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Ed. F. McFaddin, Associate Justice.
This is an original suit filed in this Court by Mrs. Nettie Rider as Executrix of the Estate of E. C. Rider, seeking a writ to prohibit the Chancery Court of Jackson County from proceeding in a cause therein pending wherein Hutson et al. are Plaintiffs and Eider et al. are Defendants, and referred to as the £‘Hutson-Eider case.”
On March 31, 1959 Hutson et al. filed complaint in the Jackson Chancery Court against E. C. Eider, Dene Hook, Mary Hook, and the Dene Hook Motor Company, Inc. The complaint alleged that in a series of transactions at various times E. C. Eider, as President and chief executive officer of the Dene Hook Motor Company, Inc., had used funds of the corporation wrongfully and fraudulently to his personal gain and had thereby become a trustee for the corporation of certain properties purchased and standing in the name of E. C. Eider. The complaint alleged that the plaintiffs were at all times stockholders in the corporation but had only recently learned of the wrongful activities of E. C. Eider; and that Dene Hook and Mary Hook, as the other stockholders and as the officers of the corporation, had refused to allow the corporation to proceed against E. C. Eider. The complaint was for an accounting by E. C. Eider, the impressing of a trust for the benefit of the corporation on certain properties standing in the name of E. C. Eider, judgment for money, and for costs and other relief.
Summons was duly served on E. C. Eider in person on April 1, 1959; but he departed this life on April 20, 1959 before filing any defensive pleading. Mrs. Nettie Eider was appointed executrix of the Estate of E. C. Eider; and Hutson et al., as Plaintiffs in the HutsonEider case, had the cause revived against the Executrix by Order of Eevivor of the Jackson Chancery Court (see § 62-2602, Ark. Stats.). Thereupon Mrs. Eider, as Executrix, filed this original proceeding in the Supreme Court to prohibit the Chancery Court from further proceedings in the Hutson-Eider case. The theory of the Executrix is, that the alleged cause of action against E. C. Eider did not survive his death: and, therefore, the Chancery Court was without jurisdiction to enter an order of revivor.
"While we entertain grave doubts as to a writ of prohibition being the proper remedy in a case like this one, we forego a decision on that point because it is not briefed and because, even if prohibition should be a remedy available to a petitioner in a case like this, we nevertheless deny the writ because we conclude that the Chancery Court Order of Revivor was correct.
Our applicable statute on survival of actions is § 27-901, Ark. Stats, which provides that for wrongs done to the person or property of another an action may be brought against wrongdoer, “. . . or after his death, against his executor or administrator . . .” In 1 Am. Jur. page 82 (“Abatement and Revival” § 107), the holdings of the various jurisdictions are summarized:
“Where the cause of action against an officer of a corporation arises from a breach of a fiduciary relation by which he enriches himself, his death does not abate the action. Therefore, a cause of action against such officer for misappropriation of corporate property by him while in office, the cause of action having arisen from a breach of a fiduciary relation by which the officer enriched himself, survives his death. An action in equity against a director of a corporation to recover secret profits made under a contract with the corporation survives against his executor or administrator.”
In 79 A. L. R. 1517 there is an extensive and enlightening annotation: “Abatement upon death, of cause of action to enforce personal liability of corporate officer, director, or trustee”; and the holdings are summarized:
“In various cases involving causes of action for negligence or misconduct of officers, directors, or trustees of corporations, or misappropriation of corporate property, it has been held that the cause of action survived the death of the officer, director, or trustee.”
Our own case of Hughes v. Kelley, 95 Ark. 327, 129 S. W. 784, points to the conclusion that we reach. There, the officers of the corporation had failed to file an annual report as required by statute. A creditor of tbe corporation brought action against the individual officers of the corporation. One of the officers was deceased and his executor was made a party. The question was, whether the cause of action under the statute survived against the estate of the deceased officer. In holding that such cause of action did survive, we quoted from our earlier case of Nebraska National Bank v. Walsh, 68 Ark. 433, 59 S. W. 952:
“ ‘Having reached the conclusion that this is a statutory liability, and not a penalty, the statute of limitations would be that applicable to all actions founded upon any contract of liability, expressed or implied not in writing; for before the forms of action were abolished, debt was the proper action for enforcing a statutory liability of the kind under consideration.’ ”
In the case at bar the proceeding is for an accounting, impressing of a trust on property, and obtaining a judgment for whatever may be shown due the corporation by the accounting. This is not a penal proceeding, but is in all respects a proceeding to redress a wrong to the corporation. We conclude that the Order of Revivor was correct and the Writ of Prohibition is, therefore, denied.
The statute read: “If the president or secretary of any such corporation shall neglect or refuse to comply with the provisions of section 848 and to perform the duties required of them respectively, the persons so neglecting or refusing shall jointly and severally be liable to an action founded on this statute, for all debts of such corporation contracted during the period of any such neglect or refusal.” | [
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Paul Ward, Associate Justice.
