subsequently engaged in growing chickens in Fayetteville, became indebted to Sequoyah in the sum of $7,181.71, which was secured hy a chattel mortgage. Then events began to happen in chronological order, as follows:
(1) On February 5, 1951, Pillsbury terminated the commission agency contract with Robinson;
(2) On April 21, 1951, Sequoyah notified the Bank (in accordance with § 34-333 et seq., Ark. Stats.) that Sequoyah desired to be released from its endorsement of Cotton’s $7,000 note to the Bank;
(3) On April 23, 1951, Sequoyah filed suit against Robinson in the Washington Chancery Court seeking-judgment for the said $7,181.71 and foreclosure of its mortgage. Sequoyah also had a writ of garnishment served on Pillsbury to cover any amounts that Pillsbury might owe Robinson, and this garnishment was later renewed;
(4) On April 24, 1951, Sequoyah filed the present action in the Madison Circuit Court against Cotton seeking judgment for $5,062.24 due on open account; and Sequoyah had garnishment served on the Bank;
(5) Because of § 34-333 et seq., Ark. Stats., the Bank took charge of all of Cotton’s chattel property covered by the mortgage. Then, on May 5, 1951, Cotton, Robinson, and Sequoyah stipulated that the Bank hiight sell all the said chattels and apply the proceeds on the $7,000 note, and that “the other parties hereto, to forthwith pay to said Bank the remaining sum due thereon.” The Bank sold the chattels and Sequoyah then paid the Bank $4,902 balance due on the endorsement. Pillsbury then paid Sequoyah that amount out of the retained commission account of Robinson, under the terms of the said August, 1950, agreement. By February, 1952, additional amounts had become due to Robinson from Pillsbury in the sum of $4,433.87, but this was covered by the writ of garnishment issued by the Washington Chancery Court in the said case of Sequoyah v. Robinson.
This Lawsuit.
As aforesaid, on April 24, 1951, Sequoyah filed this action in the Madison Circuit Court against Cotton to recover judgment of $5,062.24 on the open account, and caused a writ of garnishment to be served on the Bank. Robinson and Ashworth filed answer denying all the allegations of the complaint, and also filed cross-complaint against Sequoyah and Pillsbury for $25,000 damages for breach of contract as distinguished from tort. The basis of the damage claim against Pillsbury was that Pillsbury was all the time indebted to Robinson and withheld payment with the result that the entire business of Cotton had been taken by the Bank under its mortgage and sold for a grossly inadequate sum. The basis of the damage claim against Sequoyah was that Sequoyah had assumed and agreed to pay the $7,000 note of Cotton to the Bank, and that the failure of Sequoyah to make such payment had damaged Robinson and Ashworth. Sequoyah and Pillsbury filed separate denials to the cross-complaint and the case was tried to a jury in March, 1952.
At the conclusion of the trial, the Court:
(a) Directed a verdict for Sequoyah against Cotton for $5,062.24 due on open account; and the judgment rendered on that verdict is not questioned on this appeal;
(b) Directed a verdict for Robinson against Pillsbury for $4,433.87; and the judgment rendered on that verdict is one of the issues to be subsequently discussed; and
(c) Submitted to the jury the question of the damages claimed by Robinson and Ashworth; and the jury returned a verdict for them and against Sequoyah for $6,336; and the judgment rendered on that verdict is to be subsequently discussed.
I. The Judgment for Robinson Against Pillsbury for $4,433.87. This judgment was based on the verdict directed by the Court; and the correctness of such verdict and judgment is the point now at issue. In Robinson’s and Ashworth’s cross-complaint against Pillsbury, they sought $25,000 damages from Pillsbury because of its failure to pay- — out of Robinson’s retained commis sions — the $7,000 note that Cotton owed the Bank. There was no allegation or prayer in their cross-complaint that judgment be rendered for Robinson against Pillsbury for the balance of such commissions. The omission of such allegation and prayer was possibly because the pleaders knew that in the case of Sequoyah v. Robinson, filed in the Washington Chancery Court (and hereinafter referred to as the “Washington Chancery suit”) one day prior to the present action, not only had a writ of garnishment been served on Pillsbury, but also Robinson had cross-complained against Pillsbury for damages. The fact of such suit and garnishment was shown in the evidence in the present case.
At all events, it was not until Robinson had completed his testimony in the present case that he asked to be allowed to amend the pleadings to conform to the proof. This motion was granted by the Court over Pillsbury’s objections-; and thereupon, Pillsbury offered in evidence the entire file of pleadings from the Washington Chancery case. The Court refused to admit such introduction, and we hold such refusal was error.
If the Court had permitted such introduction, the Court would have found that in the Washington Chancery case involving $7,181.71, not only had a writ of garnishment been served on Pillsbury, but furthermore Robinson had — in the Washington Chancery case — cross-complained against Pillsbury for damages. This cross- complaint against Pillsbury had been filed by Robinson in the Washington Chancery Court on October 12, 1951, and Pillsbury had joined issue by answer filed on February 22, 1952, which was prior to the motion to amend the pleadings in the case at bar, as such motion was made at the trial which began on March 10, 1952. If the record had been allowed to be introduced in evidence, then Pillsbury would have had before the Court facts on which to base a plea of abatement because of prior suit pending. See Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467; Wilson v. Sanders, 217 Ark. 326, 230 S. W. 2d 19; and other cases collected in West’s Arkansas Digest “Abatement & Revival,” Key No. §8 et seq.
But there was further error by the Trial Court in directing a verdict for Robinson against Pillsbury when the evidence had already been disclosed that the Washington Chancery case (filed by Sequoyah against Robinson) was filed prior to the present case, and involved in excess of $7,100, and that Pillsbury as garnishee only held $4,433.87 belonging to Robinson. When a garnish-' ment has already been obtained in one jurisdiction and the defendant in that action later sues the garnishee in another jurisdiction, then in the absence of a governing statute, there are three lines of holdings as to what should be the course of procedure in the second action: (1) some courts hold that the proceedings in the second action may be abated until the termination of the garnishment proceedings; (2) other courts hold that trial of the second action should be continued to await the termination of the garnishment proceedings; (3) and other courts, while proceeding to judgment in the second action, suspend execution until the termination of the garnishment proceedings.
A study convinces us that the better reasoned cases support the second holding. Applied to the case at bar, this means that the cross-complaint of Robinson against Pillsbury for $4,433.87 should have been continued until the termination of the garnishment proceedings in the Washington Chancery Court. Robinson filed no pleading in the Madison Circuit Court seeking the $4,433.87 judgment. He waited until the evidence was completed and then asked that the pleadings be amended to conform to the proof. In view of the state of the record we hold that the Madison Circuit Court should have continued the claim of Robinson v. Pillsbury for the $4,-433.87 until the garnishment proceedings had been concluded in the Washington Chancery Court. That Court first acquired jurisdiction. There were several interveners in the Madison Circuit Court case, and at the beginning of the present trial on March 10, 1952, the Court specifically reserved certain phases of the issues involving the interveners for later developments. The Robinson v. Pillsbury item of $4,433.87 should likewise have been so reserved.
Therefore, we reverse the judgment, in favor of Robinson and against Pillsbury for $4,433.87 and remand that angle of the controversy to the Madison Circuit Court with directions that an order of continuance be entered to await the final outcome of the garnishment proceedings in the Washington Chancery Court.
II. The Judgment Against Sequoyah for $6,336.00. The Circuit Court submitted to the jury the questions: (a) whether Sequoyah and/or Pillsbury had unlawfully damaged Robinson and Ashworth by refusing to pay the said $7,000 note due by Cotton to the Bank; and (b) if so, then how much damages should Robinson and Ashworth recover from either Sequoyah or Pillsbury? Under such instruction, the jury returned a verdict for Robin son and Ashworth against Sequoyah alone for $6,336; and Sequoyah challenges such verdict and judgment.
We hold that the Trial Court was in error in submitting to the jury any question about Sequoyah being liable in damages, because the uncontradicted proof negatives such a question. In Robinson’s contract of August 5, 1920, Sequoyah became merely an endorser on Cotton’s note to the Bank. As an endorser, Sequoyah had the right to notify the Bank (as it did under § 34-333 et seq., Ark. Stats.) that Sequoyah desired to be released from the said endorsement. Even if Pillsbury had retained money from Robinson’s commissions to protect Sequoyah, still Sequoyah had a right to obtain a release from the endorsement. Sequoyah and Pillsbury were and are separate corporations; and the Court did not proceed on the theory of “piercing the fiction of the corporate entity,” because the Court declared the law to the Jury: “. . . You are instructed that Sequoyah Feed & Supply Company is a corporation, and that Pillsbury Mills, Inc., is a corporation, and that each is a separate and distinct entity and person from the other.”
Furthermore, after the Bank seized the mortgaged chattel property of Cotton in order to sell the same and determine the balance of Sequoyah’s endorsement liability, Robinson, Ashworth and Cotton signed a stipulation with Sequoyah, dated May 15, 1951, reading in part:
“WHEREAS, The First National Bank of Huntsville, Arkansas, is the owner and holder of a certain promissory note executed by Cotton’s Produce and en dorsed by Huntsville Hatcbery & Peed Co., Sequoyah Peed & Supply Co., all of said indorsers being liable to said bank for the payment thereof, said note bearing date of Jan. 17,1951, and for the principal sum of $7,000, . . .; and Whereas, the payment of said note is secured by a certain chattel mortgage bearing the same date as said note, and default in the payment of said note has been made, and all parties hereto and below signed in person or by their duly authorized agents being desirous of avoiding unnecessary expenses in said matter, . . .
‘ ‘ Said Bank will cause to be advertised a sale of all of said mortgage property . . . that out of the proceeds of such sale said bank shall deduct all actual and necessary expenses and costs of such procedure and sale and apply the balance on and to the payment of said note, or credit such sum thereon, the other parties hereto to forthwith pay to said bank the remaining sum due thereon. ’ ’
This stipulation admitted (a) that Sequoyah was an endorser of Cotton’s note, (b) that the mortgaged chattels could be sold, (c) that the proceeds could be applied on the note, and (d) that the determined balance would then be paid. This stipulation — and its execution was freely admitted by all parties — constituted a complete waiver of any potential damage claim against Sequoyah, as later asserted by Robinson and Ashworth. In view of this stipulation, the Trial Court, instead of submitting to the Jury the damage claim of Robinson and Ash-worth against Sequoyah, should have instructed a verdict in favor of Sequoyah for such damage claim. Such an instructed verdict was requested by Sequoyah. Therefore the damage judgment against Sequoyah is reversed, and on remand, the Trial Court will set aside such judgment.
Conclusion
The Trial Court ordered that certain funds that had been garnished in the hands of the Bank, would be held until further orders. There were several interventions in the case which, as previously mentioned, were left for further consideration. As between Sequoyah and Cotton, the garnishment of the Bank was good; but we fore-go any discussion of the garnishment because there may be some rights of the interveners yet to be adjudicated.
The security of the note was later strengthened by the Bank taking a mortgage on all of the chattel property of Cotton.
Weir did not file answer or cross-complaint.
The file is brought into the present record by Pillsbury’s offer to prove.
The cross-complaint of Robinson against Pillsbury in the Washington Chancery case contained this paragraph:
“This defendant further pleading states that the exact amount of commissions due to this defendant are unknown in view of the fact that he does not have access to the records of either Pillsbury Mills, Inc., or Sequoyah Feed & Supply Company, Inc., in connection with the amount of feeds and supplies and baby chicks shipped, but he alleges that said commissions are far in excess of the amount sued for by the plaintiff herein, and that by reason of the fraudulent scheme of Pillsbury Mills, Inc., to deprive this defendant of the full benefits of his contract entered into with Pillsbury Mills, Inc., that he has been damaged in the sum of $25,000, for which amount he is entitled to judgment, and that in addition thereto he is entitled to have the claims of Sequoyah Feed & Supply Company, Inc., against him extinguished, cancelled, and held for naught, and all funds impounded under writs of garnishment in this cause released to him.”
In the Washington suit, Pillsbury filed petition and bond for removal to the Federal Court, but Robinson’s motion to remand to the Chancery Court was duly granted.
The diversity of holdings is discussed in 5 Am. Jur. 32. See, also, 38 C. J. S. 423. As affecting suits in separate States, see the Annotation in 91 A. L. R. 959. See also Annotation in 166 A. L. R. 272.
The record of the Washington Chancery case does not disclose that Robinson superseded the garnishment in that case by executing bond under § 31-515 Ark. Stats. Whether the execution of such a bond would have allowed Robinson to proceed against Pillsbury in this Madison Circuit Court case, is a question we do not decide.
In our own case of St. L. I. M. Ry. v. Richter, 48 Ark. 349, 3 S. W. 56, the garnishment issued in another case was after the initiation of the principal suit. Yet even in that situation, we stayed execution awaiting the outcome of the garnishment case.
The contract provided:
“Sequoyah will assume the liability of Huntsville as endorser on a $7,000 note payable 6 months from date, which is the primary obligation of Cotton Produce Company, a partnership composed of Robinson, Tommy Weir, and ‘Cotton’ Ashworth. Robinson agrees that to the extent of any amount paid by Sequoyah on that obligation, all commissions due or to become due to him from Pillsbury may be applied on the liability of Cotton Produce Company to repay Sequoyah the amount so paid. Robinson further agrees that any commissions earned by him and payable on or after the date of this agreement, and before maturity of the note, in excess of $700 per month may be retained by Pillsbury until the note is paid or until Sequoyah is released from all liability thereon, as security for the obligation of Cotton Produce Company to repay Sequoyah any amount paid by Sequoyah on the note, and applied as payment of such obligation if and when payment is made by Sequoyah.”
Huntsville Hatchery & Feed Co. was a trade name of Sequoyah. | [
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Robinson, Justice.
There was a collision between an automobile driven by appellant, Morton Gluckmann, and one operated by appellee, H. P. Anderson, who filed suit for damages and recovered a judgment in the sum of $2,750.
There are two issues on appeal. First, is there any substantial evidence of negligence on the part of appellant Gluckmann? Second, does the evidence show that as a matter of law Anderson is guilty of contributory negligence?
Appellant Gluckmann was driving south on Highway 71 about 3 miles north of Alma, and when he reached a point approximately in front of a mercantile establishment known as Dean’s Market, he ran into the side of an automobile driven by appellee Anderson. North of the point where the collision occurred there is a decided dip in the highway; there is a conflict in this evidence as to just how far north of the point of collision is the bottom of the dip. There is evidence which indicates it is 100 feet, whereas there is other evidence indicating it is 300 feet. From the pictures introduced at the trial, it appears that it would be very difficult for one sitting in an automobile at the place of collision to see a car approaching from the north when it was at the bottom of the dip, or for one in an automobile at the bottom of the dip to see a car on the highway at the point of collision.
Anderson testified that he had stopped at Dean’s Market, which is on the west side of the highway; that when he was leaving there he saw two cars approaching from the north and waited for one of them to pass, and then attempted to cross over to the east half of the concrete highway as he wanted to go north. Gluckmann testified that he was going not over 50 miles per hour, and as he came out of the dip and reached the crest of the hill, he saw Anderson’s automobile on the pavement headed east about 100 feet away, that he swerved to the left, and that when he finally hit Anderson’s car he was headed east. There is substantial evidence to show that Anderson had passed over the west half of the highway and was on the east half headed north when Gluckmann struck him.
The evidence would justify a jury in finding that if Gluckmann had continued on his own side of the road, the collision would not have occurred; and that he was negli gent in not doing so; and from the testimony we cannot say as a matter of law that Anderson was guilty of contributory negligence.
Affirmed. | [
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Battle, J.
Ester Waren, a child about two and a half years old, was knocked down and seriously injured by one of the trains of the St. Louis, Iron Mountain & Southern Railway Company. He instituted this action against the railway company to recover the damages he suffered by reason of his injury. The main facts in the case are as follows: On the 24th of December, 1894, one of the defendant’s trains, composed of seven cars, a caboose, and an engine, going north, arrived at Portland, a town in Ashley county, in this state. It arrived about 3:15 in the afternoon, and, after stopping at the depot for a short time, received orders to move on the side track, and await the arrival and passing of a south bound train due at 3:12 p. m. In obedience to these orders, it backed down the main track, according to the testimony of some witnesses, at the rate of six to eight miles, and of others at the rate of ten to twelve miles an hour. While the train was backing, some witnesses say that the bell upon the locomotive or engine was ringing, and others that they did not hear it; some say that there were two brakemen upon the cars keeping a lookout, and others that they saw no one, although they looked to see if any one was upon the train for that purpose. About or during this time Ester Waren was pursuing a flock of domestic geese in the street not far from the train. His aunt was sent to take him back to the house, where his mother was, which was about sixty yards from the railroad track, and near to where the boy was playing. As the aunt approached, the boy fled, and she pursued. In his effort to escape he ran upon the railroad track in front of the backing train, at a distance therefrom which was variously estimated'by witnesses to be from twelve feet to sixty yards. His mother, seeing his danger, screamed aloud, and thereby gave a signal of great distress. Others hollowed, and waived their hands in an earnest effort to attract the attention of the trainmen to the boy’s situation. But these signals of danger and distress were not seen or heard. The train, unchecked in its speed, struck the boy, ran over him, cut off both of his hands, and lacerated and seriously injured one leg and foot. From these injuries he suffered excruciating pain. Opiates were necessarily administered to'enable him to endure it. When not asleep, he cried for his hands. He continued in that condition from four to six weeks. He has never been able to walk. He moves about with great difficulty by hopping; and in that way can travel only a short distance without resting.
Upon evidence tending to prove the foregoing facts, which was adduced in a trial before a jury, a verdict was returned in favor of the plaintiff against the defendant for the sum of $40,000; and a judgment was rendered accordingly. The defendant insists that this judgment should be reversed for the following reasons: (1) Because the court erred in refusing to allow Earle Newton, a lad of the age of 8 years, to testify in behalf of the defendant. (2) Because the court erred in instructing the jury, at the instance of the plaintiff, and over the objections of the defendant, as follows: “1. It is the duty of all persons running trains in this state upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employees of any railroad to keep such lookout, the company owning and operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, and the burden of proof shall devolve upon such railroad to establish the fact that this duty has been performed.” (3) Because the court erred inrefusing to instruct the jury at the instance of the defendant as follows: “The court instructs the jury that no railway company can be held liable for neglect where plaintiff by his own, negligence has contributed to the injury, unless it was a wilful injury, or one resulting from want of ordinary care on the part, of the company to avert it after plaintiff’s negligence has been discovered. And you must consider this without regard to the amount of negligence on each side. In other words, although you should believe that defendant company was in this case guilty of some negligence, and at first this negligence was the greater, still you must find for defendant, if you further believe that the injury was caused by Ester Warren appearing suddenly and without warning upon defendant's track so near a backing train that his dangerous position by the exercise of ordinary care was not discovered in time to avoid the injury.” And, in striking out the words “ordinary care,” wherever they appear in the instruction, and substituting therefor the words “due care,” and giving it as modified. (4) Because the court erred in refusing to give other instructions at the request of the defendant, and striking out the word “ordinary care,” wheresoever they appear therein, and substituting therefor the words “due care,” and giving themas modified. (5) Because the court erred in refusing to instruct the jury at the request of the defendant as follows: “31. The court instructs the jury that in the due and proper management of- its trains, and in the movement thereof, the defendant's employees were not required, as a matter of law, to notice and obey signals given by persons not in the employ of the defendant company.” (6) Because one of plaintiff's attorneys made improper statements while addressing the jury. (7) Because the damages rendered are excessive, and appear to have been assessed by the jury under the influence of passion or '-prejudice.