This is a Workmen’s Compensation case. Eomie L. Mason was killed in a car accident on Tuesday, January 20, 1959, at about 10:30 p.m. A claim for benefits for his widow, Dorothy V. Mason, and their infant daughter was disallowed by the referee and the full Commission. An appeal was taken to the Circuit Court. After said appeal had been taken claimants filed a Motion before the Commission asking it to reopen the case for the purpose of introducing newly discovered evidence. This Motion was denied by the Commission on the ground that it had lost jurisdiction. Then the claimants filed a petition for Certiorari in the Circuit Court to have the proceedings on the Motion (before the Commission) brought up. This was granted by the Circuit Court. Also, claimants filed a Motion in the Circuit Court asking it to remand the case to the Commission for the purpose of considering the newly discovered evidence. This Motion was denied by the Circuit Court on the ground that it had no authority to remand the case to the Commission for said purpose.
Under the above state of the record the trial court then proceeded to review the findings of the Commission (disregarding the proceedings relative to the newly discovered evidence) and affirmed the same. Claimants now prosecute this appeal.
For the purpose of clarity we will hereafter treat the proceedings as if two appeals were involved. The first appeal refers to the original proceedings before the Commission, its original finding, the appeal to the Circuit Court, and its finding thereon. The second appeal refers to all proceedings relative to the newly discovered evidence.
FIRST APPEAL. Romie L. Mason was an employee of the Lanck Provision Company, located at 717 East Washington Street in North Little Rock. James L. Lauck is the owner and manager of said Company. The Company is engaged in the business of selling and servicing freezers to patrons in the State of Arkansas. It was the duty of Romie L. Mason to service these freezers when occasion arose. Some 75 such freezers were located in the Conway territory, which extended along Highway 65 leading from North Little Rock to Conway. The Company furnished Mason a panel truck which he used in connection with his duties. Mason was paid by the week and was subject to call at any time his services were needed whether day or night. Mason kept the truck at his residence when he was not using it.
On the morning of the day Mason was killed he left his home at the usual time and reported for duty at the office of the Company. Shortly thereafter Mr. Lauck asked him to go to his home and service his personal freezer. After completing this task Mason left Lauck’s home at approximately 1:30 p.m. He next appeared at about 3 p.m. at the Levy Cafe, which is located a mile or so west of North Little Rock on Highway 65. This cafe at that time was owned by “Dick” Page and his wife Mildred Page (after that and previous to the hearings Mrs. Page married a Mr. Humphreys.) While at the Levy Cafe Mason drank some beer and played shuffleboard with Mr. Page. Later at about 4:30 p.m. Mr. Page left for the purpose of going to “Dick’s Place”, which is a cafe owned by him and located approximately 5 miles further west on said Highway 65. Approximately 30 minutes after Dick Page left the Levy Cafe Mason also left, and he arrived at Dick’s Place at approximately 5:30 o’clock. Mason drank two or three beers with friends at Dick’s Place and remained there (with one exception noted later) until about 9:45 or 10 o’clock. It appears from the evidence that while at Dick’s Place Mason left somewhere around 7 o’clock and stayed for about 30 minutes then came back. After leaving Dick’s Place Mason apparently started to return home on Highway 65 when he had a collision with another car and was killed at about 10:30 p.m.
It appears from the record that the Company keeps a call-book in which are placed the names of people who call in for repair service on their freezers. This book contained a call from two people in the Conway territory. It was not shown however that Mason was cognizant of these two calls. The record further discloses that these two persons were not contacted by Mason on the afternoon or night of the day he was killed, although they were at home during that time. It further appears that Mason had told a friend earlier in the afternoon that he was to make a service call in the Conway territory that day.
The pivotal question presented to the Commission was whether Mason’s death arose “out of and in the course of his employment”. It is appellants’ strong contention that the facts and circumstances of this case bring it squarely within a well recognized exception to the going and coming rule often referred to in decisions by this court and particularly in the case of Blankenship Logging Company v. Brown, 212 Ark. 871, 208 S. W. 2d 778. In that case the court recognized “the general rule to the effect that injuries sustained by employees going to and returning from the regular place of employment are not deemed to arise out of and in the course of employment.” In that case the court further stated: “The authorities generally recognize several exceptions to the general rule. One of these exceptions, which is as well established as the rule itself, is stated by the Washington Court in the case of Venho v. Ostrander Railway and Timber Company, 185 Wash. 138, 52 P. 2d 1267, 1268, as follows: ‘When a workman is so injured, while being transported in a vehicle furnished by his employer as an incident of the employment, he is within the course of his employment, as contemplated by the act.’ ” In the case under consideration it is not denied that the Company furnished Mason the truck which he used in servicing the freezers in the Conway territory.
In support of the above contention appellants also rely upon the decisions of this court in American Casualty Company v. Jones, 224 Ark. 731, 276 S. W. 2d 41; Frank Lyon Company v. Oats, 225 Ark. 682, 284 S. W. 2d 637, and; Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579.
It would appear therefore that Mason’s death arose out of and in the course of his employment if, on the afternoon or night of January 20, 1959, he was engaged in business for his employer. On the other hand, if Mason was engaged in activities for his own personal pleasure or profit appellants’ claim is not compensable. See: Fox Brothers Hardware Company v. Ryland, 206 Ark. 680, 177 S. W. 2d 44, and Cagle v. Gladden-Driggers Company, 222 Ark. 517, 261 S. W. 2d 536. In the latter case this court in affirming the lower court stated: ‘ ‘ The commission, however, chose to base its findings upon the purely personal nature of Cagle’s activities when the misfortune occurred.”
Thus in this kind of eases, as in the case under consideration, a question of fact is presented for the Commission’s determination. In testing the Commission’s finding on this question of fact, we must give it the force and effect of a jury verdict. See: Johnson Auto Co. v. Kelly, 228 Ark. 364, 307 S. W. 2d 867, and Hobbs-Western Co. v. Craig, 209 Ark. 630, 192 S. W. 2d 116. Therefore the finding of the Commission in this instance must be sustained by us if we find it is supported by substantial evidence. If the “first appeal” were all that was involved on this appeal we would be compelled to uphold the findings of the Commission and the Circuit Court because we are convinced they are supported by substantial evidence. However, because of the conclusions reached hereafter on what we have chosen to call the “second appeal,” we make no final disposition of the cause at this time.
SECOND APPEAL. When appellants presented the Motion to the Commission to reopen the case for the introduction of newly discovered evidence, they attached to the Motion an affidavit of one Loyce W. Talley, wherein it was indicated he would testify to certain facts. We do not set out the contents of the affidavit because we do not try a case of this kind de novo.
It is appellants’ belief and contention however that this purported new evidence would result in the Commission reversing its original finding.
We hold that the Commission was correct in refusing to reopen the case on the ground that it lost jurisdiction when the case was appealed to the Circuit Court. We have concluded however that the Circuit Court erred in holding that it had no jurisdiction or authority to grant appellants’ Motion to remand the case to the Commission. We have reached this conclusion against the strong protest of appellees.
It is appellees’ contention that if the Circuit Court had any authority to remand to the Commission it must be found in Arkansas Statutes, Section 81-1325, and that no such authority is found in this section. The statute referred to, in all pertinent parts, reads as follows:
“. . . The Court shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the order or award, upon any of the following grounds, and no other:
1. That the Commission acted without or in excess of its powers.
2. That the order or award was procured by fraud.
3. That the facts found by the Commission do not support the order or award.
4. That there was not sufficient competent evidence in the record to warrant the making of the order or award.”
In support of appellees’ contention they cite the decisions in Continental Casualty Co., et al v. Caldwell, et al, 55 Ga. App. 17, 189 S. E. 408, Gonzales v. Johnston Foil Manufacturing Co., Mo. Court of Appeals, 305 S. W. 2d 45. We find that the former citation is not entirely in point and therefore not controlling and we are unwilling to follow the decision in the latter case.
In the Caldwell case the Motion to remand for the introduction of newly discovered evidence was first made in the appeals court, and no question of due diligence was involved. Also in that case it is not shown that the statutes involved were the same as our own statutes. Neither do we agree with that court in its overall understanding of the Workmen’s Compensation Act as revealed by this statement: ‘ ‘ The design of the Workmen’s Compensation Act is to furnish a speedy, inexpensive, and final settlement of the claim of injured employees. The act abhors and shuns protracted and complicated litigation over the facts of any case. * * * For this reason the act makes the finding of the Industrial Commission upon the facts final and conclusive.” Our own conception of the Workmen’s Compensation Act is that it does not consider speed more important than justice.
The Missouri Court of Appeals in Gomales case did construe a Workmen’s Compensation Statute exactly like our own statute above quoted, and the opinion does clearly hold that the Circuit Court had no authority under the statute to grant a Motion to remand to the Commission to consider newly discovered evidence. We are unable however to agree with the reasoning upon which the court reached its conclusion. What appears to be the essence of the court’s reasoning is stated as follows:
“There is nothing before us to indicate arbitrary action or abuse of discretion on the part of the Commission unless it can be said employee’s so called Motion for Reconsideration and the exhibits attached thereto constitute a part of the record in the case. There is no provision in the Workmen’s Compensation Act Authorizing the Commission to entertain such motion after final award. There is but one course to pursue after final award by the full Commission and that is to appeal to the Circuit Court. The Motion for Reconsider ation and the exhibits attached thereto were filed seven days after the Commission made its final award. Consequently it is our conclusion that such motion and exhibits were not properly a part of the record in the case and should not be so considered. The transcript as certified by the Commission to the Circuit Court did not include these documents, obviously, on the theory, and rightly so, that they constituted no part of the record. The Circuit Court should be confined to the transcript of the proceedings and the evidence as certified by the Commission when reviewing an award, absent the charge raised for the first time ‘that the award was procured by fraud.’ * * * And the court’s action in permitting the introduction of employee’s Motion for Reconsideration and the exhibits attached thereto as evidence on appeal was irregular and unwarranted.” (Lewis v. Kansas Explorations, 238 Mo. App. 697, 187 S. W. 2d 524, loc. cit., 527)
“To permit the employee, or, for that matter, the employer and insurer, to bring in new evidence after a final award has been made by the Commission, would seriously interfere with the finality of the Workmen’s Compensation proceedings. If such a course was permitted, claimant could await the Commission’s decision and if it was adverse, then search for new evidence in an effort to set aside the Commission’s Award.”