We will consider the alleged errors in the order stated,
First. The court properly refused to allow Earle Newton to testify. He, being under the age of ten years, was incompetent to testify, under the statutes of this state. Sand. & H. Dig., § 2916, sub-division 2.
Second. The instruction as to “the duty of all persons running trains in this state upon any railroad to keep a constant lookout for persons and property upon the track” should not have been given. An instruction to the reverse was held to be correct in St. Louis S. W. Ry. Co. v. Russell, 62 Ark. 185. Unexplained by other instructions, it would have been prejudicial to the defendant.
Third and Fourth. In striking out the words “ordinary care” in the instructions asked for-by the defendant, and substituting therefor the words “due care,” the court did not alter the legal meaning of the instructions. The modification was unnecessary. The defendant should have asked for an instruction explaining to the jury what was meant by the words “due care.” Failing to do so, it has no right to complain of the substitution. Fordyce v. Jackson, 56 Ark. 594, 602.
Fifth. The instruction as to the duty of the defendant’s employees to notice and obey signals given by persons who were not employed by it was properly refused.
Sixth. In his speech before the jury, after the close of the evidence, R. E. Craig, one of the plaintiff’s attorneys, said: “Mr. Taylor, in examining the witnesses, asked the question if their recollection was quite clear about things that happened two years ago, and if that was not a long time to remember the words of a man. For almost that length of time the plaintiff in this case, poor and poverty stricken, by changes of venue, by motions for continuances, and by those means known to those lawyers who undertake to conduct the railroad cases in this country — .” The defendant here objected to the remarks, and the court interrupted the speaker, saying: “Brother Craig, there is an exception to your remarks.” The speaker then continued: “I stand’ on the remarks. The record shows everything I have said. By those means, I say, and for that length of time they have succeeded in holding the plaintiff in this case in abeyance, but I am proud to say to you, gentlemen of the jury, today, that we have them at last where they can shirk no longer by any means known to the law, and that we now have the privilege of presenting to a jury of twelve honorable and honest and impartial jurors, this case, and the injuries to Ester Waren.” Defendant at the time objected to the above remarks by plaintiff’s counsel, but the court permitted him to proceed and make said remarks to the jury, over the said objections of the defendant, to which action of the court and counsel, the defendant at the time saved exceptions. At the close of said [attorney’s argument, the court instructed the jury that the above remarks were improper, and they should pay no attention thereto, specifically calling their attention to what was said of changes of venue and motions for continuances.
In another portion of his argument to the jury, said attorney, R. E. Craig, was further permitted by the court to make use of the following language: “If Hall and Meadows had not come before this jury, and testified exactly what the railroad wanted them to testify to, that is, that the bell was ringing, and that Hall and Meadows were in their places, what would have been the consequences? They would have' received their walking papers. There has never been a case before a jury where the railroad employees did not come before the jury and testify everything that was necessary for them’ to’ testify in order to maintain their places.”
The language used by counsel was highly improper, and for the use of it the speaker deserved vthe rebuke1 of the court. The rebuke given, if it may be called such, ,was- too mild to impress the jury with a pi*oper conception, of the [wrong done.
We have repeatedly condemned statements before juries without evidence to support them, and called'[attention to the duties of courts in such cases. In Kansas City, etc., R. Co. v. Sokal, 61 Ark. 137, we said: “Arguments by counsel of the evidence adduced and the law as given by the court are allowed only to aid them (the jury) in the discharge of their duty. Within these limits counsel may present their client’s case in the most favorable light they can. When they go beyond them, and undertake to supply the deficiences of their client’s case by assertions as to- facts which are unsupported by the evidence, or by appeals to prejudices foreign to the case, they travel outside of their duty and right, and abuse the privilege of addressing the jury by using it for a purpose it was never intended to accomplish; for such assertions or appeals can serve no purpose except to mislead the jury and defeat the ends of the law in requiring them to confine their consideration to the evidence adduced and the law embodied in the instructions of. the court. Hence it is the obvious duty of courts, in furtherance of the object of their creation, to prevent such assertions or appeals, or, when made, to remove their' evil effects, so^far as they can; and attorneys, in the making of them, if they are calculated to prejudice the rights of parties, are guilty of a violation of the law, of an [abuse of their privileges, of conduct unfair and unbecoming to their profession, and should be promptly and sternly rebuked by the courts, and, if need be, punished.”
“Ordinarily,” it is' said, “an objection by the opposing counsel, promptly interposed, followed by a rebuke from the bench, and an admonition from the presiding judge to the jury to disregard prejudicial statements, is sufficient to cure the prejudice; but instances sometime occur in which it is not sufficient.” As to whether it was sufficient in this case remains for us to determine.
The argument in the ease before the jury was concluded by G. W. Murphy, one of plaintiff’s counsel. At the conclusion of his speech a large crowd of citizens were collected in the court room, and some of them began to applaud his closing remarks in the presence of the jury. “Thereupon, immediately, and while the audience were applauding, the court reprimanded the audience for the same, and instructed the sheriff to ascertain, if possible, who the parties were, and'directed the jury not to allow such applause to influence them in rendering their verdict.” But no improper remarks or conduct are imputed to the eloquent counsel who elicited the applause.
Seventh. Are the damages recovered excessive? The plaintiff was two and a half years old at the time of the accident. His expectancy in life at that time could not have reasonably exceeded forty-eight years. For eighteen and a half years of this time he was and will be a minor. His earnings during this time of his minority belong to his parents. In return they are bound to care for, feed, clothe, and defray his expenses during his infancy. Consequently, he was not entitled to recover anything on account of such earnings and expenses. All that he was entitled to recover was his probable loss of earnings after he reached the age of twenty-one years, which he would have acquired had he not been injured, and the increased expenses he will probably incur on account of his injury after that time, and damages for past, present, and future pain from his injury, and for personal disfigurement; no exemplary damages being sued for, or asked for or allowed in the instructions to the jury. His right to recover for probable loss of earnings and increased expenses is limited to twenty-nine and a half years, the probable remainder of his life after the twenty-first year of his age. For this probable loss of earnings, and increased expenses, and for pain and disfigurement, he recovered $40,000. A part of this, the amount allowed for probable loss of earnings and increased expenses, should have been estimated as commencing to accrue eighteen and a half years after the accident — the twenty-first year of bis age — and tbe value of tbe use of tbe money allowed for sueb loss and expenses during bis minority should also bave been taken into consideration. The presumption is, bad he not been injured, bis capacity to earn after bis twenty-first year would not exceed that of ordinary men. Taking into consideration all these facts and tbe uncertainties of life, we think that tbe damages recovered are excessive. In arriving at this conclusion we bave not left out of consideration tbe pain and disfigurement of tbe boy, both of which are elements of compensatory damages. For them money is no adequate recompense; but, as tbe law can afford no other redress, it allows tbe sufferer to recover such an amount therefor as a jury, dispassionately considering all tbe circumstances, may reasonably deem sufficient. Measuring plaintiff’s light to damages for pain and disfigurement by this standard, we still think the damages recovered are excessive, and appear “to bave been given under tbe influence of passion or prejudice.” In view of this fact, we think tbe improper remarks of counsel were prejudicial, notwithstanding tbe admonition of tbe court to tbe jury. If they did not excite the-prejudice, they were calculated to increase it.
For the improper remarks of counsel and tbe excessive damages, tbe judgment of tbe circuit court is reversed, and tbe: cause is remanded for a new trial. | [
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Hughes, J.,
(after stating the facts.) It would not be profitable to set out the evidence. As we find the law to 'be, the main question in a case of this kind is, what was the intention of the party who had the structure erected? Did he intend it to be a permanent annexation to the soil, or was it erected with a view to its removal?
As evidence of what the intention was, the manner of its annexation to the soil, and the adaptation of the plant to the use or purpose to which that portion of the realty with which it is connected is appropriated, are circumstances that are to be considered, and “derive their chief value as evidence of such intention,” as held in Ewell on Fixtures, p. 22; Choate v. Kimball, 56 Ark. 55; Bemis v. First National Bank, 63 Ark. 629; Monticello Bank v. Sweet, 64 Ark. 502.
There is considerable conflict in the evidence as. to matters going to show with what intention the mill was erected, and there was some testimony from which it might be inferred that the mill was erected with a view to its removal.
But we are of the opinion that the manner of its substantial annexation to the soil, and its adaptation to the use or purpose to which that portion of the realty to which it was annexed was devoted, taken with the other evidence in the case, furnish a clear preponderance of evidence that the mill was erected with the intention that it should be permanent, and that it was a part of the realty, and passed to the intervener by purchase of the land upon which it was situate, or was subject to his vendor’s lien for the purchase money of the land.
Wherefore the decree of the circuit court is reversed, with instructions to enter a decree for the intervener in accordance herewith.
Mr. Justice Battle dissents. | [
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McCain, Special Judge.
This is an appeal from the Pulaski chancery court. Two suits were consolidated in the court below. One of these was a suit brought by Nick Kupferle, as trustee, on an account which H. G-. Allis had or claimed to have against the Electric Street Railway Co., and which he had assigned to Kupferle as collateral security for his indebtedness to the First National Bank of Little Rock. The amount claimed in this suit was $157,500. The other suit was an action brought by the receiver of said bank against the same defendant for an amount claimed to be due on several overdrafts and promissory notes aggregating a little over $110,000. The street car company, by answer filed in each case, disputed the correctness of the claims sued on, denied any liability on either claim, averred that the receiver was not the holder or owner of certain of the notes embraced in his suit, and by way of counter-claim asked for judgment over against the receiver for the proceeds of certain notes alleged to have been negotiated by the bank for the street car company.
. The chancellor appointed a master to state an account between the parties, and, on the coming in of the master’s report, the receiver was awarded a decree against the street car company for $106,850.26. Both parties appealed.
1. We conclude that the street car company has no right to complain of the chancellor for refusing to give judgment over against the receiver on the counter-claim. The contention of counsel on this point is plausible, but underlying it there is the fallacy that, in negotiating the notes in question, the action of Allis was the action of the bank. Allis was president of the bank, it is true, but he was also payee of the notes, and he was personally interested in their negotiation. This of itself made him a stranger to the bank, so far as the handling of these notes was concerned. An agent can not prostitute the name of his principal to the service of his own personal ends1, and this rule applies with full force to the official of a corporation in making use of the corporate name. Am. Surety Co. v. Pauly, 170 U. S. 133; 1 Morawetz, Corporations, § 517.
Not only so, but it was held by this court in Grow v. Cockrill, 63 Ark. 418, that a national bank can not engage in the brokerage business. It follows that officers of the bank had no authority to negotiate notes which did not belong to the bank. But it is said that the bank got the proceeds of the notes when they were discounted, and that for this reason the bank ought to account for the amount received. It is true that Allis deposited the proceeds of the notes-in the bank, or, which is the same thing, he had the amount passed to the credit of the bank by its metropolitan correspondents, to whom he remitted the proceeds. To deposit money in bank is the same in legal effect as to place an amount with its approval to' its credit in another bank. But the bank did not in this case get the proceeds of these notes, because Allis deposited the same to his own credit. It is no answer to this to say that he ought not to have done this, or that the bank ought not to have allowed him to do this. When you go to deposit money in bank, it must be a very extraordinary case in which the bank can challenge your right to say whether the deposit offered shall go to your credit or to that of some one else. As Allis in this case had unlawfully used the name of the bank in procuring the money on the nqtes, the bank official making the entry might well have refused to credit Allis with the deposit, and might have placed it to the credit of bills payable or re-discounts; but we are not satisfied that there was anything in the circumstances of the ease to require the bank to credit the amount to the street car company over the objection of Allis or without his direction.
It is said that the bank knew that this paper in Allis’ hands was accommodation paper. We are not certain that the bank did know this, but, if it did, that was the most satisfactory evidence that the street car company intended him to have the money. If you intrust a friend with your negotiable note, either for his accommodation or your own, you would hardly be allowed to complain that some one had discounted the paper for your friend, and allowed him to have the proceeds.
But, even conceding this, counsel sa^ it. was wrong for the bank to allow Allis to check out the money without Brown also signing the checks, as the latter was a joint payee with Allis in some of the notes. This is a matter of which it would seem that Brown alone coiild complain, but we may be sure that Allis did not get any money on a note payable to Allis and G. R. Brown without Brown’s signature to the note, and an inspection of the notes filed show that they bear Brown’s indorsement. This indorsement puts an end to any further demand for Brown’s signature.
We need not discuss what are the duties, if any, of a bank when, it finds a trustee depositing trust funds and checking them out in his own name. We do not think the street car company have made a ease calling for the determination of that question. It is a circumstance not to be overlooked in this connection that all these transactions took place long before either one of the corporations ceased to do business, and renewal notes were given by the street car company after they knew, or had an opportunity to know, what had been done with the proceeds of the original notes. What we have said disposes of the contention that the street car company is entitled to judgment against the receiver on the counter-claim. If we are wrong in our conclusion on this point, however, it would not follow that the street car company should have the affirmative relief claimed, since the chancellor allowed the street car company credit for this amount on the account .sued on by Nick Kupferle as trustee, and if the claim of Nick Kupferle were found to be just, then a credit on this is all that the street car company could ask.
2. Counsel insist that the receiver of the bank should not be allowed to recover in this action on certain notes embraced in the decree, because these notes at the commencement of the suit were, as the receiver admits, in the hands of a St.° Louis bank which claimed to hold them as collateral security for a debt due the latter bank. It seems that, after the suit was commenced, the St. Louis bank and the receiver reached an agreement, by which the notes were returned to the receiver, and the latter filed them in court for cancellation when the decree herein was taken. This defense, it must be agreed, is extremely technical, so much so that counsel seem to concede that, if all the parties were solvent, this plea would hardly merit attention, but the apology offered for the interposition of this defense is that the insolvency of the corporation destroyed the right to-make a transfer of claims to be used as a set-off. Since we have determined, however, that the street car company is entitled to no affirmative relief against the receiver, it has nothing to lose on this score.
This court held in Key v. Fielding, 32 Ark. 56, that where commercial paper is assigned as collateral, the assignee takes it as trustee of an express trust. Such a trustee, under our statute, may sue in his own name, but the assignor still has an interest in the paper assigned, and he is not an improper party plaintiff in a suit on the paper. If in. this case the St. Louis bank had refused to surrender the notes to the receiver for cancellation, the receiver might have made the St. Louis bank a party, so as to adjust the rights of all parties, but the course-pursued by the chancellor under the circumstances was proper,, and accomplished the ends of justice.
3. As to whether the plaintiff receiver was entitled to recover on the account assigned to Kupferle is a question which seems to be full of difficulty. From what the receiver and his counsel say in their brief, -we infer that the property of the street car company has all been consumed by mortgages foreclosed since the commencement of this suit. They accordingly express themselves as being indifferent as to the amount of the judgment obtained against the street car company. The court is pressed for time with important litigation, and, taking counsel at their word, we decline to go into the questions raised by the appeal on this branch of the case, as it-seems to be a matter of no practical interest or importance. We therefore grant the street car company the relief asked on this point, and modify the decree to the extent of the judgment entered on the Kupferle account.
If we are correct in the conclusions we have reached, as to the street car company’s set-off or counter-claim, there seems to be no other defense to the notes sued on except the counterclaim of $6,124, which was allowed by the master and approved by the decree of the lower court. We therefore deduct the sum $39,780.01, allowed on the Kupferle account, from the judgment of $106,850.26, rendered by the chancellor, leaving a balance of $67,070.25, for which amount the decree and judgment of the court below is affirmed.
The chancellor allowed the master a fee of $800, and adjudged the same as cost against the street car company. No complaint is made of the amount of the allowance, but the street car company insist that the chancellor erred in taxing it as an item of cost against the street ear company. Ordinarily, costs in equity, as at law, are to be adjudged against the losing party, but where there are equitable circumstances demanding a departure from this rule, the chancellor will tax the winning party with a portion, or even the whole, of the costs. Trimble v. James, 40 Ark. 393.
The large amount allowed to the master in this case without objection indicates that he must have expended quite an amount of time and labor in examining and adjusting the accounts between the two corporations. It can -hardly be said that either of the two corporations were to blame for the confusion and complications in their account, since both of them were the victims of Allis’ domination and fraudulent conduct of their affairs. The master seems to have been appointed by-consent. His investigation extended to the books and papers of both corporations, and in the books and papers of both were found inaccuracies, not to say frauds and falsehoods. In view of these circumstances, and the large amount of the allowance, we think it would be equitable to require each party to pay half the master’s fee, and it is so adjudged.'
Battle, J., disqualified. | [
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Riddick J.,
(after stating the facts.) This is an action upon a fire insurance policy to recover the value of property insured which had been destroyed by fire. The property is described in the written portion of the policy as a “stock of merchandise, consisting of drugs, stationery, liquors, tobacco, toys, and fancy articles, paints, oils, chemicals and such other goods, not more hazardous, such as is usually kept for sale in a drug store.” The printed portion of the policy stipulated that the policy should be void if benzine or fir.eworks were kept, unless by agreement indorsed on the policy. No such agreement was indorsed upon the policy, and the evidence showed that both benzine and fireworks were kept in the store of plaintiffs. The insurance company contends that this avoided the policy.
As to the benzine, only a small quantity was kept in the store. This was put up in bottles containing from two to six ounces each, to be sold to ladies for the purpose of cleansing gloves. It amounted to about a gallon in all. The testimony showed that it was customary for druggists to keep benzine bottled in small quantities to be sold for such purposes, and that, as one witness stated, “a drug store without it would be incomplete.” The question arises whether this benzine was not included in the written description of the property insured; for, if it was a part of the property insured, it follows as a matter of course that its presence in the store did not avoid the policy. The written portion of the policy insuring the benzine as a part of the stock of merchandise would override the printed portion forbidding it to be kept. To hold otherwise would make the contract mean in effect that the company contracted to take pay and insure the owner of this benzine against its destruction by fire, but only on condition that no benzine was kept. The courts will not presume that the parties intended to make such an absurd agreement, but in such a case will presume that the intention was that the printed portions of the policy forbidding the keeping of benzine should not apply to the keeping of it bottled in small quantities as customary with druggists, but only to storing or keeping it in lárge quantities. Faust v. Am. Ins. Co., 91 Wis. 158; Mears v. Humboldt Ins. Co., 92 Pa. St. 15; Hall v. Insurance Co., 58 N. J. 292; Pindar v. Insurance Co., 36 N. J. 648; Harper v. Albany Ins. Co., 17 N. Y. 197; Archer v. Merchants Ins. Co., 43 Mo. 434; Cushman v. Ins. Co., 34 Me. 487.
Now, the property insured is described as a stock of merchandise consisting, among other things, of “drugs” and “chemicals.” The word “drug” is defined as any animal or mineral substance used in the composition of -medicines; any stuff used in dyeing or in chemical operations; any ingredient used in chemical preparations employed in the arts. Webster’s Diet., The Century Diet. The term “chemical” is defined as a substance used for producing a chemical effect, or one produced by a chemical process; a chemical agent prepared for scientific or economic use. Webster’s Diet. The Century Diet. The definition of benzine given in Webster’s International Dictionary is “a liquid consisting mainly of the lighter and more volatile hydro-carbons of petroleum or kerosene oil, used as a solvent and for cleansing soiled fabrics.” It is used in the arts as a solvent for fats, resins and certain alkaloids. Century Diet.
Without going into a discussion of the scientific or exact meaning of these terms, we will say that, in our opinion, the evidence shows that benzine kept in the quantities and for the purposes that the proof shows that it was kept by plaintiffs was included in the terms “drugs” and “chemicals,” used in describing the property insured, and that the company intended to insure such benzine.
As the company writes the policy, the rule is to resolve doubts arising as to its meaning in favor of the assured. Jones v. Ins. Co., 38 Fed. Rep. 19. Benzine put up in small quantities was a part of the stock asked to be insured. Bottled and corked in such quantities, it was probably not more dangerous than other chemicals. It was not necessary to give the particular name of each drug or chemical, or other article that went to make up the entire stock, and the company, in describing the property insured, has chosen to use general terms, which we think fairly include the benzine in the stock. For these reasons we are of the opinion that the policy was not avoided by the fact that benzine was kept bottled in small quantities as a part of the stock of drugs and chemicals. The agents of the appellant company seems to have been of this opinion also, for, after the fire, when they had examined the books, and knew the facts, they- stated to plaintiffs that their policy was void because they kept fireworks, but said nothing of the benzine.
Was the policy avoided by the fact that fireworks were kept in plaintiff’s store? We will first notice the contention made by plaintiffs that the forfeiture, if any existed, was waived by a demand, made on the part of the company after knowledge that fireworks were kept in the store, that plaintiffs should exhibit their books, and make out proof of loss. The policy provided that, in ease of loss, the company should have the right to make an examination of the books of account kept by the assured, and that such examination should not be treated or considered as a waiver of any condition of the policy, or of any forfeiture thereof. For this reason the demand for the oooks and the examination thereof cannot we think be treated as a waiver of the conditions of the policy.
After finding from an examination of the books that fireworks had been kept, the adjuster of the company stated to plaintiffs that their policy was void because fireworks were kept; but he offered to settle by compromise, and they made an agreement to appraise the goods, it being stipulated therein that such agreement and appraisement should not waive any of the conditions of the policy. After the appraisement, the adjuster again told the plaintiffs that their policy was void, and that the company would resist any effort to collect it by action at law, but offered to pay another sum in compromise. This offer being refused, the adjuster said that he would leave on the first boat for Memphis. He was thereupon interrogated by one of the counsel for plaintiffs as follows: “Mr. Boyd, in behalf of these companies you represent, you have had the books, and have gone through' them. Do you require any further proofs of loss, or are. you satisfied with everything!” To which Boyd replied: “We shall insist upon strict proof of loss, under the terms of the policy.” Plaintiffs assert that this answer of Boyd waived all forfeitures.
Now, the positive denial of liability and assertion of the agent that the policy was void because fireworks were kept may have been a waiver of proof of loss,' but we do not think that the forfeiture, if any had occurred, was waived by the reply of the agent quoted above. By the terms of the policy, the assured agreed to furnish proof of loss, and agreed that the loss should not be payable until such proof was furnished. Unless proof of loss was waived, the assured had no right of action against the company until the same was furnished, and, in order to determine whether the company would waive such proof, or for some other reason, the attorney for appellee propounded the above question. What the agent said was in reply to this question, and, when taken in connection with his previous assertion that the policy was void, and that the company would resist its enforcement, meant, in our opinion, nothing more than that the company did not intend to waive proof, of loss.
In a recent case decided by the court of appeals of New York it was said that “the rule is now established that if, in any negotiations or transactions with the assured after knowledge of the forfeiture, the company recognized the continued validity of the policy, or does acts based thereon, or requires the insured to do some act or incur some trouble or expense, the forfeiture is waived.” The court further said that “while the later decisions all hold that such waiver need not be based upon a technical estoppel, in all cases where this question is presented, when there has been no express waiver, the fact is recognized that there exists the elements of an estoppel.” Armstrong v. A. Ins. Co., 130 N. Y. 560.
This seems to be a correct statement of the law upon this question. German Ins. Co. v. Gibson, 53 Ark. 494. Now, it will be noticed that the agent here made no demand or request that the assured should furnish proof of loss. He said nothing from which the assured could infer that if such proof was furnished the loss would be paid. It cannot be legitimately inferred from his reply, above quoted, that he intended to recognize the validity of the policy, for he had previously stated that the policy was void; nor was such reply calculated to mislead the assured in any way, and it cannot be taken as a waiver of the forfeiture, if any existed. We are therefore of the opinion that it was improper for the presiding judge to submit the question arising on this point to the jury, as he did in the third instruction given on the trial. While such an instruction might be properly given under a different state of facts, yet in this case there was no evidence upon which to base such an instruction, and it was calculated to mislead and was prejudicial to appellants.
But it is further contended by plaintiffs that there could have been no forfeiture of the policy on the ground that fireworks were kept, for the reason, as they contend, that the agent of the company .who issued the policy knew at the time it was issued that fireworks were kept in stock by plaintiffs, and that the issuance of the policy under such circumstances was a waiver of the condition forbidding fireworks to be kept. We will proceed to consider the evidence bearing on that point, for, if the proof was conclusive that the agent of appellant knew at the time he issued the policy that fireworks were kept in the store of assured, it would be presumed that tbe condition forbidding the keeping of such fireworks was waived, and the error above noticed would be harmless. It is now too well settled to require discussion that the issuance of a policy of insurance with knowledge of facts which by the terms of the policy render it void will be [treated as a waiver of such ground of forfeiture Insurance Co. v. Brodie, 52 Ark. 11.
And this is true, even though the policy contains a stipulation that the conditions of the policy shall not be waived by any officer or agent of the company unless such waiver be indorsed upon the policy. It is a general rule of law that the parties to a written contract may afterwards change or alter such contract by a parol agreement to that effect, and contracts with insurance companies furnish no exception to this rule. Phoenix Ins. Co. v. Public Parks Am. Co., 63 Ark. 187; Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; 2 Beach, Insurance, § 787.
The facts beariug on this point are as follows: The policy in question was issued by R. H. Crutcher & Go., a firm composed of R. H. Crutcher and one Friborg. This firm was the agent of the defendant company; and, in order to show that these agents knew at the time the policy was issued that fireworks were kept in the store, J. H. Flemming, one of the plaintiffs, was sworn as a witness. After stating that the policy was issued by Crutcher & Go., he was asked the following question: “Please state whether, at the time they issued this policy of insurance, they had notice and knew the fact that you kept fireworks for sale and on hand in that store?” To which he replied: “This policy was issued on the 24th day of December, I believe, at a time when our stock of fireworks was very large, and on exhibition, and Mr. Friborg bought fireworks from me during that Christmas, and knew we had them for sale.”
Now, no express waiver of the condition forbidding the keeping of fireworks is claimed, and in order that a waiver of such condition may be implied from the issuance of the policy, it must be shown that it was issued with knowledge on the part of the agent that fireworks were kept, and the burden of proof to show this is on the plaintiff. But the witness in the answer above quoted, wbieb was all the testimony on this point, does not show that the agent had such knowledge at the time the policy was issued. It does not necessarily follow from the fact that fireworks were on exhibition, or that one of the agents, after the policy was issued, purchased fireworks at the store that the agent issuing the policy knew of the presence of such fireworks. The fact that one of the agents went to the store shortly after the policy was issued to purchase fireworks is a circumstance tending to show that he knew that fireworks were kept there, but the witness does not say that this member of the firm issued the policy. The agent of the insurance company was a partnership, and each member of the firm could act for the firm, and issue the policy. If, in the course of the negotiations for this policy, and before it was issued, plaintiffs had notified either member .of the firm that they kept fireworks in their store, this would have been notice to the company, and it would have been bound; but no such notice was given. The knowledge of the fireworks shown here was acquired by the agent, not while acting for the company or his firm, but casually while attending to his own affairs. To make this knowledge affect the company, it must be shown that the agent afterwards, with this information present in his mind, issued the policy, or consented to its issuance, or did some act in the course of his duties as agent recognizing the continuing validity of the policy. Distilled Spirits Case, 11 Wall. (U. S.) 356. But this was not shown, or at least it was not so conclusively shown as to justify us in saying as a matter of law that the knowledge of the agent was established. We cannot, therefore, say that the error heretofore noticed was harmless, for the jury may not have found that the agent issuing the policy had notice of the fireworks, and may have based their verdict upon a belief that the forfeiture was waived by the statement of the adjuster that the company would insist upon strict proof of loss under the terms of the policy.
Several other rulings of the court have been called to our attention and considered, but, except as above stated, we do not discover that the court committed any material error.
We agree with counsel for appellant that instruction No. 2 given by tbe presiding judge is slightly defective in form, and it is possible that it might be misunderstood. We feel sure that if the attention of the judge had been called to the defect, it would have been corrected. It does not appear that his attention was called to it, or that appellant, during the trial in the circuit court, objected to the instruction on that ground, and a general objection is not sufficient to raise such a question in this court.
For the error indicated, the judgment is reversed, and a new trial ordered. | [
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Holt, J.
This litigation grew out of a dispute as to the correct division line between two adjoining residence lots in Little Rock.
The lots involved were described according to the recorded plat as Lot 1, Block 9, Jansen’s Addition to the City of Little Rock, and Lot 1, Block 1, Riffel & Rhoton’s Addition to the City of Little Rock, the Jansen lot lying east of the Riffel & Rhoton lot.
The question presented is whether the boundary line should be fixed on the center line dividing the two lots in accordance with the recorded plat description above, or along a zigzag line marked partly by a hedge on the north end and a rock retaining wall on the south that is west of the center line some four feet on the north end and seven feet on the south.
Appellees brought the action asserting title to the disputed strip, sought injunctive relief and the removal of a make-shift “tin” garage partly on the strip. The trial court found that appellees “are the owners in fee of Lot 1, Block 1, Riffel & Rhoton’s Addition to the City of Little Rock, Arkansas, as said addition is platted, and that the defendants have acquired no title to any portion of said lot by reason of any encroachments heretofore existing thereon, and that title in sqid lot should be quieted and confirmed in plaintiffs (appellees) and the defendant (appellants) should be restrained in interfering in any manner with the plaintiffs’ peaceful possession thereof, ’ ’ and entered a decree in accordance therewith, establishing the true line as platted. This appeal followed.
For reversal appellants contend that the line marked by the hedge and rock wall was shown to be an agreed boundary line and also claimed the strip by adverse possession.
It is undisputed that Joe LePlant, Sr., acquired by deed Lot 1, Block 9, January 18, 1938, and also Lot 1, Block 1, March 21, 1942, that he sold Lot 1, Block 1, to Henry Carpenter August 3, 1946, and Carpenter in turn sold Lot 1, Block 1, to appellees, the Dunns, on March 18, 1949. Mr. LePlant died prior to 1950, and on August 3, 1950, his heirs conveyed Lot 1, Block 9, to appellants, the Carneys. It thus appears that Mr. LePlant as early as 1942 owned both of these lots at the same time, and in all the deeds effecting their conveyance, including those to the parties here, no reference was made to the boundary line as hedge and wall as claimed by appellants. A legal description only was used in accordance with the recorded plat, simply describing the lots as above.
"When Mr. LePlant sold Lot 1, Block 1, to Carpenter in 1946, Carpenter testified in effect that the boundary line between the two lots was discussed and agreed upon, and LePlant admitted that the hedge line was over some three feet on appellees'’ Lot 1, Block 1, and a survey by Carpenter showed the distance to be nearer four feet. When Mr. LePlant’s attention was called to the survey, he said, “Well, I guess that is right,” and further told Carpenter that “I am going to move that garage down there, ’ ’ which was partly over the line on appellees ’ lot. There was no misunderstanding about the true line while Carpenter owned Lot 1, Block 1. E. A. Dunn testified that at the time he purchased from Carpenter in 1949, Joe LePlant, Jr., (son of Joe LePlant, Sr.) told him that the survey above reflected the true line, that the hedge-wall line was not the true line, and that the garage was partly over the line on appellees ’ lot, and that they would remove it. Dunn’s testimony appears not contradicted. Joe did not testify.
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.
“Platted lots may be conveyed by numbers corresponding with those of a township survey or on a recorded plat.” 26 C. J. S. 218 § 30d.
“In the absence of something in a deed clearly showing a different intention, a description of the land as a certain lot or subdivision generally conveys the whole thereof. . . . The word “lot,” when used unqualifiedly, means a lot in a township, as duly laid out by the original proprietors.” 8 R. C. L. 1082, § 138.
Appellants’ claim of title by adverse possession for a period of seven years is also untenable for the reason that the present suit was brought less than seven years after appellants bought Lot 1, Block 9, in 1950 from the LePlant heirs. Barham v. Gattuso, 216 Ark. 690, 227 S. W. 2d 151.
No errors appearing, the decree is affirmed. | [
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J. Seaborn Holt, J.
This litigation involved the distribution (and apportionment) of funds approximating $3,287.86 of the Bennett Drug Store, now remaining in the registry of the court, following a receivership. The record shows that on June 26, 1950, appellee, Bennett, and W. J. Roy and his son, Dr. J. M. Roy, entered into a partnership, evidenced by the following Bills of Sale: “By James T. Edgar to Paul Bennett, June 26th, 1950, for $30,000 cash in hand paid, the merchandise, fixtures, accounts, etc., of Jim Edgar’s Drug Store; and on the same day, by Paul Gr. Bennett to W. J. Roy and J. Max Roy, for $15,000 cash in hand paid, ‘an undivided one-half interest in and to’ the same personal property.”
Mr. J. W. Roy died intestate July 4,1951, and thereafter appellant, Mrs. Roy (his widow) acquired her son’s one-fourth interest, succeeded to the interest of her husband, J. W. Roy, and the business was thereafter continued in Forrest City, Arkansas, as a partnership between her and Bennett on a 50-50 basis, without any change.
On petition of Mrs. Roy, on November 2,1951, a manager was by agreement placed in charge of the business and on November 24, 1951, on petition of Mrs. Roy and her son, Dr. Roy, as administrator for his father’s estate, a receiver was appointed for the Bennett Drug Store, and by proper procedure, its property was sold to appellant for $32,500.
Just what is the interest of Mrs. Roy and that of Bennett in this money in the liquidation of the partnership is the primary question here.
It is undisputed that Mr. Roy and his son, Dr. Roy, put $15,000 in cash into the partnership at its inception by borrowing this amount from a bank (evidenced by their personal note) and that Bennett put in a like amount, $15,000, $10,000 of which he borrowed from Mr. Klinke in Memphis, giving his personal note therefor, endorsed by Dr. Roy. The principal ($15,000) of the Roy note was repaid to the bank, but interest in the amount of $900 was paid out of partnership funds. Bennett’s $10,000 note, with interest, to Klinke was fully paid in installments from partnership funds.
Mrs. Roy, appellant, earnestly contended below, and argues here, that she and Bennett, under the recitals in the above Bills of Sale and the evidence, were equal partners and each was to share in all profits and losses on a 50-50 basis, and that in the final distribution of assets, each should bear the losses only on this basis, and that the trial court erred in charging to Mrs. Roy 58.42% (based on her capital investment) of the losses and 41.58% to Bennett (based on his capital investment). We think the preponderance of the testimony supports appellant’s contention.
Appellee, Bennett, contended for a 50-50 sharing of all assets after debts were paid on the ground that it was agreed that what each had borrowed to put into the business was to be repaid out'of earnings, if any, and that each would share not only 50-50 in the losses but equally in the assets remaining after all debts were paid. He says: “That as the owner of a 50% interest in the partnership drug store, he is entitled to one-half of the funds on hand after the payment of all debts.”
Mr. Bennett testified: “Q. On the note is your signature and that of Dr. Roy. It was your understanding that the money from the drug store was to have been paid on the Klinke indebtedness ? A. That the money is to be refunded to me and the $900 interest paid to the Bank of Eastern Arkansas for the money they borrowed. Q. The $900 interest to the Bank was ultimately to be shouldered by the drug store, and the $5,000 to you and the $10,000 to Klinke? A. When the $15,000 was paid to the Bank, then I would get my $5,000. Q. The drug store was to pay the actual cost of it out of the profits. A. Dr. Roy understood about the $10,000.”
It is undisputed, however, as indicated, that the business produced no profits, but only losses, that Mrs. Roy, with proceeds from her husband’s life insurance, personally paid the $15,000 note to the bank and that only $900 interest on this note was paid from partnership funds (optimistically it would appear). It also appears undisputed that the $10,000 note of Bennett (principal and interest) and $110 for a vacuum cleaner were paid from partnership funds, and not by him personally.
In the circumstances, Bennett should he held personally liable to the partnership for his $10,000 note (principal and interest) arid the vacuum cleaner which were paid out of partnership funds just as Mrs. Roy should be and was charged with the $900 interest payment above. The remaining undistributed assets, after court costs have been paid, should then be paid on the basis of 50% thereof to Mrs. Roy and 50% to Bennett.
The decree is reversed and the cause remanded for further proceedings consistent with this opinion. | [
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Robinson, Justice.
This appeal involves title to property in the Town of Lonsdale, Arkansas. In 1921 the appellee Will Lowe purchased lo.ts 21, 22, 23, and 24 in Block 7 in the Town of Lonsdale, Garland County, and occupied the property with his wife until 1925, when they moved to Hot Springs. They separated in 1933 or 1934 and were divorced in June, 1937, at which time they were still living in Hot Springs. The divorce decree provides “that the plaintiff and defendant are the owners of Lots 21, 22, 23, and 24 in Block 7 in the Town of Lonsdale, Arkansas, and that the plaintiff is entitled to the use and occupancy of said premises during her lifetime . . . that the plaintiff Jennie Lowe he and she is hereby awarded the use and occupancy for herself and children of the premises above set forth for her natural life.”
Following the divorce, Mrs. Lowe moved onto other property belonging to her divorced husband; and Lowe collected the rents on the Lonsdale property until about 1943 when Mrs. Lowe took charge of that property. In July, 1943, Mrs. Lowe conveyed by warranty deed the Lonsdale property to the appellant herein, D. W. Pierce. A few days later Pierce moved onto the property and occupied it until 1948, when he rented it to Oliver Burks, who occupied the property paying rent to Pierce until 1951. During this period Lowe claims that about two months ’ rent was paid to him.