It seems to us that the same process of reasoning would apply with equal force to a Motion in the Circuit Court in an ordinary civil or criminal action, yet nothing is more generally and uniformly recognized in our jurisprudence than the power and duty of a trial court to grant a new trial on newly discovered evidence (under proper conditions) in order to prevent a miscarriage of justice. The “proper conditions” referred to are, for example, that the movant has exercised due diligence, that the evidence is not cumulative, and that the new evidence would justify a different result. These “conditions” are, we think, sufficient safeguards against undue delays and connivance on the part of the claimant, the possibility of which apparently disturbed the Mis souri Court of Appeals. It is difficult to see why every reason which justifies new trial procedure in a Circuit Court does not apply with equal force and relevancy to the Workmen’s Compensation Commission. It is noted from that portion of the Gonzales opinion copied above that even the Commission has no authority to reopen a case once it has reached a final decision. We can see no just and valid reason for us to reach such a conclusion, especially since our statute (Ark. Stats., § 81-1327) specifically provides that the Commission “shall not be bound by technical . . . rules of procedure.”
There is another fundamental respect in which we disagree with the Missouri opinion mentioned above. It holds, and appellees here contend, that the Circuit Court has no authority to remand (in this kind of a situation) to the Commission because none of the 4 grounds set forth in the statutes are applicable — that is, there is no contention here that (1) the Commission acted in excess of its power, (2) any fraud was involved, (3) the facts do not support the order of the Commission, and (4) there is no lack of evidence to support the Commission’s order. On the face of the statute that analysis appears to be sound but we think the significance of the key word in the statute has been overlooked. That word, “review”, is found in the first line of the above quoted statute. If this was a situation where the Circuit Court was called upon to “review” the record of the proceedings of the Commission, then the 4 grounds mentioned above would be applicable. However, that is not the situation presented in this case. The Circuit Court was not called upon to “review” any proceedings of the Commission. It was called upon only to consider a Motion which constitutes no part of the proceedings before the Commission. It is our opinion therefore that in this situation the Circuit Court had the same authority to consider and act upon appellants’ Motion that it always has to pass upon a like Motion in the usual civil or criminal case originating therein. Not only so, but in both instances the trial court’s sound discretion should be based upon the same considerations, to-wit: Is the newly discovered evidence relevant, is it cumulative, would it change the results, and was the movant diligent?
In view of the conclusions heretofore set forth, it follows that the entire cause should be, and it is hereby, remanded to the Circuit Court and the Circuit Court is reinvested with authority to consider appellants’ Motion to remand to the Commission for the purpose of introducing newly discovered evidence. In considering the said Motion upon remand the Circuit Court will, of course, use its sound discretion in accordance with our pertinent statements in the previous paragraph.
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PER CURIAM
Tbe appellant, E. W. Edwards, was convicted of a felony in the Garland Circuit Court and on October 11, 1960, was sentenced to one year in the penitentiary. On October 12,1960, a partial record was filed in the Supreme Court and an appeal granted, and certiorari was issued to bring up the entire record.
The appellant has filed in this Court a motion that he be allowed to proceed in forma pauperis. The motion is duly verified and appellant’s counsel certify that they are serving without compensation. The appellant has complied with the requirements of the law so as to be allowed to proceed in forma pauperis. See Thornsberry v. State, 192 Ark. 435, 92 S. W. 2d 203; and McCulloch v. Ballentine, 199 Ark. 654, 135 S. W. 2d 673; and see also Sec. 22-357 Ark. Stats., and Act No. 148 of 1953.
The Clerk of this Court is hereby ordered to forthwith direct a writ to the Clerk of the Garland Circuit Court and to the Court Reporter of the Garland Circuit Court who took down the testimony. The Reporter is directed to without delay transcribe and file the testimony with the Clerk of the Garland Circuit Court; and the Clerk of the Garland Circuit Court to complete without delay the entire transcript under the writ of certiorari issued to him in this case. The transcribing and filing of the testimony by the Court Reporter and the preparation of the transcript by the Clerk of the Court are to be furnished without expense; but this Court retains the right to hear resistance that may be made by any persons or governmental units desiring to resist the pauper affidavit of the appellant. | [
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George Rose Smith, J.