On March 2, 1951, Pierce, who had conveyed an undivided interest in the property to others, along with his grantees, filed this suit claiming to be owners of the property by reason of the deed from Mrs. Lowe and by adverse possession, and asked that title be quieted in them. Lowe was made a defendant. He answered denying the allegations of the complaint, and by way of cross complaint alleged that he is the owner of the property, and asked that the deeds from Mrs. Lowe to Pierce and from Pierce to others be cancelled as a cloud upon his title. The decree of the Chancellor quieted and confirmed the title in Lowe.
Lowe contends that his former wife had no interest that she could convey, and that her interest in the property was in the nature of a homestead right which she had abandoned.
It is our conclusion that at the time of the conveyance from Mrs. Lowe to Pierce, she owned a life estate in the property. The divorce decree provides “that the plaintiff Jennie Lowe be and she is hereby awarded the use and occupancy for herself and children of the premises above set forth for her natural life.” “The words ‘use and occupation’ properly state the nature of the enjoyment of property by a tenant for life.” Faxon v. Faxon, 174 Mass. 509, 55 N. E. 316.
Ark. Stats., § 34-1214, which applies to the division of property between the parties in divorce cases, provides: “ . . . and the wife so granted a divorce against the husband shall be entitled to . . . one-third of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life.”
In Frazier v. Hanes, 220 Ark. 765, 249 S. W. 2d 842, this Court said: “It was stipulated, however, that an order of the Sebastian Chancery Court was made in said suit of Hanes v. Hanes whereby Mr. Hanes gave possession of the home to Mrs. Hanes for her natural life. . . . Under the order of Sebastian Chancery Court in the maintenance suit, Mr. Hanes delivered possession of the home to Mrs. Hanes for her life. She thus became a life tenant; and limitations did not commence to run in favor of these appellants until the death of the life tenant. See Cox v. Britt, 22 Ark. 567; Gallagher v. Johnson, 65 Ark. 90, 44 S. W. 1041; and Smith v. Maberry, 148 Ark. 216, 229 S. W. 718.”
Mrs. Lowe under the decree in the divorce case became the owner of a life estate which she conveyed to Pierce. The remainderman has no right of entry until the death of the life tenant; therefore possession cannot be adverse to the remainderman during the lifetime of Mrs. Lowe. Hayden v. Hill, 128 Ark. 342, 194 S. W. 19; Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809.
Reversed. | [
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Wood, J.
Appellees, who were creditors of the firm of Bartlett & Durham, brought this suit to set aside the provisions of a general assignment made by said firm for the benefit of creditors, with preferences. The court found ‘‘that the preferred debt of Mary A. Bartlett was an individual debt of E. C. Bartlett, one of the partners, and that the property assigned was partnership property.” This finding is correct. The legal question therefore is, can an insolvent firm, in a general assignment for the benefit of creditors, provide for the payment, out of the firm assets, of creditors of the individual members of the firm, in preference to creditors of the firm?
1. When one makes an assignment for the benefit of creditors, he brings the assets included therein under the control of a court of chancery. If the assignment is valid, the court must administer the assets, through the assignee, accord ing to its provisions. If, for any cause, the assignment be void, then the property embraced therein is administered for the benefit of all the creditors pro rata, as under the provisions of a general assignment without preferences. Acts of 1895, p. 162. Therefore, if the provisions of the assignment contravene well established principles of equity, a court of chancery will not enforce them, but will proceed to dispose of and distribute the property for the benefit of all the creditors, pro rata, who in equity are justly entitled to same.
“It was,” says Judge Kent, “a principle of the Roman law, and it has been acknowledged in the equity jurisprudence of Spain, England and the United States, that partnership debts must be paid out of the partnership estate, and private and separate debts out of the private and separate estate of the individual partner.” “The basis of the general rule is that the funds are to be liable on which the credit is given.” 3 Kent, Comm. * 65.
In Bulger v. Rosa, 119 N. Y. 465, the court say: “There can be no controversy as to the rule of law governing the relations between an insolvent firm and its creditors and their mutual rights in respect of the firm property. The partnership, as such, has its own property and its own creditors, as distinct from the individual property of its members and their individual creditors. The firm creditors are preferentially entitled to be paid out of the firm assets. Whatever may be the true foundation of the equity, it is now an undisputed element in the security of the firm creditors.”
In Hollins v. Brierfield Coal & Iron Company, 150 U. S. 385, the court, through Judge Brewer, said: “Whenever, a partnership becoming insolvent, a court of equity takes possession of its property, it recognizes the fact that in equity the partnership creditors have a right to payment out of the funds in preference ■ to individual creditors, as well as superior to any claims of the partners themselves.” This is an old and firmly established doctrine of equity, recognized generally in the works on Partnership and Equity Jurisprudence, and in the adjudications of many courts. Story, Part. § 376; Pars. Part. § 246, 382, et seq.; Collyer, Part. § 920; Smith, Prin. Eq. § 547 (2); 2 Lindley, Part. § 692; 2 Bates, Part. § 825; 2 Pom. Eq. Jur. § 1046; Story, Eq. Jur. §§ 1207, 1253; 2 Beach, Mod. Eq. Jur. 788; Bisp. Eq. Prin. § 515; Inbusch v. Farwell, 1 Black (U. S.), 566; Murrill v. Neill, 8 How. 414; Crooker v. Crooker, 52 Me. 267; Treadwell v. Brown, 41 N. H. 12; Fall River Whaling Co. v. Borden, 10 Cush. 458; Hill v. Beach, 12 N. J. Eq. 31; Simmons v. Tongue, 3 Bland, 356; Converse v. McKee, 14 Tex. 20; Murray v. Murray, 5 Johns. Ch. 72 et seq.; McCulloh v. Dashiell, 1 Har. & G. 99; Giovanni v. Bank, 55 Ala. 310; Davis v. Howell, 33 N. J. Eq. 72; Ex parte Crowder, 2 Vernon, 706; Ex parte Cook, 2 P. Wms. 500; Ex parte Hunter, 1 Atk. 223, 327, 328; Ex parte Elton, 3 Vesey, 242, note; Bishop, Insolv. Debt. § 167.
It would unnecessarily incumber this opinion to trace the history and reason of this doctrine of equity from its origin, through various fluctuations, and to its final establishment in England, whence it came to this country. This has been exhaustively and ably done in Murray v. Murray, McCulloh v. Dashiell, and Murrill v. Neill, supra, and in a learned note beginning on star page 265 of vol. 3 Kent’s Com., to which we refer any who may have the interest, curiosity and patience to pursue the subject. It is enough for us to know that the rule exists, and that, upon the whole, it is reasonable, convenient, and just. But it is contended that the rule cannot be enforced here, for the reason that the equities of the individual members of the firm, whence this equity of the firm creditors is derived, has been extinguished by the assignment, to which each member of the firm assented; and the following cases are cited to support this contention: Jones v. Fletcher, 42 Ark. 423; Feucht v. Evans, 52 Ark. 556; Reynolds v. Johnson, 54 Ark. 449; Hudgins v. Rix, 60 Ark. 18.
We are aware that the court is committed to the doctrine, announced in some of these cases, that the equity of partnership creditors can only be worked out through the equity of the partners. But we have never held that the equity of the partners, and hence the derivative equity of firm creditors, was or could be extinguished by an assignment made by an insolvent firm for the benefit of creditors. In none of the above cases was an assignment for the benefit of creditors involved. That makes the difference, and it is marked. Case v. Beaure gard, 99 U. S. 119, quoted from and cited as a leading case in the Arkansas decisions, supra, is strong authority for the position that the equity of firm creditors would be enforced in case of an assignment; for, says the court in that case, speaking of of the enforcement of this equity: “It is indispensable, however, to such relief, when the creditors are, as in the present case, simple contract creditors, that the partnership property should be within the control of the court, and in the course of administration, brought there by the bankruptcy of the firm or Toy an assignment, or by the creation of a trust in some mode,”— precisely what has been done in this case. In Giovanni v. Bank, 55 Ala. at p. 310, it is said: “When the partnership property is drawn within the jurisdiction of a court of equity, that court regards it as a trust fund for the payment of partnership debts, and subrogates the partnership creditors to the rights of the partners inter sese." “Courts regard partnership property, after an insolvency or dissolution of the firm, and in the proceeding for winding up its affairs, as a trust fund for the benefit of the firm creditors.” 2 Pom. Eq. Jur. § 1046, and authorities cited.
Under our statute a general assignment by a firm for the benefit of creditors, although its provisions as to preferences cannot be enforced, nevertheless operates as a winding up of the partnership business, and is, in effect, a dissolution of the partnership, and a calling upon the chancery court to administer its assets according to equitable rules. 2 Bates; Part. § 483; Allen v. Woonsocket Co., 11 R. I. 288; Simmons v. Curtis, 41 Me. 373; Wells v. Ellis, 68 Cal. 243; McKelvy’s Appeal, 72 Pa. St. 409. Such a conveyance neither creates nor destroys equities. These are left as they were when the assignment was made. The very fact of the assignment is a declaration by the firm that its business career has closed, and the law is invoked to wind up its affairs. Before, the firm has been acting for itself. Now, what it does is for the benefit of creditors, and it is not authorized, as a firm, to benefit any but its own creditors. The above is the rule which a court of equity would enforce in an assignment for the benefit of creditors, simply because it is a rule of equity, and regardless of any actual or intentional fraud.
2. But such an assignment as this must be held as actually and intentionally fraudulent. It contravenes our statute concerning fraudulent conveyances. Sand. & H. Dig., §§ 3471-2. It purports to be an assignment by a firm for tbe benefit of creditors, but it is in fact an assignment for tbe benefit of one of the individual members of the firm. It directs that the firm assets shall pay the individual debts of one of its members. This is equivalent to a gift to him or his creditor, and is to that extent a -withholding of firm assets for the private benefit of one of its members, and, of course, hinders, delays and defrauds firm creditors. From these facts an intent to defraud creditors will be conclusively presumed. Such is the law in New York and other states where statutes against fraudulent conveyances like our own were modeled after the 13th of Elizabeth. The doctrine has our unqualified approval. Kirby v. Shoonmaker, 3 Barb. Ch. 46; Wilson v. Robertson, 21 N. Y. 592; and other cases cited in Burrill on Assignments, p. 236.
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J. Seaborn Holt, J.
Mary Elizabeth Smith and Lilburne C, Smith were married December 4, 1950, A decree of divorce was granted to Mary Elizabeth in Pulaski County (their residence at the time) January 29, 1952, and also the care and custody of their only child (a little girl) Janet Elizabeth, who was about three and one-half months old. February 14, 1952, Mary Elizabeth and her mother left Gurdon for Arkadelphia (Clark County), in an automobile owned by F. H. Rudolph (Mary Elizabeth’s father) and on the way, another car going in the opposite direction, collided with the Rudolph car, killing Mary Elizabeth and seriously and permanently injuring her mother.
March 25, 1952, on an unverified petition of appellant alleging that Mary Elizabeth, at the time of her death, was a resident of Pulaski County, the Pulaski Probate Court appointed appellant administrator of her estate and at the same time approved a contract of employment entered into between appellant and his attorneys. Thereafter, on April 4, 1952, appellee, F. H. Rudolph, in a verified petition, applied for letters of administration in the Clark Probate Court on the estate of his daughter, Mary Elizabeth, alleging that, at the time of her death, she was a resident of Gurdon in Clark County. The Clark Probate Court granted his petition and appointed him administrator.
April 9, 1952, appellee, F. H. Rudolph, intervened in the Pulaski Probate Court proceedings asking that the order above appointing appellant, Lilburne C. Smith, administrator, be vacated and set aside for the reason that, at the time of her death, Mary Elizabeth was a resident of Gurdon, Clark County, and that the Pulaski Probate Court was without jurisdiction.
Upon a hearing, the Pulaski Probate Court held that at the time of Mary Elizabeth’s death, she was not a resident of Pulaski County, but in fact a resident of Clark County and that the Pulaski Probate Court was without jurisdiction to appoint appellant administrator. Accordingly, the Court voided its previous order of March 25, 1952, and also voided the attorneys’ contract. This appeal followed.
As we view this record, the primary and decisive question presented is that of jurisdiction, which depends on the residence of Mary Elizabeth at the time of her death.
Section 62-2102, Ark. Stats. 1947, a. (1) provides: “The venue . . . for administration shall be: (1) In the county in this state where the decedent resided at the time of his death.” Therefore, if Mary Elizabeth were in fact a resident of Clark County at the time of her death, then the administrator of her estate must be appointed in Clark County. The probate court of any other county would have no jurisdiction other than ancillary. The above provision of the statute is mandatory. Shelton v. Shelton, 180 Ark. 959, 23 S. W. 2d 629, and Watson v. Lester, 182 Ark. 386, 31 S. W. 2d 955.
Here, the Pulaski Probate Court, on a direct attack by appellee (Rudolph) on its jurisdiction, found that Mary Elizabeth was a resident of Clark County at the time of her death and that the Clark Probate Court was the only court having jurisdiction.
We have concluded that the preponderance of the testimony is not against the court’s finding and judgment.
The evidence shows that at the time that Mary Elizabeth procured her divorce decree, her father sent a truck to Little Rock for her possessions and a car for her. She immediately removed everything she possessed to her father’s home in Grurdon, where she lived until her death. Mary Elizabeth’s aunt, Miss Edna Rudolph, testified that when Mary Elizabeth left Little Rock she told her she was going to reside with her parents. Mrs. Bates of Morrilton testified Mary Elizabeth told her in a letter that she was going to live with her parents. Mrs. Keyes of Grurdon, a former schoolmate of Mary Elizabeth, and Mrs. Jean H. Rudolph, an aunt, tended to corroborate the above testimony. Mary Elizabeth’s Income Tax Return, filed January 21, 1952, gave her home address as “c/o F. H. Rudolph, Grurdon, Arkansas.” In an application for “Federal Employment” about January 17, 1952, Mary Elizabeth gave her address as “care of F. H. Rudolph, G-urdon, Arkansas,” and expressed her desire for employment at “Camp Chaffee, Arkansas.” She gave as a reason for wanting employment “necessary to support self and daughter,” and in answer to the question: “If you will accept appointment in certain locations only, give acceptable locations, ’ ’ she wrote: “In State of Arkansas outside Pulaski County.”
Residence being a matter of intention, we hold, as indicated, that the preponderance of the. testimony is not against the court’s finding that Mary Elizabeth was a resident of Clark County at the time of her death.
But, says appellant, F. H. Rudolph, Mary Elizabeth’s father was a disinterested party and disqualified to act as administrator of his daughter’s estate. We do not agree. Section 62-2201, Ark. Stats. 1947, a. enumerates all persons qualified to serve as an administrator under four subdivisions, No. (4) providing: “To any other qualified person.” Div. b. enumerates in six subdivisions: “All persons who are disqualified to serve” and appellee, we hold, does not fall within any of the disqualifications. We hold that appellee here, in the circumstances, is qualified to serve as administrator in the Clark Probate Court under a. (4) above. It follows, therefore, that, as a legally appointed administrator, it is his duty, in his official capacity, to assemble all assets of his daughter’s estate, institute any and all litigation for the benefit of such estate, and administer thereon as the law directs.
Affirmed.
Justice George Rose Smith not participating. | [
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George Rose Smith, J.
This is a suit by the appellants, three taxpayers, to enjoin the Board of Election Commissioners of St. Francis County from holding- an election to determine whether horse racing is to be permitted in the county. The statute provides that such an election may be called upon the petition of 15% of the qualified electors in the county. Ark. Stats. 1947, § 84-2721. Here the complaint attacks the sufficiency of the petition, upon the ground that the names of 159 specified persons were placed on the petition by someone other than the persons themselves. It is further alleged that unless restrained the Board will unlawfully call the election and that the expense thereof will be paid with public funds, constituting an illegal exaction within Article 16, § 13, of the constitution. In the court below the St. Francis Yalley Turf Association, Inc., intervened and demurred to the complaint. The chancellor sustained the demurrer and dismissed the suit.
We think the demurrer should have been overruled, for the complaint states a cause of action. The statute requires that fifteen per cent of the voters petition for an election of this kind. The demurrer admits the insufficiency of the petition in this case. This being true, the election has not been properly called and should not be conducted at public expense.
It is argued, however, that the plaintiffs’ remedy is against the county clerk, under the Initiative and Referendum Amendment and its enabling legislation. Amendment No. 7; Ark. Stats., § 2-310. There is nothing in this contention. This proposed election is to be held not under the power of initiative or referendum but under the au thority of the statute regulating horse racing, Act 46 of 1935. With respect to similar statutory elections, such as local option elections under the liquor law, the governing procedure is that provided by the statute rather than that contained in Amendment, No. 7. Johnston v. Bramlett, 193 Ark. 71, 97 S. W. 2d 631. The horse racing statute does not prescribe the method for testing the validity of the petition and thus leaves the contestants free to select any appropriate procedure.
It is also suggested that the plaintiffs had an adequate remedy at law by asking the circuit court for a writ of certiorari to review the clerk’s or the board’s determination that the petition is sufficient. The adequacy of the legal remedy is immaterial, however, when a taxpayer seeks protection against an illegal exaction; for the constitution itself confers the right to injunctive relief. For example a statute which attempts to abolish the remedy by injunction and to substitute a remedy at law is unconstitutional. McCarroll v. Gregory-Robinson-Speas, Inc., 198 Ark. 235, 129 S. W. 2d 254, 122 A. L. R. 977; see also Samples v. Grady, 207 Ark. 724, 182 S. W. 2d 875.
Beversed, with directions that the demurrer be overruled. .The mandate will issue immediately. | [
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Robinson, Justice.
This is a suit on a policy of automobile collision insurance. There was a judgment in favor of the policyholder, and the insurance company has appealed.
On April 3, 1950, the appellant, insurance company, issued its policy of collision insurance to appellees on a G-. M. C. truck. The policy provided a $5,000 limit of liability with a $250 deductible clause. About a year later, while the policy was in full force and effect, the vehicle was involved in a collision and it was considerably damaged. The cause was submitted to the court, sitting as a jury, and there was a judgment for the policyholder in the principal sum of $3,800 and interest, a twelve per cent penalty was added, as provided by statute, and $750 was assessed as attorney’s fee.
Appellant urges for reversal: that appellees breached the contract by placing a mortgage on the property; that the trial court erred in its refusal to permit appellant to amend the answer to allege the policy was void because appellees used the truck as a public or livery conveyance; that appellees refused to allow the truck to be repaired; that appellees could not recover more than the lowest estimate to repair the truck and that the judgment here is in excess of that amount; and that the judgment is excessive and no attorney’s fee or penalty should be allowed.
The policy provides: “This policy does not apply: (a) under any of the coverages, while the automobile is used as a public or livery conveyance, unless such use is specifically declared and described in this policy and premium charged therefor; (b) under any of the coverages, while the automobile is subject to any bailment lease, conditional sale, mortgage or other encumbrances not specifically declared and described in this policy;
Appellees were engaged in hauling produce. The evidence shows that in September, 1950, they planned to go to California for the purpose of hauling tomatoes. Since there was a possibility that they might encounter some difficulty on such a long distance trip and would be in need of additional funds, they made arrangements with a Mr. Howard Halley, whereby they gave him a mortgage on the truck to secure án indebtedness of $3,500. No money was actually received by them at that time nor at any other time. The plan was to give the mortgage so that they would be in a position to obtain the money from Mr. Halley if and when it was needed. It was never needed and therefore never obtained.
In the early part of April, 1951, the track was damaged. Appellant claims that the policy was rendered void because of the giving of the mortgage. But the provision of the policy relied on by appellant does not say the policy is void in the event a mortgage is given. It merely provides that the policy does not apply while the automobile is subject to a mortgage. It cannot be said here that the truck was subject to any mortgage at the time it was damaged. It is true that Mr. Halley held what purported to be a mortgage; but he had given no consideration for such, the appellees did not owe him a dime on any mortgage, and he held no enforceable obligation. Before it can be said that the truck was subject to a mortgage, someone would have to hold a mortgage that could be enforced. Mr. Halley could not enforce such an instrument when nothing had been paid as consideration for the note secured by the mortgage. In Lavender v. Buhrman-Pharr Hardware Company, 177 Ark. 656, 7 S. W. 2d 755, it was said: “Certainly the loan company could not collect the note given for the loan nor foreclose the mortgage given to secure the payment thereof, when it had never in fact made such loan by delivering the money to the makers of the note and mortgage. ’ ’
Appellant cites Rhea v. Planters’ Mutual Insurance Association, 77 Ark. 57, 90 S. W. 850, but in that case the policy provided that if the property should become encumbered by a mortgage, or if the interest of the owner should become anything less than a perfect legal title, the contract of insurance would be “absolutely null and void.” To the same effect are German-American Insurance Co. v. Humphrey, 62 Ark. 348, 35 S. W. 428, and The Aetna Casualty & Surety Company v. Jaclcson, 203 Ark. 839, 159 S. W. 2d 461. In all those cases the policy provides that it shall be void by reason of the giving of a mortgage. Here the policy does not provide that it shall be void if a mortgage is given; it merely provides that the policy shall not apply while the automobile is subject tó a mortgage, and it cannot be said that the truck involved in this litigation is so encumbered,
Furthermore, even if it could be said that the language of the policy made it void by the execution of what purported to be a mortgage, the insurance company waived such alleged forfeiture by its action in connection with the claim. About two days after the collision, an adjuster who investigated the loss learned from Louis Mize, one of the appellees, the facts about the purported mortgage and notified the appellant, insurance company. Subsequently, the appellant, through its agents, sought permission to take the truck to Tulsa for repairs.
Mize testified that at the request of the insurance company’s agent, he obtained estimates of the cost of repairs from Lewis-Diesel Engine Company, International Harvester Company and Summers-Corbin Garage; that he went to considerable trouble to get these estimates and deliver them to the insurance company’s agent; that practically all of his time during a three-day period was used in securing the estimates and conferring with appellant’s agent; that although the insurance company had knowledge of the mortgage, nothing was said to him about it, and the insurance company made no claim of a forfeiture of the policy because of the mortgage.
In the case of Security State Fire Insurance Co. v. Harris, 220 Ark. 900, 251 S. W. 2d 115, this court said that although a sole ownership clause in a fire insurance policy is valid and voids a contract if the ownership is otherwise, “. . . it is equally well settled that this clause may be waived by the insurer as when it has been informed of the nature of the title (State Mutual Insurance Co. v. Latourette, 71 Ark. 242, 74 S. W. 300), and when it requests proof of loss with knowledge of violation of the sole ownership provision.”
In German Insurance Co. v. Gibson, 53 Ark. 494, 14 S. W. 672, the court said: “An insurance company can take advantage of the breach of any condition contained in its policies and claim a forfeiture, or waive the forfeiture ; ‘ and it may do this by express language to that effect, or by acts from which an intention to waive may be inferred, or from which a waiver follows as a legal result.’ This is an unquestioned right, and the exercise of it is always encouraged by the courts. ’ ’
In Planters’ Mutual Insurance Co. v. Loyd, 67 Ark. 584, 56 S. W. 44, it is stated:“. . . when the insurer, with knowledge of any act on the part of the assured which works a forfeiture, enters into negotiations with him which recognize the continued validity of the policy, and thus induces him to incur expense or trouble under the belief that his loss will be paid, the forfeiture is waived. ’ ’
In Washington County Farmers Mutual Fire Insurance Company v. Reed, 218 Ark. 522, 237 S. W. 2d 888, this court quoted with approval from National Surety Company of New York v. Fox, 174 Ark. 827, 296 S. W. 718, 54 A. L. R. 458: “Forfeitures are not favored in law, and any agreement, declaration or course of action on the part of an insurance company which leads the insured honestly to believe that by conforming thereto, a forfeiture of his policy will not be incurred, followed by conformity on his part will estop the insurance company from insisting upon forfeiture. ”
After appellees made the trip to California they made one or more trips with the truck to some other State hauling produce for hire. At the trial when this fact was brought out, appellant asked permission to amend the answer and deny liability because of the provision in the policy that it did not apply while the automobile was in use as a public or livery conveyance. The court properly denied the motion that the defendant be permitted to amend its answer since there was no evidence in the record to the effect that the truck was being used in such manner at the time of the collision; and the fact that the truck had been used to haul for hire several months prior to the collision would not be material.
In Globe & Rutgers Fire Insurance Company v. Pruitt, 188 Ark. 92, 64 S. W. 2d 91, this court quoted and approved the following statement of the law from North River Insurance Company of New York v. Lloyd, 180 Ark. 1030, 23 S. W. 2d 988: “The general rule to be deduced from the weight of authority is that the violation of a condition in a policy of insurance, which works a forfeiture thereof, merely suspends the insurance during the violation, and that, if such violation is discontinued during the life of the policy, and is nonexistent at the time of loss, the policy revives, the insurance is restored, and the insurer is liable, although he has never consented to a violation of the conditions in the policy, and such violation has been such that the insurer could, had he known of it at the time, have declared a forfeiture thereof.”
The next assignment of error alleged by appellant is that the policy gives the insurer the right to- repair the truck, that it had offered to make such repairs and appellees had refused to permit same to be made, and, as a result of such refusal, the insurance company is relieved of liability. The policy provides: ‘ ‘ The company may pay for the loss in money or may repair or replace the automobile.” Several estimates were made of the cost of repairing the truck. The Lewis-Diesel Engine- Company of North Little Rock submitted an estimate of $4,219.07, the International Harvester Company of North Little Rock submitted an estimate of $4,910.34, the Summers-Corbin Garage of Little Rock submitted an estimate of $2,395.95, and the Southwestern Auto of Tulsa, Oklahoma, submitted an estimate of $1,849.61.- The insurance company offered to have the truck repaired by the Tulsa concern. This offer was refused by appellees, and the insurance company made no offer to have the truck repaired elsewhere.
Although a policy may not • designate the time in which the option to repair must be exercised, the courts have held a reasonable time prevails. “Such option, where no other time is stated in the policy, must be exercised within a reasonable time, which will depend in any instance upon the circumstances of the particular case.” Blashfield Encyclopedia of Automobile Law and Practice, Volume 6, Section 3819. “Where no time is fixed by the policy for the exercise of the insurer of its option, it must give notice thereof within a reasonable time, and if it does not make its election in apt time, and give the insured notice, the right to rebuild or repair does not exist.” 29 Am. Jur. 945.
We think the same rule should apply as to where the repairs must be made. Obviously, it would not be unreasonable to take a car from Little Rock to North Little Rock for repairs, or perhaps to remove a car to another State, as from West Memphis to Memphis, or from Texarkana, Arkansas, to Texarkana, Texas; but, on the other hand, it could be wholly unreasonable to require that the automobile be taken to a distant point in another State when there are ample facilities locally to make the repairs. Each case of this kind depends on its own particular facts in that respect. There are many reasons why appellees would not want their truck taken to Talsa for repairs, and it is shown that there are reliable concerns in Little Rock equipped to make such repairs. There is substantial evidence to sustain the finding of the trial court, sitting as a jury, that the request to take the truck to Tulsa, Oklahoma, for repairs was unreasonable.
Appellant’s next contention is that the policyholder could not recover more than the lowest estimate to repair the truck. Upon finding that the policyholder was justified in refusing to permit the truck to be taken to Tulsa for repairs, and there was no offer to repair the truck elsewhere, then the measure of damages was, as this court has held many times, the difference in the market value of the vehicle immediately before and after the collision. Kane v. Carper-Dover Mercantile Company, 206 Ark. 674, 177 S. W. 2d 41, and Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14, 3 A. L. R. 2d 593.
Appellant claims that in fixing the damages at $3,800, the court failed to take into consideration the $250 deductible feature of the policy. But the evidence is clear to the effect that if the $250 deductible feature had not been taken into consideration, the judgment would have been for $4,050. Hence, the court was not in error in allowing the twelve per cent penally and reasonable attorney’s fee.
Finding no error, the judgment is affirmed. | [
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Griffin Smith, Chief Justice.
The information charged murder in the first degree and the defendant admitted she killed Robert Coleman by stabbing him with a butcher knife. In the application for bail the‘only witness was Joe W. McCoy, the prosecuting attorney. The defendant had told McCoy how the killing occurred, but claimed self-defense, and McCoy as a witness called by the accused undertook to repeat in substance what Annie Mae had said. It was the trial court’s view that a jury could find that the ingredients of first degree murder were present, hence bail was denied. In an application to review by certiorari counsel for the defendant contends that the state’s testimony did not meet the test of Art. 2, § 8, of the Constitution which prohibits bail in capital cases where the proof is evident or the presumption great.
In an application for bail the trial court’s determination will not be disturbed unless there was an abuse of discretion. Parnell v. State, 206 Ark. 652,176 S. W. 2d 902.
When, as here, the homicide is admitted, and the information charges first degree murder, the burden is .on the defendant to offer testimony showing that the proof is not evident or the presumption great. In short, the official accusation is sufficient to- justify the sheriff or other custodian of the prisoner to retain that custody until by court order a status consonant with the intent of the constitutional provision is established.
In the case at bar the petitioner-defendant sought to bring herself within the exception by compelling the prosecuting attorney to repeat what she had told him. The court had a right to consider the credibility of what the defendant was alleged to have told the prosecuting attorney, and to regard as self-serving any portion of the testimony excusing the homicide. We are therefore unable to say that judicial discretion was abused.
A per curiam order was made September 29th overruling the petition’s prayer for bail, and this opinion will be treated as having been concurred in as of that date. | [
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Wood, J.
Appellee, who was a physician and surgeon, sued appellant for $300, the alleged value of professional services rendered by him to one Brown, an employee of appellant. Appellee alleges that appellant, for a valuable consideration, entered into a contract with Brown, whereby it was to furnish him medical attendance in case of an accidental injury while engaged in appellant’s business. That part of the contract which appellee claims was for his benefit, and upon which he bases his right to recover, is as follows: “This is to certify that we are insured in a large and reliable insurance company against accidents resulting in bodily injury or death to J. It. Brown and other employees, so that we can agree that the above-named employee shall' receive from us, in case of an accident received by him when actively engaged in our business, the following: (l) In case of an accidental injury a sum not exceeding,” etc., * * * “and furnish medical attendance.” The answer denied liability.
The court found the following facts, so far as may be necessary to set them out, to-wit: “That the defendant company entered into a contract by which it, in case of accident, while in its employment, to one Brown, its employee, would, among other things, furnish him a physician; that on the 14th day” of September, 1892, and while said contract was in force, said Brown was injured while in defendant's employment; that the plaintiff, a physician, was as such called in by Brown, and waited on him, and rendered him the service sued for, extending from September 16, 1892, to April 1, 1893, to the value of $300; that this employment of plaintiff as physician was known to defendant company, and by it through its officers fully approved.” Appellant asked the court to find as a fact that “there was no agreement made by the Thomas Manufacturing Company with Brown to pay Dr. Prather, or any other physician, for medical attendance upon said Brown,”-which the court refused. And appellant asked the court to declare the following as the law: “A contract entered into upon the terms proposed in the card aforesaid would not inure to the benefit of the plaintiff, and if the court finds that the defendant made, and Brown accepted, the contract there proposed, the plaintiff cannot recover;” which the court refused, holding that “the contract entered into by defendant company, with Brown, and services rendered by plaintiff, with the assent and approval of defendant company, created a liability to plaintiff.” Exceptions to the ruling of the court upon these points present the only question we need consider, to-wit: Was'the contract for appellee’s benefit?
This court long ago ruled, in line with the doctrine which generally obtains in this country, that where a promise is made to one upon a sufficient consideration, for the benefit of another, the beneficiary may sue the promisor for a breach of his promise. Chamblee v. McKenzie, 31 Ark. 155; Talbot v. Wilkins, ib. 411; Hecht v. Caughron, 46 ib. 132. This doctrine operates as an exception to the elementary rule of law that a stranger to a simple contract, from whom no consideration moves, can not sue upon it. National Bank v. Grand Lodge, 98 U. S. 123; Mellen v. Whipple, 1 Gray (Mass.), 317; Greenwood v. Sheldon, 31 Minn. 254. Therefore it should be applied cautiously, and restricted to cases coming clearly within its compass. The following prerequisites for the application of the doctrine were announced by the court of appeals of New York in Vrooman v. Turner, 69 N. Y. 280, viz.: “There must be — First, an intent by the promisee to secure some benefit to the third party; and, second, some privity between the two, — the promisee and the party to be benefited, — and some obligation or duty owing from the former to the latter which would give him a legal or equitable claim to the benefit of the promise, or an equivalent from him personally.”
In Durnherr v. Rau, 135 N. Y. 222, the court say: “It is not sufficient that the performance of the covenant may benefit a third person. It must have been entered into for his benefit, or at least such benefit must be the direct result of performance, and so within the contemplation of the parties.” See, also, American Exch. Bank v. Northern Pac. R. Co., 76 Fed. 130.
“Of course the name of the person to be benefited by the contract need not be given, if he is otherwise sufficiently described or designated. Indeed, he may be one of a class of persons, if the class is sufficiently described or designated.” Burton v. Larkin, 36 Kas. 250.
Applying the foregoing principles to the contract under consideration, it is manifest, from the nature and terms of the contract, that neither the appellee individually, nor any of a class to which he belonged, was intended to be considered as primarily the party in interest. Austin v. Seligman, 18 Fed. 523; Simson v. Brown, 68 N. Y. 355, 361, 362; Wright v. Terry, 23 Fla. 160; Greenwood v. Sheldon, 31 Minn. 254; Washburn v. Investment Co., 38 Pac. 620.
The clause, “we can furnish medical attendance,” was solely for the benefit of Brown, and the purpose of making it upon the part of appellant was doubtless to induce him to enter its service upon terms that would, to it, be advantageous. The most that can be said about it, so far as any physician was concerned, is that, upon the happening of the contingency which it contemplated, — the accidental injury, — the performance of the contract would result incidentally to his benefit. This would not entitle him to sue the company. Chung Kee v. Davidson, 73 Cal. 522.
Moreover, the contract here was “to furnish medical attendance,” not to pay the wages or for- the services of a physician whom' Brown might employ. According to the express terms of the contract, the company did not surrender to Brown the right to bind it by a contract he might make with a physician, or constitute him its agent to employ a physician, and hence the company is .not bound, according to the written contract, for the services of a physician whom Brown employed. But the court found “that this employment of plaintiff as physician was known to defendant company, and by it through its officers fully approved.” This might be sufficient, in a suit brought by Brown against the company to recover of it the sum which he had paid his physician, to estop the company from denying that it had waived its right to furnish its own physician, provided the company knew that the physician was called by Brown in reliance upon his contract for it “to furnish him medical attendance.” But this finding cannot avail appellee, for he is suing upon an express written contract, which, as we have seen, was not for his benefit.
It could not avail him upon any implied contract of the company to pay him for his services to Brown, for other facts show that there was no such contract. Appellee was employed by Brown, and in his testimony he says: “As to looking to any one for payment, of that I cannot say that I looked to any one but Brown. I did not look to the Thomas Manufacturing Company when I first went. I looked to'the Thomas Manufacturing Company in general connection with the other company. . When the people of the Thomas Manufacturing Company intimated to me that the company would pay, I did not feel that I would look to them especially. * * * I would have rendered the services to Brown that I did render regard less of whether the Thomas Manufacturing Company or Brown would have been responsible.”
In Canney v. Railroad Co., 63 Cal. 501, the plaintiff, a physician, was, at the instance and request of certain parties wounded by a railroad accident, attending them, when the president of the railroad company, in the absence of the physician, told the wounded persons to employ whatever physician they chose, and the company would pay the bills. The physician was advised of this, but he testified that he attended the wounded until their recovery in pursuance of the original calling. It was held, in an action against the company upon contract for services performed, that there was no mutuality by contract between them, and no liability attached to the railroad company for the services performed by the plaintiff to the persons who employed them. Note to Austin v. Seligman, 18 Fed. 525.
Ah there could be no recovery by appellee upon the contract sued on, the other questions pass out.
Reversed and dismissed. | [
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Riddick, J.
The appellee, Pryor, rented land from one Hawkins during the years 1889 and 1890. He paid the rent for the year 1889, but failed to pay the rent for the year 1890, and Hawkins, the landlord, sued out a specific attachment against the crop to recover the rent due for the year 1890. This writ came to the hands of appellant as sheriff of Little River county, and was by him levied, not only upon the crop grown by Pryor in 1890, but upon sixty bushels of corn grown in 1889, which had been kept separate from the corn grown in 1890, and upon which the landlord, Hawkins, had no lien. The appellee, Pryor, brought this action of replevin to recover the sixty bushels of corn from the sheriff, alleging in his affidavit that the corn was by statute exempt from seizure under the attachment. His right to bring replevin is denied, and whether that was a proper remedy in this ease is the question we are asked to determine.
Our statute permits one ¿gainst whose property an execution or attachment has been issued to bring replevin to recover property seized under such execution or attachment, if such property is exempt by statute from such seizure. Sand. & II. Dig., § 6384. The purpose of the statute was to afford a speedy remedy by which property thus unlawfully seized and detained can be recovered. It may be that the main object of this statute was to protect residents of the state in their right to hold property which the law expressly exempts from execution and attachments, but it seems to us that the case of the plaintiff here comes also within the language and meaning of the act. Meadow v. Wise, 41 Ark. 285; Little v. Bond, 49 ib. 114; Dunham v. Wyckoff, 20 Am. Dec. 696, and note; Wilson v. Stripe, 61 Am. Dec. 138. This corn was certainly not subject to the attachment under which it was seized. The landlord’s lien act provides that the “landlord shall have a lien upon the crop grown upon the demised premises in any year for rent that shall accrue for such year;” and, under certain circumstances, it authorizes a specific attachment against the crop to enforce the lien. Sand. & II. Dig., §§ 4794, 4802. In giving a lien upon the crop for rent that accrues the year the crop is grown, the statute impliedly exempts all other property of the tenant from such lien, and from the specific attachment by which it is enforced. Without any straining of terms, it can, we think, be said that this corn was by statute exempt from seizure under the writ of attachment held by appellant.