This is a suit by the appellant to recover total and permanent disability benefits at the rate of $200 a month. It was stipulated that if the jury found that the plaintiff was disabled for the entire period involved (extending from the thirtieth day after his injury in an automobile accident up to the date of trial) then he would be entitled to recover $2,975. The jury returned a general verdict for the plaintiff for only $2,250, and both parties appeal.
The opposing contentions could not be more completely at variance. On direct appeal the insured contends that there is no substantial evidence to justify the jury in reducing his award, so that we should either increase the judgment to the full amount or grant a new trial. On cross appeal the insurance company contends that there is no substantial evidence to support any recovery at all, so that the judgment should be reversed and the cause dismissed.
We first consider Alexander’s direct appeal. He is the president and principal stockholder of Alexander Incorporated, an automobile parts rebuilding business which at the time of trial had eighteen employes. Before his accident on February 11, 1958, Alexander, according to his own testimony, devoted from 12 to 15 hours of physical activity to the business seven days a week. When he was on the road Alexander put in long hours driving in Arkansas and neighboring states, calling upon dealers, garages, and wrecking yards. On these trips he bought used transmissions, weighing as much as 210 pounds, and loaded them into his car. He also solicited orders for the resale of transmissions after they had been rebuilt by his company. On alternate weeks Alexander stayed at home and worked in the shop at Little Rock. There he tore down used transmissions, which required strenuous exertion, stood for extended periods at the lathe, supervised and instructed his employees, attended to administrative work, etc.
In the accident Alexander suffered a broken nose, crushed chest, broken ribs, injured knees, and, most serious, a spinal injury. He was in the hospital for a few days and submitted to traction treatment for several months. After about two weeks Alexander was able to return to work for an hour a day, and by the time of the trial he was working 5 or 6 hours a day for five and a half days a week. He testified, and his doctor corroborated this, that he was unable to do heavy lifting, that he could no longer drive the long hours required for road trips, that he can stand at the lathe for no longer than 15 minutes, and that his activity has been curtailed in other respects that we need not detail. A medical witness for the defendant gave testimony from which the jury might have found that Alexander could perform all his former duties, although with restrictions which amounted in the witness’s opinion to a 5% disability to the body as a whole.
On direct appeal there are two answers to the insured’s contention that there is no basis for any award other than the full amount sued for. First, there is substantial evidence to support the view that Alexander is no longer totally disabled. The jury could, of course, have found that the insured was completely incapacitated soon after his accident, while he was in the hospital or in traction. But the testimony about his condition at the time of trial consists either of his own statements or of the opinions of others who depended at least in part upon what Alexander told them about himself. The jury was not compelled to accept this testimony as undisputed, especially in view of the opinion expressed by the appellee’s medical witness, and hence the verdict may represent the jury’s belief that the plaintiff is no longer totally disabled.
Secondly, where there is substantial evidence to support a finding for either side we are not at liberty to increase the amount of a general verdict to the full amount called for by the plaintiff’s theory of the case. In this situation we have recognized in Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49, and similar cases, that the partial award may be the result of a compro mise in the jury room. It is plain enough that if we undertook to tamper with such a verdict the arguments in favor of increasing it would be equally balanced by those in favor of decreasing it.
The question presented by the cross appeal is more difficult. It cannot be said that Alexander’s earning capacity has been completely destroyed. His efforts at the shop, even though on a part-time basis, contribute something to the earnings of the corporation. On the other hand, the jury may have believed that Alexander’s earning power has been substantially reduced. He testified that he had found it necessary to employ two new men to take care of the road trips, and he had increased his working force at the shop. It is really impossible to say to what extent Alexander’s earnings have been reduced by his injuries, for part of his income is attributable to his almost complete ownership of the business.
In view of the evidence the appellee insists that the case falls within our decisions holding that an insured is not totally and permanently disabled if he is able to earn a livelihood, even though his earning power is reduced. The appellant answers this argument by citing our cases that say the test is whether the insured can perform all the substantial and material duties of his occupation. In candor it must be conceded that all our decisions upon the subject cannot be harmonized.
Without undertaking to discuss every pertinent case in our reports we may illustrate the problem by examining a few of our principal cases supporting each of the divergent views. In Metropolitan Life Ins. Co. v. Guinn, 199 Ark. 994, 136 S. W. 2d 681, the insured had been a coal miner earning four or five dollars a day. As a result of a leg injury he could no longer work in the mines, but he was able to earn about $7.50 a week as a dishwasher and menial helper in a restaurant. We held that he was not totally and permanently disabled, because he was able to do at least some work for compensation. This case cannot be reconciled with Metropolitan Life Ins. Co. v. Hawley, 210 Ark. 855, 198 S. W. 2d 171, where the insured was compelled to give up his work as a newspaper circulation manager, but he was able to earn a reduced income as a part-time salesman. We held that the proof that the insured had been forced to resort to some other occupation, from which he could not earn a livelihood reasonably comparable to that which he was earning when he obtained the insurance, presented a jury question on the issue of total disability.