There are strong reasons why the right to bring replevin should be allowed in such a case as this. Tenants of farm lands are not, as a class, opulent, and it is not improbable that the plaintiff in this case had an actual present need for the use of this corn. The landlord had no lien upon it, and the sheriff had no more right to seize it under the specific attachment than he had to take a mule of the tenant or the property of some third person. Meadow v. Wise, 41 Ark. 285.
The taking and detention were both unlawful, and, although there were other remedies open to the tenant, we think that un - der the statute he had the right to bring replevin.
The judgment of the circuit court awarding the property to him is therefore affirmed. | [
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Hughes, J.
The bill in this cause was filed in the circuit court of Cross county to foreclose a trust deed executed by the appellees to Sherwood, as trustee, to secure their three notes, payable to appellants, the American Land-Mortgage Freehold Company, Limited, as follows: One note for $166, due December 26, 1886; one note for $166, due December 26, 1887; one note for $168, due December 26, 1888. Attached to the last-mentioned note was an interest coupon for $13.31, due at the same time with the note, to-wit: December 26, 1888. All of said notes and the trust deed were executed on the 26th day of December, 1883. The bill was filed December 22, 1893. The trust deed and notes were filed as exhibits to the bill.
The defendants by their answer set up three defenses: (1) Usury; (2) the statute of limitation of five years; (3) that the complainant, the Freehold Company, was a foreign corpora tion, and had not complied with section 11, article 12, of the constitution of the state of Arkansas, providing that foreign corporations shall do no business in this state except while it maintains therein one or more known places of business, and an authorized agent or agents, in the same, upon whom process may be served.
The testimony adduced by the defendants failed to establish the first defense.
As to the second defense, to-wit, the statute of limitations of five years, it is conceded that the bar had attached as to the two notes for $166 each, one due December 26, 1886, and the other due December 26, 1887.
As to the third and last note, to-wit: the one for $168, due December 26, 1888, and the interest coupon for $13.31, due on the same date, the bar had not attached, as the five years from the maturity of the note and coupon last referred to did not expire until four days after the bill was filed. Defendants claim, however, in their answer, that, even as to this last note, the statute of limitations is a good defense, because, under the terms of the trust deed, the plaintiffs had a right of action upon all of said notes upon the failure of the defendants to pay the one maturing in 1886, at maturity. We think it clear, however, that this contention cannot be ■ maintained. The language of the trust deed is that, “should said first parties fail to pay any of said money hereby secured, either principal or interest, when the same becomes due, or to conform to, or to comply with, any of the foregoing conditions or agreements, the principal sum of money hereby secured may, without notice to said first party, at the option of the said third party (the Freehold Company) or his assigns, and at his option only, be declared due and payable at once,” etc. In the absence of proof to show the appellant company had exercised this option, it will not be seriously contended in this court that the statute of limitations began to run before the maturity of the notes, according to their tenor. It has been expressly held that, even where a mortgage provides that, in default in payment of interest, the whole sum of principal and interest shall become due, and the mortgage may be foreclosed, limitations begin to run when the note matures according to its terms, and not on default in payment of interest. Mason v. Luce, 116 Cal. 232; Richards v. Daley, ib. 336.
The third defense, that the Freehold Company is a foreign corporation, and had not complied with section 11 of article 12 of the constitution, is disposed of by the opinion of the court in the case of St. Louis, Arkansas & Texas Railway Company v. Fire Association of Philadelphia, 60 Ark. Rep. 325. In'regard to that section of the constitution, Mr. Justice Battle, delivering the opinion of the court, says: “It is not self-executing. It does not provide how the agent shall be designated, or how the place of business 'shall be made known. The Commercial Company had no right to say upon what agent process may be served. The legislature alone had the right. Until it exercised it,"there was no penalty for the violation of the constitution in that respect.” 60 Ark. Rep. 325. The notes and trust deed in this case were given in December, 1883, and the act of the legislature carrying into effect the constitutional provision under consideration was not passed until April 4, 1887. The appellant company very promptly complied with the requirement of'this act.
In regard to the question of usury, the evidence shows that the appellee employed T. E. Hare as his agent, and agreed to pay him a commission of twenty per cent., or one hundred dollars, to procure the .loan for him, and that Hare was not the agent of the company, and that it knew nothing of the contract between Hare and the appellee. It follows, therefore, that the fact that the appellee, without the knowledge of the company, agreed to pay his agent, Hare, for services rendered him, a sum as commission, which, added to the interest, would have made the loan usurious, had the company authorized or knowingly permitted it, if Hare had been its agent, would not make the loan usurious. Banks v. Flint, 54 Ark. 40; May v. Flint, 54 Ark. 573; Sherwood v. Haney, 63 Ark. 249.
The decree as to the two notes for $166 each, due respectively December 26, 1886, and December 26, 1887, is affirmed. But as to the note for $168, due December 26, 1888, and the interest coupon thereto for $13.31, due the same date, the decree is reversed, and the cause is remanded, with directions to foreclose the deed in trust for the amount of the note and coupon last mentioned. | [
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J. Seaborn Holt, J.
Appellee, Williams, sued to recover $200 damages to a four year old Hereford bull for injuries alleged to bave resulted when he was struck by one of appellant’s freight trains August 21, 1950, and also for damages in the amount of $165 for a cow alleged to have been killed by another one of appellant’s freight trains on December 24, 1950. Both animals were struck at night.
There was a jury verdict for appellee for the full amount sought in each case and from the judgment is this appeal.
Appellant conceded that “the appellee presented evidence that justified an inference that his livestock was killed or wounded by tbe running of trains and that the presumption of negligence arose, ’ ’ (Ark. Stats. 1947, § 73-1001).
We said in St. Louis Southwestern Railway Company v. Vaughan, 180 Ark. 559, 21 S. W. 2d 971: “When the evidence shows that an injury was caused by the operation of a train, the presumption is that the company operating the train was guilty of negligence, and the burden is upon such company to prove that it was not guilty of negligence. Appellant is correct in its statement that this presumption can be rebutted and overcome by testimony on the part of the defendant. The only question in this case is, did the appellant overcome this presumption by evidence? The Supreme Court of the United States recently said, in construing a statute similar to the Arkansas statute: ‘The only legal effect of this inference is to cast upon the railroad company the duty of producing some evidence to the contrary. When that is done, the inference is at an end, and the question of negligence is one for jury upon all the evidence’,” and in St. Louis-San Francisco Ry. Company v. Call, 197 Ark. 225, 122 S. W. 2d 178, we said: “The killing of and injury to the property being admitted the law presumes appellants were negligent and the burden rested upon them to show that they were not negligent. . . . They have not met the burden by the undisputed evidence.” See also St. Louis, I. M. & So. Railway Company v. Chambliss, 54 Ark. 214, 15 S. W. 469.
The evidence when considered in its most favorable light in appellee’s favor, as we must do, tends to show that the point where the bull was injured and also the place where the cow was killed (neither being at a crossing) were on a straight stretch of track — for more than a mile. The bull was struck on the night of August 21, 1950, seriously injured, and its usefulness impaired. Appellant’s engineer testified that he was operating the Diesel engine of the train and “I did not see any stock on the track. I saw a cow’s head sticking out of the brush about six or eight feet out from the track.” The cow (bull) was on the right side of the track — track was straight — and he was “about 250 ft. away” when he saw him. His headlight was burning and in good condition and “so far as I could see” no part of the engine struck the bull. He denied that he had told appellee, Williams, that he hit a cow or’ bull, however, Williams testified that he did. There appears to be no evidence that any warning signals were given or that brakes were applied after the bull was first seen.
Appellee testified that he found tracks of the bull where he had crossed the railroad track and that he found the bull lying by the side of the track about 20 ft. “from the rail at the bottom of the dump * * *. The right of way had grown up in saplings three or four foot and he went down through them — they were knocked down. ’ ’
As to the cow, there was evidence on the part of appellant that when first seen by the engineer, she was about 225 ft. away and about 45 ft. from the left of the track, that she “threw up its head — you don’t know which way they are going to go — and she went across the track and the engine went by.” He blew the whistle, could not stop the train in time, was going about 25 miles per hour. “Q. You made no effort to put the brakes on? A. No, sir, I did shut the throttle off. Q. When did you first see the cow? A. She rolled out on my side, but the fireman saw her.”
When all of the evidence is considered, we are unable to say that there was no substantial evidence on which the verdict could be based. Whether in the circumstances, the failure of the operators of the train to give any warning signals and apply the brakes in the case of the bull after discovering him and their failure to apply the brakes after discovery of the cow, amounted to negligence on the part of the railroad, were issues for the jury, and upon which reasonable minds might differ or draw different conclusions, and therefore we must allow the verdict to stand.
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Ed. F. McFaddin, Justice.
This is a suit between rival title claimants for a tract of 360 acres in Miller County. The appellant (defendant below) claims under a State tax title; and the appellee (plaintiff below) claims under an Improvement District foreclosure title — • i. e., from Miller Levee District No. 2, and also Drainage District No. 6 of Miller County. The Chancery Court held the Improvement District title to be superior, and from that decree appellant brings this appeal.
Appellant claims his title as follows:
(a) that the land forfeited to the State on November 2,1936, for the taxes of 1935;
(b) that the State tax title was confirmed on September 25, 1939, pursuant to Act No. 119 of 1935 (see § 84-1315, et seq., Ark. Stats.);
(c) that the State issued its deed to John N. "Watkins, as purchaser of the State’s title on February 11, 1942; and
(d) that appellant, Terry, claims by mesne conveyance from Watkins.
Appellee claims his title as follows:
(a) that on October 26, 1933, Miller Levee District No. 2 obtained foreclosure decree for the delinquent benefits due the District in 1931;
(b) that the land was sold to the District under said decree on September 8, 1934, the sale being approved on September 18, 1934;
(c) that the title remained in the District, thereafter, until 1945;
(d) that on October 6,1945, the Miller Levee District conveyed the land to appellee, Starks; and
(e) that on October 8, 1945, the Drainage District No. 6 conveyed the land to appellee, Starks.
The land has been used for pasture purposes; and even though both parties claim pedal possession, the evidence shows that neither party has had possession of such character and continuity as to be entitled to prevail under the 7-year statute (see § 37-101, Ark. Stats.), so this is a suit to determine whether the State tax title or the Improvement District foreclosure title is the superior.
We have some Legislative enactments, and also several cases bearing more or less directly on the questions here at issue. Some such are Act No. 329 of 1939, now found in § 20-1146, Ark. Stats.; Watson v. Anderson, 201 Ark. 809, 147 S. W. 2d 28; Central Clay Dist. v. Raborn, 203 Ark. 465, 157 S. W. 2d 505; Spikes v. Beloate, 206 Ark. 344, 175 S. W. 2d 579; Terry v. Drainage Dist., 206 Ark. 940, 178 S. W. 2d 857; Duncan v. Board of Directors of Newport Levee District, 206 Ark. 1130, 178 S. W. 2d 660; Denision v. Burroughs, 209 Ark. 436, 190 S. W. 2d 623; Hubble v. Grimes, 211 Ark. 49, 199 S. W. 2d 313; and Rouse v. Teeter, 214 Ark. 488, 216 S. W. 2d 869.
The appellant, Terry, emphasizes : that the land forfeited to the State for the 1931 taxes and so remained until October 8,1935, when E. E. Scott redeemed the land; and that when Scott redeemed the land for the 1931 taxes, he necessarily did not pay the State and County taxes for 1935, because they were not due until 1936. Therefore, appellant says:' that the 1935 taxes became delinquent and the land was forfeited to the State on November 2, 1936; that the State had the 1935 sale confirmed by decree of September 25, 1939, under Act No. 119 of 1935; and that the State conveyed to Watkins on February 11,1942, a title that had been confirmed for the 1935 taxes.
But here is the answer to the appellant’s argument: when Scott redeemed on October 8, 1935, the Improvement Districts had already completed their foreclosure proceedings — -the Levee District sale was on September 8, 1934, and the Drainage District sale was on October 19, 1934. These Improvement Districts purchased the land before the State’s lien for 1935 taxes could have become legally affixed, because, at that time, the lien for 1935 taxes would affix on the first Monday in June, 1935.° When Scott redeemed from the State on October 8, 1935, such redemption constituted payment of all taxes prior to 1935, and allowed the Improvement District sales of 1934 to antedate by several months the State tax lien, which could not affix until the first Monday in June, 1935. Act No. 329 of 1939, now found in § 20-1146, et seq., Ark. Stats., has been held to be both retroactive and curative, and provides that an Improvement District can foreclose while the title is in the State, so the Improvement District sales were valid. Furthermore, our cases hold that when an Improvement District purchases property at its own foreclosure sale, the State cannot tax the property until the Improvement District parts with title. In Lyle v. Sternberg, 204 Ark. 466, 163 S. W. 2d 147, we said:
“This court has ruled that when a drainage or improvement district acquires title to lands before the lien for state and county taxes becomes fixed, they are exempt from taxation or assessment for state and county taxes as long as the lands remain the property of said district as during that time they are held by the drainage or improvement district as a governmental agency and for governmental purposes. This rule is sustained by the cases of Miller v. Henry, 105 Ark. 261, 150 S. W. 700, Ann. Cas. 1914D, 754; Robinson v. Ind.-Ark. Lbr. Co., 128 Ark. 550, 194 S. W. 870, 3 A. L. R. 1426; Crowe v. Wells River Savings Bank, 182 Ark. 672, 32 S. W. 2d 617; and Little Red River Dr. Dist. No. 2 v. Moore, 197 Ark. 945, 126 S. W. 2d 605. Under the rule thus announced the lands were not subject to be assessed for state and county taxes for the year 1928 and were erroneously forfeited and sold to the State and appellant acquired nothing from the State under her deed of date January 23, 1939.”
Thus the State could not legally tax the land for the 1935 taxes because the title was then in the Improvement Districts, by virtue of the 1934 sales; and with the “power to sell” defeated, the 1939 confirmation (under Act No. 119 of 1935) was of no force. See Lumsden v. Erstine, 205 Ark. 1004, 172 S. W. 2d 409, 147 A. L. R. 1132.
As regards delinquent State taxes and delinquent Improvement District benefits on the same land, the rela tive rights of the State and the Improvement District are not reciprocal because:
(a) by Statute (§ 20-1146, Ark. Stats.) an Improvement District can maintain and consummate its foreclosure proceedings and purchase the land even while it is forfeited to the State for prior State taxes;
(b) but, on the other hand, if the Improvement District purchases the land at a foreclosure sale prior to the date the State tax lien affixes, then the land is in effect owned by the public and is not subject to State taxes until the Improvement District parts with title.
Therefore, the Chancery decree was correct; because when Scott redeemed from the 1931 tax forfeiture, such redemption gave time priority to the Improvement District foreclosure sales which placed the title of the property in the Districts, and such priority prevented the State from taxing the lands for 1935.
Affirmed.
Miller Levee Dist. No. 2 was created by Act 69 of the General Assembly of 1911; and that Act was amended by Act No. 71 of 1913, Act No. 25 of 1917, and Act No. 123 of 1921. *
Drainage District No. 6 was created under the General Drainage District Law of the State,
Terry, as defendant, was joined by his wife and some mineral holders as co-parties, but for convenience, we refer to the case as though Terry were the sole party.
Likewise, Drainage District No. 6 foreclosed its delinquent 1931 benefits, obtained a decree on September 17, 1934, purchased at the Commissioner’s sale on October 19, 1934, and the sale was approved on November 22, 1934. There were foreclosures by the two Improvement Districts in succeeding years, but appellee’s title originates from the said sales for the 1931 delinquencies.
In Gailey v. Ricketts, 123 Ark. 18, 184 S. W. 422, we held that when a sale was confirmed the purchaser’s rights related back to the day of the sale.
This was provided by § 13770, Pope’s Digest. For change of date, see § 84-107, Ark. Stats.
Redemption is payment. See Mabrey v. Millman, 208 Ark. 289, 186 S. W. 2d 28.
We so held in Watson v. Anderson, 201 Ark. 809, 147 S. W. 2d 28.
There is an article by G. D. Walker in 1 Ark. Law Review, p. 37, entitled “Effect of Forfeiture for State and County Taxes,” wherein this point is carefully discussed.
This is the plain language of Act No. 329 of 1939, which we have held to be both curative and retroactive. See Watson v. Anderson, 201 Ark. 809, 147 S. W. 2d 28.
In addition to Lyle v. Sternberg, supra, see, also, Rouse v. Teeter, 214 Ark. 488, 216 S. W. 2d 869. | [
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Riddick, J.,
(after stating the facts.) We are of the opinion that the circuit court did not err in sustaining the demurrer to the petition of Gacking, and dismissing the action. We deem it unnecessary to determine whether the statute which empowers the county court to transfer the children of residents of one school district to an adjoining district for educational purposes (Sand. & H. Dig., § 7062) applies to single school districts of towns and cities; for, if we concede that the statute affected such districts, yet the county court, by the terms of the statute, can compel a school district to receive children from another district only when they are transferred from and reside in an adjoining district. Now, at the time the children of plaintiff were transferred to the school district of Fort Smith, plaintiff lived in an adjoining district; but after-wards a new district was made, and this new district, in which he now resides, does not adjoin the Fort Smith district. If the order transferring the children of plaintiff to the school district of Fort Smith was valid when made, it was annulled or suspended by the subsequent order of the same court creating a new district, which includes the residence of plaintiff, and which does not adjoin • the school district of Fort Smith. By the creation of such district so as to include the home of plaintiff, he and his children became members of the same, and the courts have no power to compel a non-adjoining district to receive his children in its schools. Sand. & H. Dig., § 7062. The transfer order mentioned above could not be effective after plaintiff ceased to reside in an adjoining district, and he is in the same situation as he would have been had he voluntarily moved his residence to a school district not adjoining that of the city of Fort Smith.
For these reasons, the judgment of the circuit court is affirmed. | [
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Ward, Justice.
Jesse Stovall, appellee, on or about September 1, 1950, became acutely aware of an injury to his back, which injury he thought arose out of and in the course of his employment with appellant. His claim for compensation was disallowed by the Workmen’s Compensation Commission. The Circuit Court, on review, reversed the Commission and Stallings Bros. Feed Mill, the employer, prosecutes this appeal to reinstate the Commission’s findings.
The trial judge, in a comprehensive statement of his findings which evidences much care and ability, reached the conclusion that there was no substantial evidence to support the findings of the Commission. In reaching the conclusion he did the trial judge recognized the well-established rule that the findings of the Commission are tantamount to the findings of a jury on questions of fact and should, therefore, be sustained by this Court [as well as by a trial court] if they are supported by substantial evidence. The decision, therefore, for us to make is not what we would have done had we been members of the Commission, but it is whether the findings made by the Commission are supported by substantial evidence. Our conclusion is that the findings are so supported.