Several of our cases, like the one at bar, involve persons owning their own businesses. In General Am. Life Ins. Co. v. Chatwell, 201 Ark. 1155, 148 S. W. 2d 333, the insured conducted a paint and paper store. After his injury he continued to operate the business, but he could not carry out some of his former activities, such as lifting paint cans and rolls of paper, and he employed an additional clerk. We denied recovery, holding that Chatwell was not “wholly prevented from engaging in any gainful occupation whatever.” The same result was reached upon essentially similar facts in Mutual Life Ins. Co. of N. Y. v. Phillips, 202 Ark. 30, 149 S. W. 2d 940.
The cases just cited are hardly consistent with the more liberal construction that we placed upon disability policies in decisions before and after those cases. In Aetna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. 2d 310, the owner of a truck and produce business, although afflicted by arthritis, was able to carry on his occupation by taking his sons into partnership and limiting his own participation to supervisory and administrative duties. We upheld a finding of total and permanent disability. Similarly in Monarch Life Ins. Co. v. Riddle, 193 Ark. 572, 101 S. W. 2d 781, the proprietor of a beer distributorship lost the use of his right arm and so was unable to handle beer barrels or to drive a truck as he had formerly done. He was nevertheless able to continue his business, which expanded and prospered, by employing others to do the work under his supervision. A finding of total incapacity was upheld by a closely divided court. More recently we sustained a verdict for the insured in Franklin Life Ins. Co. v. Burgess, 219 Ark. 834, 245 S. W. 2d 210, despite the fact that the plaintiff was able to engage in limited activity as a clerk in a grocery store.
After reconsidering the whole question we are unwilling to follow cases such as the Guinn, Chatwell, and Phillips decisions, which hold that there can be no recovery even though the insured is unable to perform all the substantial and material duties of his occupation and even though his incapacity results in a substantial and demonstrable loss of earning power. In such a situation we think the proof presents a question of fact for the jury to decide. It is therefore our conclusion that the verdict for the appellant in this case is supported by substantial proof.
The appellee also suggests that the policy in question is unlike those considered in our prior cases, because it refers to a total loss of time and to a partial loss of time rather than to total disability. We have consistently refused to construe such clauses literally, for in that event the insured could recover only if he were continuously and helplessly confined to his bed. We perceive no real distinction between the language of the appellee’s policy and the clauses construed in our earlier decisions. Indeed, in some of our prior cases, such as Monarch Life Ins. Co. v. Riddle, supra, and Aetna Life Ins. Co. v. Orr, 205 Ark. 566, 169 S. W. 2d 651, the contract referred to a loss of time, but the opinions attached no importance to that particular wording.
Affirmed on direct and cross appeal. | [
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OPINION OF
THE COURT.
The defendant in error, in the year 1827, obtained several judgments against. Samuel K. Green, and in .February, 1832, issued a summons from the circuit court of Phillips county against the plaintiffs, under the act passed in November, 1831, entitled “An act to enable judgment creditors to collect their debts with more facility,” (Ter. Dig. 346), calling upon the plaintiffs, as garnishees, to state whether they were indebted to Green, or had any effects of his in their hands. Percifull and Ashley did not enter their appearance to the summons, and a jury being impanelled, to ascertain if anything was due to Green from Percifull and Ashley, or either of them, returned a verdict that Percifull was indebted to Green in a sum sufficient to pay the amount due from Green to the defendants, and that the claims were in the hands of Ashley, as an attorney, for collection. Upon this verdict the court rendered a joint judgment against Ashley and Percifull, for two hundred and ninety-six dollars, and ninety-three cents. It is contended that the judgment is erroneous for several reasons, and of this opinion is the court The act of 1831, under which the proceeding purports to be had, gives this remedy, “in all cases where any plaintiff shall obtain judgment.” Its words only comprehend judgments obtained after its passage, and this court cannot, by construction, give it a retrospective effect, and make it embrace judgments previously rendered. It is not for us to speculate on the supposed meaning and intention of the legislature. Where there is no doubt or ambiguity in the words used, there is no room for construction. Upon the finding of the jury, a judgment is rendered which is manifestly wrong. Percifull was indebted to Green, and the claim was in Ashley’s hands for collection. It was error to give a double judgment for a single debt. The statute places the judgment creditor, the defendant in this case, in the same situation which Green occupied. If the case were otherwise within the purview of the statute, she might go against Percifull, or might go against Ashley, if he were in default, but could not go against both for a debt due from one only. Judgment reversed. | [
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PER CURIAM.
Pleas in abatement require the greatest accuracy and precision in their form; they must be certain to every intent; they are never received with favor (1 Chit. PI. 491); they are dilatory, not reaching the merits of the action, and are not amendable; the plaintiff need not demur thereto when bad, but may treat them as nullities and sign judgment. 1 Tidd, Prae. 5S8. Tested by these rules, a plea in abatement which avers the suing out a former writ for the same cause, that it is still remaining in the clerk’s office, that the defendant was arrested on such writ and surrendered to a person who represented himself to be deputy sheriff, that the suit is still pending, as defendant believes, and concluding with a verification, is destitute of requisite precision and formal accuracy, and does not tender a certain issue. What issue is tendered? Is it the suing out of the writ; its existence in the clerk’s office; the arrest or surrender of the defendant, or the fact that T. was deputy sheriff, or that he represented himself to be such; that the suit is still pending, or that the defendant believes it to be pending? Such a plea’ is clearly insufficient, and may be treated as a nullity. Where it appears to the appellate court that improper evidence has been admitted on the trial of an issue in the inferior court, yet if upon the whole record the judgment is right, it will be affirmed. | [
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OPINION OF
THE COURT.
This was an action of debt brought in the Conway circuit court by the appellant against the ap-pellees, upon an injunction bond. The defendants craved oyer of the bond, set out the condition, and pleaded that after injunction for which the bond was given had been -dissolved, and before the institution of the suit, they paid the damages decreed against them by the order dissolving the injunction, and that upon an amended bill filed the injunction had been reinstated, was still pending, and a new bond given. To this plea a .general demurrer was filed by the plaintiff. The court overruled the demurrer, and gave judgment against the plaintiff for the costs, from which an appeal was taken to this court.
The reinstating of the injunction placed the cause in the court of chancery, in the same situation in which it stood previous to the dissolution of the injunction. It is a matter of daily occurrence to reinstate an injunction upon the filing of an amended bill. It does not thereby become a new cause, but in our opinion is the continuation of the same cause. The injunction bond is not broken so long as the injunction remains in force. The demurrer admits the injunction in this cause to be still in existence. To permit the party to go on and collect the amount of the bond, before it is ascertained whether the injunction will be dissolved or perpetuated, is too obviously contrary to justice to be consistent with law. Judgment affirmed. | [
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JIM HANNAH, Chief Justice.
| 'Appellant, James L. Steward, Jr., appeals the order of the Benton County Circuit Court denying his motion to set aside default judgment. On appeal, he contends that the circuit court erred in denying his motion to set aside default judgment because the judgment was void for insufficient service of process. Alternatively, Steward contends that the circuit court abused its discretion in refusing to set aside the default judgment due to mistake or excusable neglect on his part. Because we conclude that, under the facts of this case, the alternative method of service crafted by the circuit court was not reasonably calculated to give actual notice, we hold that the order granting default judgment was void, and we reverse the circuit court’s order denying Steward’s motion to set aside default judgment.
Following the February 13, 2009 death of his niece, Sarah Fennell, Steward launched a website, http://justice4sarah. wordpress.com/ (“Justice4Sarah”), to express his dissatisfaction with the investigation of Fennell’s cause of death. On February 16, 2012, appellee, Adam |2Kuettel, filed suit against Steward, alleging that Steward had published numerous defamatory statements about him concerning the death of Fennell on Justice4Sarah and other websites. Kuettel stated that all of Steward’s statements about him were false and requested, inter alia, an injunction ordering Steward to remove the Justice4Sa-rah website from the Internet and to remove any other postings from the Internet he had made concerning Kuettel.
Through a LexisNexis Accurint search, counsel for Kuettel determined that Steward’s last known address was 5713 Paula Road, Knoxville, Tennessee, 37912-1914. Two attempts to serve Steward were made at that address, but Steward no longer lived there. Counsel then attempted to contact Steward, as well as potential associates and relatives of Steward, via telephone, to ascertain Steward’s address, but she was unsuccessful.
On April 13, 2012, Kuettel filed a “Motion for Service Under Rule 4(e)(5),” requesting that the circuit court permit service of process by emailing the summons and complaint to Steward at [email protected], the address listed on the Justice4Sarah website. Kuet-tel averred that previous attempts at service were unsuccessful, and he stated that, after he had filed the lawsuit in this case, a reporter from the Benton County Daily Record emailed Steward at [email protected], and Steward responded to the email. Kuettel stated that, in addition to serving the summons and complaint via email, he would employ the use of Cyber Investigations Services, LLC, to ensure that the email and attached summons and complaint were in fact received. Attached to Kuettel’s motion was an affidavit from Bruce Anderson, a licensed private investigator and managing member of Cyber Investigations. Anderson averred that, to ensure that Steward received the summons and | ¡¡complaint attached to the email, Cyber Investigations would include a tracking pixel in the email sent to Steward that would transmit a confirmation to the sender when (1) the email was opened by the recipient, and (2) the attachments, here, the summons and complaint, were opened by the recipient.