In view of the sole decisive question stated above, it will not be necessary to set out the evidence fully and particularly the testimony supporting appellee’s view.
Jesse Stovall, age 50, had worked for Stallings Bros. Feed Mill about five years. At the time he became incapacitated, and for some time before, he was engaged in delivering by truck 100 pounds sacks of feed to retail merchants. It was and had been a part of his duties to lift these sacks in order to load and unload his truck. On September 1, 1950, the day of the alleged injury, appellee, with a helper, as was usual, unloaded about 50 sacks at a retail store in Conway. In doing so he became aware of a pain in his leg — not too severe. Later he drove to Opal, noticing some pain on the way, and there made another delivery. "While he was attempting to handle another sack the pain in his leg became so severe that he let the sack fall and he was unable to assist further in unloading. At this time he made mention of the pain for the first time to his helper. According to appellee he made other deliveries though he could not lift the sacks, finished his route, returned to appellant’s place of business at Morrilton, and drove home where he was helped into the house. He has not worked since.
On October 17, 1950, an operation disclosed a protruding or ruptured dislocated disc between the fourth and fifth lumbar, which was removed. The doctor could not tell just how long the disc condition had existed but thought it was a gradual type caused by lifting over a period of time. There was medical testimony to the effect that the type of work appellee was doing could have produced the rupture with no history of previous injury • that the day the injury occurred was when the disc ruptured or an old condition was aggravated; and that the onset of appellee’s disability was when he began having-pain on September 1st.
Based on the above evidence it appears reasonable that the Commission was legally bound to award compensation. However there was other testimony which the Commission was obligated to consider and which it had the exclusive right to evaluate. The substance of that testimony is set out below.
On September 11th, appellee’s employer made a report of the injury and in answer to the question “How did the accident happen 1” he stated: “The man gave no history of a specific accident but in course of his work he developed pain in his hip to his ankle.” In making reports to doctors and investigators after the injury, and before the hearing,- appellee failed to attribute his injury to lifting sacks on any particular occasion. On one occasion, at least, appellee was quoted as saying he had been lifting sacks for several years just as he did on September 1st; that his motions were the same; and that he recalled no unusual strain on the day of injury. On these occasions appellee is alleged to have made statements indicating he first noticed the pain while driving the truck on the day in question and that he noticed the pain before he left for work that morning.
In addition to the above, it is in evidence that appellee had trouble with his side or hip the year before; that he had been treated for kidney trouble; that a chiropractor had recommended treatment for a “catch” in his back in 1949 which he was unwilling or unable to take; and that he lost about thirty days work in the summer of that year.
In trying to apply the law as it has been developed by the decisions of this Court to the facts in this case, some interesting hairline questions can be raised. Without recapitulating our many decisions, it suffices here to point out that some cases indicate that no fortuitous incident in the nature of an accident is necessary to sustain an award by the Commission, while others indicate just the opposite. Some of the first class of cases are: McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S. W. 2d 210; Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S. W. 2d 961; Sturgis Brothers v. Mays, 208 Ark. 1017, 188 S. W. 2d 629; and Quality Excelsior Coal Co. v. Maestri, 215 Ark. 501, 221 S. W. 2d 38. Some recent cases which indicate there must be something in the nature of an accident before recovery can be sustained are: Baker, et al. v. Slaughter, 220 Ark. 325, 248 S. W. 2d 106; Farmer v. L. H. Knight Co., 220 Ark. 333, 248 S. W. 2d 111; and C. & B. Construction Co. v. Roach, 220 Ark. 405, 248 S. W. 2d 368.
In this connection it is well to quote the definition' of “injury” as it is set out in the 1948 Initiated Act No. 4, Ark. Stats. (Supp.) § 81-1302 (d), the pertinent part of which reads:
“ ‘Injury’ means only accidental injury arising’out of and in the course of employment. . . .”
The suggested inconsistency in our decisions is, we think, more apparent than real, and stems more from the detached significance attributable to certain words, used perhaps carelessly or unnecessarily, than from the result arrived at in the several cases. We are convinced, after much deliberation, that no clear-cut, practicable and workable rule can be spelled out for determining, in hairline cases, whether a state of facts constitutes an “accident” or “accidental injury” or does not within the meaning of the statute. This is just another way of saying that we conclude that each case must be decided, on this point, on the facts presented, and that the situation presents a question of fact to be determined by the Commission, being bound, of course, to apply the facts to the law.
Here the Commission found as a fact ‘ ‘ that any condition from which this claimant suffered to the back and right leg and which caused disability subsequent to September 1,1950, was not the result of an accidental injury arising out of and in the course of his employment with this respondent employer.”
We cannot say the finding made by the Commission in this case was not supported by substantial evidence. Therefore, the trial Court must be reversed and the Commission’s finding reinstated. | [
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Griffin Smith, Chief Justice.
The issue is whether a deed executed by father and mother to their daughter — -an only child — should be cancelled, modified, or sustained in its entirety. It is also insisted that $1,600 in cash, or that portion not expended for the benefit of father and mother, should be returned by the daughter. The land aggregate is 78.5 acres.
John Kelley, 71 years of age at trial, is unable to réad or write. Because of these handicaps his wife, Emma, looked after domestic matters requiring some degree of education. It is in evidence that Kelley could not count money when the amount was large, therefore Mrs. Kelley received payments intended for their mutual benefit, and family bills were paid by her. The couple had accumulated the $1,600 mentioned in the complaint and its keeping and incidental expenditures from it were entrusted to Mrs. Kelley.
On October 24th, 1949, Mr. and Mrs. Kelley went to Charles Eddy, a notary public who had known them for more than a quarter of a century, and asked him to prepare the deed. In the suit for cancellation resulting in this appeal Kelley alleged that he was under the influence of his wife, that he did not want to part with the property, but finally consented that the deed be prepared when it was explained to him that effectiveness depended upon delivery — a transaction he vigorously denied with intimation that the daughter, Dorothy Driver, took the instrument from a trunk and had it recorded, and in some manner it was returned. The recited consideration was $1, and love and affection.
Mrs. Kelley died June 16, 1951, and shortly thereafter Kelley, while handling other papers, observed writing on the deed. He explained that, although he could not read, he recognized that the “recorded part of the deed” had been filled out. Efforts to induce Mrs. Driver to reconvey that property were unavailing and this suit followed.
Intimations in the brief are that the Kelleys executed the conveyance in order to qualify for state relief payments. They did not live on the land, but occupied a home on thirteen acres nearby. Mrs. Kelley had been in poor health for eight or ten years and had been hospitalized several times. Shortly before her final illness an argument arose regarding the accumulation of money ($1,600). There is testimony that Kelley refused to send his wife to the hospital unless the money were given to him. Mrs. Driver admitted having it, but instead of giving the containers to her father she pinned them to her mother’s underclothing. After Mrs. Kelley’s death Mrs. Driver turned over to her father $679.47 that remained after necessary bills had been paid. Included in proven payments was $450 to Dr. Linton.
The trial court was correct in finding that Mrs. Driver had accounted for the money.
We are not persuaded that Kelley was mentally incompetent, or that his wife’s over-persnasion was an influence thqt should militate against the grantee. Neither do we accept the argument made by Kelley’s counsel that no burden could attach to Mrs. Driver’s action in deeding the land back to her father because, being an only child, “. . . she would thus have inherited the lands in a few years”. In the meantime, of course, the grantee could otherwise dispose of the estate and proceeds.
There is evidence that the Kelleys, after execution of the deed, mentioned the fact that the land had been conveyed to their daughter.
Allen Driver, Kelley’s son-in-law, testified that the grantors brought the deed to his home, told his wife it should be recorded and [assessments] changed on the tax books. Driver then effectuated recordatory details, brought the deed back, and later gave it to Kelley.
Dorothy Driver testified that she loved her father, ‘ ‘ and I will do anything I can to help him. He can have the use of the land during his lifetime, although there is nothing whatever in the deed about it”. She disclaimed any responsibility for the action of her father and mother in executing the deed, and emphatically denied spending any of the $1,600 for personal purposes. The grantors, she said, brought the deed to her and asked that it be recorded and assessments changed in such a way as to show who the true owner was, to the end that confusion in tax payments would not arise;
Since preponderating testimony does not disclose mental incapacity, undue influence, or an agreement by the grantee to maintain her father in consideration that she receive the land, the true status appears to be that Kelley has changed his mind. There is no delineation of title, hence the actual legal or equitable interest of Mrs. Kelley does not appear, although inferentially title was in Kelley and his wife’s interest was dower and homestead unless the actual homestead attached exclusively to the thirteen-acre tract.
Tlie deed, prima facie, was the grant of John and Emma Kelley. In the absence of evidence to the contrary we must assume that Mrs. Kelley’s interest was proprietary; hence when she and her husband made the conveyance and when the deed was delivered, title vested in their daughter.
In her answer to John Kelley’s complaint, Mrs. Driver said: ‘‘Defendant further states, without binding’ herself for any specific amount, that if her father, the plaintiff herein, was in need, that she would assist him in every way possible”. The trial court seems to have treated this statement as having some bearing on the original grant, but since there is insufficient testimony of a competent character to show that Mrs. Driver, in 1949, consented to anything not expressed in the deed, we think Mrs. Kelley’s wishes become of controlling importance.
Anything alien to the deed’s provisions should not be judicially imposed upon the grantee because one party to the transaction now has a different conception of intent. Nor can Mrs. Driver’s pleading be regarded as anything more than a moral obligation to assist her father to the extent of her ability when necessity arises.
Mrs. Driver’s assurance in open court that she was willing for her father to have the land for life is different from the indefinite promise of support. Entity and the imposition of a life estate in Kelley’s favor through the implied (if not wholly expressed) consent of Mrs. Driver present no practical difficulties. So we modify by vesting the fee in Mrs. Driver, subject to a life estate in her father. In other respects the decree is affirmed. | [
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Griffin Smith, Chief Justice.
Mandred Robinson, common ancestor of those claiming under the decree, owned forty acres and other lands in Craighead county. Most of the forty was planted to rice, but there was some timber. Mandred agreed to sell to his son Hervey the specific tract in question. A deed was executed, but no consideration was paid by Hervey and it was undelivered when Mandred died in 1929 survived by three other children — Henry, Charles, and Belle.
Hervey remained in possession until he died in 1937. His widow, Dovea, was appointed administratrix; thereupon a petition was filed in probate court reciting that Hervey had agreed to convey to Henry the interest he (Hervey) had in other ancestral lands — lands owned by Mandred at the time of this death. An order directed execution of a deed consonant with the oral agreement, and this was done. A later order resulted in the execution of a deed to replace one found to have been made by Hervey to Charles in fulfillment of an agreed division of Mandred’s lands. The division referred to is said to have been evidenced by a deed executed in 1936. It was lost.
A deed prepared at a time not disclosed described the forty acres and named Charles and Belle as grantors to Hervey. They were joined by their consorts. This transaction occurred shortly after Hervey’s death and the deed was not signed by Henry.
After Hervey’s death, which occurred February 19, 1937, a fourth child was born. On February 19, therefore, his family consisted of the widow and three minor children. April 3, 1937, the widow, Dovea, having been appointed administratrix, executed a deed to Henry conveying the forty acres. Henry remained on the land until this possessory action was filed by Ludean Gulley, Hervey’s oldest daughter. She sued in her own right and as next friend of the three minor children. An accounting of rents and proceeds from the sale of timber was asked; also that title be quieted. Charles and Belle had formerly disclaimed any interests.
The Chancellor found that Mandred’s heirs had joined in a family settlement in 1936, prior to Hervey’s death. By this settlement Hervey acquired the interest of his brothers and sister in the disputed acreage in exchange for conveyances of Hervey’s interest in other property. Rents and profits were computed and charged against Henry, with allowances for taxes and improvements. Neither party challenges correctness of the amount of this determination.
Henry concedes that the deed by Hervey’s widow could not convey interests of the minor children, but insists that it effectively transferred dower rights. He also disputes the family settlement. Henry denies liability for rents, insisting that his status is that of a co-tenant upon whom no demand for participation was made. Further, he seeks to impose the bar of statutory limitation upon Ludean, who became eighteen more than three years before suit was filed.
Appellees counter with, the contention that no dower interest was assigned Dovea, hence there was no transfer to her, and Henry acquired nothing. They discuss Henry’s status as a co-tenant, insisting that as to the disputed interest it is dependent upon acquisition of the dower rights or failure of the family settlement. If dower were not conveyed, or if the family settlement took place, Henry has no interest upon which his prayer for partition can rest, nor can he escape accounting for rents and the sale of timber.
The plea of limitation is met by argument that until shortly before Ludean’s suit was filed there was no notice that Henry claimed adversely; on the contrary the presumption would be that he held as guardian of Hervey’s minor children. Henry is charged with fraudulent conduct in accepting Dovea’s deed forty-three days after Hervey’s death — a deed purporting to convey the widow’s rights and those of her children; and it is urged that his conduct justifies avoidance of the transaction. The deed is not abstracted and related facts are not before us.
It is not necessary to examine the evidence to- determine whether fraud on Henry’s part is shown. Circumstantial considerations supported by documentation are sufficient to sustain the Chancellor’s conclusions that agreements were reached in 1936 under which the children of Mandred Robinson disposed of their allocable rights to the estate, including forty acres intended for Hervey.
Mandred and Hervey jointly operated the rice farm during the father’s lifetime. At his death Hervey continued to use it, then parted with title to other property as to which (but for the family settlement) he would have inherited from Mandred. The background of events strongly indicates inter-party discussions and mutuality involving persons and subject-matter. Henry’s claim that, irrespective of other factors compounding the deed received from Dovea, he is nonetheless entitled to partial ownership through inheritance, cannot be sustained in opposition to the family settlement.
Appellees are correct in contending that limitation does not apply until there is notice of an adverse claim. There is nothing conclusive of the proposition that Henry’s possession was of a character to charge his minor niece with knowledge that his use of the farm and timbered area was hostile to her, thus imposing the duty of acting within three years after reaching legal age. Further, if Henry did not acquire title under Dovea’s deed, and if he had parted with a prior interest by reason of the settlement in 1936, he was not a co-tenant. Whether there was demand by others who might claim as co-tenants touching rents and timber rights becomes unimportant.
The court found that the defendant’s receipts from timber sales amounted to $200 and that he had collected rents aggregating $450 prior to 1949. Rents for 1949, ’50, and ’51, were in the court’s registry. Judgment was rendered for $650, less tax payments and improvements of $476.80. Net amount found to be due (exclusive of impounded funds) was $173.20.
While the account as thus cast is not questioned as to the amount, it is inferentially argued that Henry’s accountability should be reduced by a sum equal to earnings of Dovea’s dower interest supposedly conveyed by her deed to Henry.
There is no proof that dower was assigned and no evidence supporting a supposition that dower attached to the particular property conveyed. The mere fact that Dovea was Hervey’s widow is not sufficient to create a presumption that a one-third life interest had been set apart for her in lands owned by Hervey, or that this particular tract had been so designated. In this litigation Henry was charged with the burden of establishing identity of Dovea’s dower, and this he failed to do; nor was any computation touching the value of such suggested interest attempted. It would be impossible (assuming that such interest existed) to determine the ratio it bore to the totals involved in charges and credits dealt with by the Chancellor.
Since the case was not presented on the theory that dower, if transferred, should be evaluated in mitigation of Henry’s liability for rents and profits, the variation should not be imposed on appeal.
Affirmed.
Justice George Bose Smith dissents. | [
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Ward, J.
The petitioner, Wilburn L. Johnston, received a divorce from his wife, Lucille Johnston, October 4, 1947. The decree of divorce provided that he should pay $35 per month for the support of their two small children, Sammy Lee and Mary Ann, and it also reserved in the court jurisdiction to make other orders for the care of the children.
The husband not having made the payments provided for in the original decree, appropriate legal steps were initiated and on May 4, 1952, a petition was filed by the ex-wife and two children alleging delinquency in payments “both prior to and continuously from March 4, 1952” and asking that the husband show cause on June 4, 1952, why he should not be held in contempt of court.
On the last above-mentioned date the Chancellor on exchange heard the case and found the petitioner guilty of contempt and remanded him to the custody of the sheriff pending further orders of the court. The Chancellor, also, in a written statement set out that in view of the fact he was not the regular Chancellor, he would allow the petitioner to he discharged from custody if he would pay $50 for support of the children pending a further hearing by the regular Chancellor on August 13th.
Petitioner filed a response to the citation for contempt in which he did not deny being behind with the payments, but alleged that he had not paid because he was not financially able to do so, and he asked that the original decree be modified and that he be relieved from making the said monthly payments. Since we are affirming the decision of the Chancellor, only a summary of the evidence produced at the hearing will 'suffice.
The only evidence produced was that of the petitioner and his witnesses and there is no question but that he showed he was a man of little financial means. Petitioner is 29 years old, has married again and has two small children by his second wife. He stated that he had low blood pressure, indicating he was unable to do hard and continuous manual labor. He owns no land, but is farming about 60 acres in corn for which he pays one-third as rent. He owns hi's household goods and farming implements including a tractor, truck, etc., and also owns a milk cow, all of which are mortgaged for a considerable portion of their value. It takes all he has been making to feed and clothe his present family and he has to borrow money from his landlord to make a crop. It costs him about $30' to $35 per month to feed his family and he now is behind a month or two with his grocery bill.
On the other hand, some facts were developed which we think justified the Chancellor’s decision. Petitioner’s statement that he had low blood pressure was uncorroborated and the work he did, such as farming and carpentering, certainly indicates he was a man of reasonable health and strength. Some of the money he owes was borrowed from his father over the past year or two and he gave his father a mortgage after this proceeding was instituted. Likewise, he gave his landlord a mortgage on all his crops while the matter was pending, notwithstanding his landlord already had a lien for his rent and advances. Though his landlord had already advanced him about $400, he was still willing to advance him $200 or $300 more, and felt safe in doing so. The lowest estimate showed that his crop will be worth something like $2,000, and the evidence indicates he has several hundred dollars ’ equity in his farm equipment. The evidence indicates that he might have tried to mislead the court as to the condition of his truck. Petitioner admits that all his time is not consumed in his farming operations and also admits that he has not tried, at least not consistently, to obtain other employmeiit.
Considering the facts developed in this case, some of which are set out above, we do not feel justified in saying the Chancellor abused his discretion in holding petitioner in contempt of court, or, to say it another way, in coming to the conclusion that petitioner could have made substantial payments for the support of his children by his first wife if he had honestly tried to do so.
The law in contempt cases, though not voluminous, seems to be well settled. We find in 172 A. L. R., at page 876, what seems to be the accepted rule in these words:
“So, the enforcement by contempt of a court’s orders in respect to the payment of a child’s support by its father is a matter that rests in the sound discretion of the chancellor, just as it is in his sound discretion either to relieve altogether or in part or compel payment of an accumulation of unpaid allowances.”
We note here that the special Chancellor expressed a willingness to offer easy terms to the petitioner which he did not see fit to accept, and we have no doubt that the regular Chancellor will, when the occasion arises later, provide terms for petitioner’s release from custody which are reasonably within his financial ability.
It is well-settled law, as recognized in the case of Hervey v. Hervey, 186 Ark. 179, 52 S. W. 2d 963, that imprisonment for contempt can only be justified on the ground of willful disobedience of the orders of the court. The same case, however, holds that the decision of the chancellor will not be disturbed unless it is against a preponderance of the evidence. Here we are unwilling to say the chancellor’s finding was against the preponderance of the evidence. This rule is in harmony with, if not the same as, the rule first above announced.
As recognized in the case last cited above and also in Tennison v. Tennison, 216 Ark. 784, 227 S. W. 2d 138, chancery courts have inherent powers to punish for contempt for disobedience to their orders. It seems to us that this power is especially important if chancery courts, with their limited means, are to guard the rights of dependent children in cases like this.
Some question was raised by petitioner regarding the proper function of the Writ of Certiorari in this and similar cases. We call attention to the approval of this method of procedure as sanctioned in Ex Parte Butt, 78 Ark. 262, 93 S. W. 992, and in Ex Parte Caple, 81 Ark. 504, 99 S. W. 830.
In view of the conclusions reached above, the petition is denied. | [
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Griffin Smith, Chief Justice.
In finding against liability and adjudging that Gertrude Richardson could not recover for the death of her husband, Workmen’s Compensation Commission said:
‘ ‘ To hold that an employer is liable for the death of an employe simply because he dies within the hours of his employment while engaged in his usual occupation without the intervention of an unusual happening brought about by a risk or hazard created by the employment, would be placing a liability upon the employer which is pot contemplated by the Act, and would in effect be changing "Workmen’s Compensation coverage into health, sickness, and life insurance”.
The application of this pronouncement is presented by the appeal of Faust Band Saw Mill and its liability carrier, American Mutual Liability Insurance Company. Circuit court reversed the Commission, and we, in turn, must reverse the trial court.
The decedent had spent a large part of his life as an agricultural worker, but for a considerable period prior to death had been engaged as a lumber stacker for the sawmill company. At 11:30 a. m. Sept. 12, 1950, a brief rest was taken after unloading a wagon and waiting for another. The interim is estimated at from three to five minutes. During this period Richardson talked with other workers and gave no indication of physical impairment or distress other than an incidental remark to the effect that he was not feeling well. He had, however, mentioned that a son had been in trouble. Another witness, in commenting upon Richardson’s attitude and reactions, remembered his comment that the son’s involvement had been disposed of.
Milton Lynch was working with Richardson the day death occurred. The two had been associates since December, but in previous years had worked together. A stacking crew is composed of two men; one stands on the lumber pile to receive the sawed product as it is taken from a wagon, while the ground man (in this case Richardson) uses a jack to assist in lifting. The jack is described as a five-foot piece of iron or steel about four inches wide, approximately an inch thick and its weight was 36 lbs. It is used as a lever to aid in hoisting the lumber.
The planks sawed the morning of September 12th were cottonwood, an inch thick — considerably lighter than oak or hickory. When asked whether a stack of lumber had been partially finished Lynch replied, “No, just a little low pile ’ ’. But in explaining details of the morning operations the witness testified that ninety layers of lumber had been stacked between seven o ’clock and 11:30. In answer to the question, “Did you stop during that time?” Lynch replied, “Oh, yes, we sat around!” Some days they would stack 120,130 or 140 layers before noon, depending on how rapidly the product came from the mill. Two stacking crews were employed and the men were paid by the thousand board feet. Appellee assumes from this circumstance, and from testimony given by Lynch, that there was some competition between the two groups for access to wagons as they came from the mill. The 'clear inference deducible from this testimony is that the competition was voluntary and that there was an entire absence of compulsion.
After the three-to-five minute intermission Lynch and Richardson observed a wagon approaching with a load of lumber. It is indicated that Richardson (who had picked up the jack and had it on one shoulder) concluded to make first contact with the wagon and thereby establish priority over the second crew. He started walking in the direction of the wagon — “just an ordinary [fast] walk, he wasn’t running” — and was seen to fall backward. Lynch was not far behind the unfortunate man. When he reached Richardson the stricken worker gasped and died almost immediately. In falling Richardson was not vitally hit by the jack, which fell on his legs.
Lynch had testified that their purpose in getting possession of the lumber was to complete a stack of a hundred layers before noon; that they were seven or eight shy; that eight tiers could be laid in five minutes, and they had about thirty minutes in which to complete the task.
. Two physicians testified. Dr. H. B. Oldham saw the dead man within fifteen minutes after the heart attack occurred. Coronary occlusion was the diagnosis. From an examination no outward appearances indicated that the cause of death was accelerated by any accidental injury, nor were there symptoms suggesting that death had occurred from any abnormal cause. The witness could not say whether rapid walking and a 36-lb. load brought on the coronary stoppage — “he could have had it while resting ’ ’. On cross-examination Dr. Oldham said that the heart trouble would not necessarily have been disclosed by previous symptoms, that is, not in a manner causing suffering and distress. Undue’ exertion and unusual strain “possibly” could have had a tendency to cause collapse. The Doctor would not say that the exercise admittedly engaged in by Bichardson “probably” caused heart stoppage. Question: “If it he true that the deceased collapsed while carrying a steel bar and while Availring at a rapid gait, state. Avhether or not, in your opinion, his death would have occurred at that time and place if it had not been for such unusual exertion on his part?” Answer: “It is impossible to answer ‘yes’ or ‘no’ to this question. [He could have had] coronary at any time”.
Dr. Doyle W. Fulmer, under examination by the claimant’s attorney, reached the following conclusions: “Any unusual stress or strain on a diseased blood vessel — especially those of the heart and brain- — -will produce symptoms. The act of carrying a heavy object and hurrying is likely to aggravate a diseased vessel and result in rupture or occlusion. From this case history it is my opinion that the act of hurrying and carrying a weight aggravated a diseased condition”.
The applicable law here does not differ appreciably from A\diat was said in Baker v. Slaughter, 220 Ark. 325, 248 S. W. 2d 106. Ark. Stat’s, § 81-1302. Compensation is recoverable only Avhen death or injury results from an accident. A worker killed or disabled while on the job, or whose death is perceptively hastened by reason of some unusual transaction — a transaction that might with reason be construed to be an accident — comes within the Act’s provisions. But, as the Commission has so aptly said, the benefits are not insurance in the sense that compensation may be claimed for disability or death where at the time of impairment the work load was precisely what the employe had been engaged to carry and it is not unreasonable.
There is substantial testimony to establish a normal course of conduct. Best periods were frequent, the lumber handled September 12th was not of the heaviest, the iron jack Avas- not being used to hoist mill products, the quantity stacked was below an average, and Bich ardson was merely walking rapidly with a 3'6-pound load when the heart attack occurred. He did not stumble or strike anything while approaching the wagon, and the fall itself was not traumatically serious.
Our decisions rest on the proposition that the Commission must ascertain essential facts and that its conclusions will not be disturbed if the evidence for or against an award is substantial. Here the finding was that death occurred from a natural cause, hence circuit court erred in disturbing the decision.
Reversed with directions that the Commission’s findings be reinstated.
Mr. Justice Millwee dissents; Mr. Justice Ward concurs. | [
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Bunn, C. J.,
The plaintiffs, Gray Bros., by bill in chancery seek to set aside a conveyance made by defendant James A. Meacham to his daughter and co- defendant, Elizabeth A. Patterson. Decree for defendants on the complaint, answer and testimony in the cause, and the plaintiffs appealed to this court.
The complaint was filed at the fall term, 1895, of the Independence circuit court in chancery, setting up substantially the following facts, to-wit: That plaintiffs obtained judgment against defendant Meacham in justice of the peace court, on 17th August, 1895, and in due course, after execution issued and returned nulla ~bona, caused a transcript of said judgment to be lodged and filed in the circuit court of said county; that after the debt was contracted, but before said judgment for the same was rendered, to-wit, on the 10th March, 1894, said Meacham conveyed to his said daughter, for the consideration named in the deed of $800, the following lands lying and being situate in said county, to-wit: The N. E. ¶ of the N. W. | of section 1, in township 14 north, of range 6 west, the N. W. J of the S. W. ¿ and the E. g of the S. W. | of section 36, township 15 north, of range 5 west, containing in all 160 acres, and that the same was all the property he owned at the time, of any material value; that the said Elizabeth A. Patterson, at the time of said conveyance to her, had full knowledge of the existence of said indebtedness of her father, the said James A. Meacham, to the plaintiffs, and that the consideration named in said deed from him to her was a mere pretended consideration, and that said conveyance was made in fraud of Meacham’s creditors, the plaintiffs among the number. Prayer to set aside the conveyance, and subject the said lands to plaintiffs’ said judgment, which at the institution of this suit amounted to $205.
The answer admits the partnership of plaintiffs, that they obtained judgment against Meacham in justice of the peace court, and that a transcript of same was filed in circuit court, as stated in the complaint, but denies that the consideration of the deed from Meacham to Patterson was a pretended consideration, and, on the contrary, avers the same to have been bona fide; that it was the estimated value of the expenses and services to be borne and performed by Patterson in the care and maintenance of her father, the said Meacham, during his natural life, which was the real consideration, and which she obligated herself to defray and perform for that purpose for him. It denies all knowledge of said indebtedness at the time of the making of said conveyance from Meacham to said Elizabeth A. Patterson, his daughter as aforesaid. It sets up that said Meacham, as the husband and father and head of a family, had occupied said lands as his homestead for moi*e than fifty years next preceding the filing of the same; that a large family of children had been reared thereon, had died, married and gone from the paternal roof, and finally the wife and mother died, and defendant Meackam, in his advanced age, being about eighty-five years old, after remaining alone upon the homestead about one year after the death of his wife, as a matter of necessity (being unable to care for himself, and failing to induce same to live with him) took up his abode with his said daughter; that it was his constantly expressed desire to return and live in his old home, which was near by, but, failing to procure any one to live with him there, he finally made the arrangement with the daughter indicated, conveying to her his said homestead lands as his part of the agreement to that end.
The questions presented by this record are: Did Meacham lose his right of homestead by the death and removal of all his family and dependents? Did he subsequently abandon his said homestead after the death and separation of his family, so as to leave the same subject to the payment of his debts; and, if so, what was the act of the abandonment; and, in either case, what was the effect of his action upon his creditors? In other words, did he ever and in fact abandon his homestead until the sale thereof; and, if not, was the sale void as against creditors?
In Stanley v. Snyder, 43 Ark. 432, the court said. “The existence of a family being necessary to the acquisition of a homestead, does a continuation of the right depend on a continuation of the family relation? The decided weight of authority is that a homestead estate,’ when once acquired, and still occupied by the owner, is not defeated or lost by the death of his wife or the arrival of his children at the years of maturity. Thus, the Massachusetts statutes of 1855 limited the homestead exemption to a ‘householder having a family,’ and continued it to the widow and children after his death, but contained no provision as to its continuance in the husband after the death of the wife and departure of the children. Nevertheless, where the owner of certain premises lived upon them with his wife and son at the time of the passage of the act, it was held that he acquired under the statute a homestead estate therein, which was not affected by the subsequent death of his wife and the coming of age and departure of his son, so long as the father continued to occupy the premises as his home. ‘Any other construction’ (says the supreme court of Massachusetts), ‘would render a husband, who had been deprived of his family by accident or dis ease, or by their desertion without any fault of his, liable to be instantly turned out of his homestead.' ” And, construing further: “The constitution, which contains our homestead statutes, has not in express terms anticipated and provided for every possible phase of the question. It therefore devolves upon the courts to construe and apply the law to new eases, as they arise. Interpreting the law according to its spirit, and following the current adjudications, we hold, though with some hesitation, that when the association of persons which constitute the family is broken up, whether by separation or the death of some of the members, the right of homestead continues in the former head of the family, provided he still resides at his old home.” The expression, “provided that he still resides at his old home,” is to be taken in its legal sense, and not in its literal sense; for it does not mean to make the continuation of the homestead right dependent upon actual occupancy, but upon such occupancy as a homesteader may successfully show in answer to a charge of homestead abandonment, according to the principle.laid down in the books. Thus, although not in the actual occupancy of the homestead, yet, if his absence therefrom is only temporary for business or pleasure, — and we may add for necessity or convenience, — it is still an occupancy. Euper v. Alkire, 37 Ark. 283; Flask v. Tindall, 39 Ark. 571; Marr v. Lewis, 31 Ark. 203; Brown v. Watson, 41 Ark. 309. But, this being a question of fact, and determined in favor of appellee by the court below, upon evidence sufficient to sustain its findings, the same will not be disturbed here.
Taking this view of the matter, Meacham’s homestead right continued up to the time of its sale to his daughter, and therefore we are only called upon to consider whether the plaintiffs and appellants can complain of the sale in any event. The case of Chambers v. Sallie, 29 Ark. 407, arose under the constitution of 1868, upon which a judgment, as in that case, was a lien upon the homestead, and the issuance of an execution thereon was only postponed until the homestead right ceased, when it could be levied, and the homestead sold thereunder. The homesteader could not defeat this judgment lien by sale of the homestead under that constitution. But no judgment is a lien upon the homestead under the present constitution, and this court has said, time and again, that the sale of the homestead is no concern of the creditor; and whatever may be our personal views of the matter, it is settled law, and it were better that it be not re-opened for discussion. Bogan v. Cleveland, 52 Ark. 101; Bennett v. Hutson, 33 Ark. 762; Turner v. Vaughan, 33 Ark. 454; Carmack v. Lovett, 44 Ark. 180; Stanley v. Snyder, 43 Ark. 429; Pipkin v. Williams, 57 Ark. 242; and Campbell v. Jones, 52 Ark. 493.
This, in our opinion, settles this case. Decree is therefoi’e affirmed. | [
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Hughes, J.,
(after stating the facts). The precise question in this case has not been decided in this court.
Following the decided weight of authority, it is held in Richardson v. Adler, 46 Ark. 43, that “the members of an in solvent firm are not entitled to the exemptions allowed by law, out of the partnership property, after it has been seized to satisfy the demands of the creditors of the firm.” The court said: “The interest of each partner in the partnership assets is his portion of the residuum after all the liabilities of the firm are liquidated and discharged. Property belonging to the firm cannot be said to belong to either partner as his separate property. It is contingent and uncertain whether any of it will belong to him on the winding up of the business, and the settlement of his accounts with the fixm. ‘Joint property is deemed a trust fund, primarily to be applied to the discharge of partnership debts, against all persons not having a higher equity;’” citing Pond v. Kimbal, 101 Mass. 105; Gaylord v. Imhoff, 26 Ohio St. 317; Giovanni v. First National Bank of Montgomery, 55 Ala. 305; in re Handlin, 3 Dill. 290.
As affecting the question involved, the statute of Ohio exempting personal property is substantially like ours, which provides that; “the personal property of any resident of this state, who is married or the head of a family, in specific articles to be selected by such resident not exceeding in value the sum of five hundred dollars, in addition to his or her wearing apparel, and that of his or her family, shall be exempt from seizure on attachment, or sale on execution, or other process from any court, on debt by contract.” Sand. &.H. Dig., § 3716; Const, art. 9, § § 1, 2.
In the case at bar the appellant filed no schedule claiming his exemption in specific articles.
In the opinion in Gaylord v. Imhoff, the Ohio Supreme Court said: “Looking alone to the language of the section above quoted, we find nothing to justify the inference that the legislature, in passing it, was intending to provide for other than individual debtors, and for the exemption of their individual property from sale on execution; and, when construed in connection with the law relating to partnerships, as it had always stood and still stands, we are convinced that it could not have been the intention of the lawmaker to bring partners or partnership property within the operation of the section in any respect. Dealing with the statutory right, and excluding equitable considerations, which have no place here, our convic tions are based upon the fact that the right of exemption, and the mode of exercising it prescribed by the statute, are wholly inapplicable to partnership property or the rights of the partners therein, and inconsistent with the rights of their creditors in relation thereto. * * * The language of the section points unmistakably to property owned individually. The selection of the exempted property is to be made by the execution debtor, and the property selected is to be appraised and set off to the debtor. ‘Partners are joint tenants in their stock in trade, * * * * and no partner has an exclusive right to the joint stock.’ 3 Kent, 37.”
It will be seen by examination of this opinion of the Ohio court and the case of Richardson v. Adler, Goldman & Co., 46 Ark. 43, that Judge Smith, who delivered the opinion in the latter case, adopts and relies upon the reasoning and the principles laid down in the Ohio case. It seems to us that the reasoning in those cases applies to the case at bar with as much force as it does to those cases. We think the doctrine sound, and supported by the weight of' authority.
In the case of McCoy v. Brennan, 61 Mich. 362, it is held that partners can, during the existence of the partnership, claim an individual exemption in partnership property, when taken under legal process for partnership debts. The same is held in Chapman v. Kelly, 60 Mich. 438. Some other states hold the same. The idea advanced to support, in part, these cases is that the exemption statutes should receive a liberal construction in' harmony with their humane purpose. Such cases are Stewart v. Brown, 37 N. Y. 350, 93 Am. Dec. 578; Blanchard v. Paschal, 68 Ga. 32, 45 Am. Rep. 474; Servanti v. Lusk, 43 Cal. 238.
In opposition to the doctrine of these cases, the weight of authority sustains the rule that partners cannot, during the continuance of the partnei’ship, claim an individual exemption in the partnership property. Giovanni v. First National Bank, 55 Ala. 305; Bonsall v. Comly, 44 Pa. St. 442; Guptil v. McFee, 9 Kas. 30; Baker v. Sheehan, 29 Minn. 235; Prosser v. Hartley, 35 id. 340; State v. Bowden, 18 Fla. 17; State v. Spencer, 64 Mo. 355; Richardson v. Adler, 46 Ark. 43; Wise v. Frey, 7 Neb. 134; Gaylord v. Imhoff, 26 Ohio St. 317; White v. Heffner, 30 La. An. 1280; in re Handlin, 3 Dillon, 290; Pond v. Kimball, 101 Mass. 105.
The rule is said to rest upon the principle, well recognized in the decisions, that the title and ownership of partnership property is in the partnership, and neither partner has any exclusive right to any part of it.
Our constitution and statute provide that the debtor shall be entitled to claim his exemption in specific articles, to be selected by him. As we have seen, this he cannot do while the partnership continues, as the property does not belong to him individually. When the debts of the partnership are paid, if any surplus of partnership property remains, he can claim his exemption in his part of this surplus.
Had he asked that the creditors be brought in, and the partnership debts be settled, and account be had between him and his co-partner, and his interest in the surplus, after paying the debts of the partnership, ascertained, it is probable that the court should have done this.
The cases in our court to the effect that the debtor claiming exemption must claim specific articles are numerous. The burden to show that property, claimed as exempt, is exempt is upon the claimant. He must bring himself strictly within the statute.
The judgment is affirmed | [
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