In an order entered April 17, 2012, the circuit court granted Kuettel’s motion for alternative service, ruling that
Plaintiff [Kuettel] be permitted to serve Defendant James L. Steward, Jr., with the Summons and Complaint in this action via email to the email address of: [email protected], and ... that when Plaintiff receives confirmation via tracking pixel that the email giving notice of this lawsuit has been opened, sufficient service of process on the Defendant James L. Steward, Jr., will have occurred.
On June 21, 2012, Kuettel filed a motion for default judgment against Steward, requesting that the circuit court issue a declaratory judgment that Steward’s statements about Kuettel were false and that the circuit court issue a permanent injunction prohibiting Steward and his agents, servants, representatives, employees, attorneys, successors and assigns, and all others in active concert or participation with Steward (“Restrained Parties”) from making any false statements that defame or disparage Kuettel and mandating that the Restrained Parties take all action necessary to request removal from Internet search engines all defamatory, disparaging, libelous, and false statements about Kuettel that Steward had posted on the Internet. Kuettel contended that he was entitled to default judgment pursuant to Arkansas Rule of Civil Procedure 55(a)(1) (2014) because he had successfully served Steward by email on April 27, 2012, and because the deadline to file an answer or otherwise respond — May 29, 2012 — had passed with no response filed by Steward. In support of his |4assertion that he had successfully served Steward, Kuettel submitted a document containing the following information:
Your email message Case No. CV2012-270-5 sent on Friday, April 27, 2012 12:41:23 PM successfully read by on Friday, [email protected] April 27, 2012 3:27:00 PM.
Times Read: 2
Read duration: More than 3 minutes
Times Forwarded: This Email Hasn’t Been Forwarded Yet
Recipient IP Address: 71.236.33.165
Browser: Chrome 18.0.1025.162, Google Inc
Operating System: Windows Vista, Microsoft Corporation.
Supported Applications:
Referred From: Not Available
Accessed Via: Not Available
Recipient Language: en US, en;q=0.8
Recipient Location and ISP: US, TN, Knoxville, “Comcast Cable,” “Comcast Cable” Show Map
On June 28, 2012, the circuit court entered a default judgment in favor of Kuet-tel, declared that Steward’s statements about Kuettel on the internet are false, and issued a permanent injunction granting Kuettel’s requested relief.
Steward filed a motion to set aside default judgment on June 17, 2013, arguing that it should be set aside, pursuant to Rule 55(c)(2) because the judgment was void for | ¡¡insufficient service of process, or alternatively, it should be set aside pursuant to Rule 55(c)(1) due to mistake or excusable neglect. In an affidavit attached to his motion, Steward stated that, since launching the Justice4Sarah website, he had received thousands of emails, and that often those emails are spam and relegated to his spam folder. He stated that he vaguely remembered receiving an email from someone in Ohio claiming to be a lawyer and that he attempted to open the email but could not, so he discarded it. He also stated that he remembered that the email had attachments, but he was unable to open them. Steward said that, because he had received emails from individuals “often claiming to be lawyers, this one wasn’t special, with the exception that I was unable to read the attachments. I just assumed this was another fraud attempt and disregarded it.”
Kuettel responded that service was valid because his former attorney had emailed copies of the summons and complaint to [email protected] on April 27, 2012 and that the tracking pixel confirmed that the email was successfully read by [email protected] on April 27, 2012. Attached to Kuettel’s response was the “Recipient Tracking Information” he had submitted with his motion for default judgment and a screenshot of an email that he alleged had been sent to [email protected]. The undated email depicted in the screenshot contained the following subject line: “Case No. CV2012-270-5.” The email stated, “Attached please find the Summons and Complaint in the above-referenced matter.” The email included an attached file, which was named Case No. CV2012-270-5.pdf.
At a hearing on the motion to set aside default judgment, Steward argued that the | ¡¡alternative method of service permitted by the circuit court did not afford him his due-process rights of notice and an opportunity to be heard. He pointed out that, although Anderson, the private investigator, stated in his affidavit that the tracking pixel would return confirmation when both the email and the attachments were opened, the report attached to the motion for default judgment mentioned nothing about attachments having been opened. As such, Steward contended, there was no proof that he had ever received service of process. Kuettel responded that the service of process by email was proper because it was reasonably calculated to give actual notice. In addition, Kuettel contended that service was valid because he had fully complied with the requirements of the circuit court’s order granting his motion for alternative service under Rule 4(e)(5) of the Arkansas Rules of Civil Procedure. After the arguments, the circuit court asked Kuettel if Anderson could verify whether the attachments had been opened. Kuettel was uncertain, so the circuit court left the record open for ten days to allow Kuettel to supplement the record with a response. Thereafter, Kuet-tel submitted an affidavit from Anderson stating that the email had been opened twice and that the person opening the email “spent more than 3 minutes with the email before closing it, but the attachments were not opened.” According to Anderson, “[t]he attachments were standard.pdf documents, so if someone at tempted to open them at all, even if they could not read them, it would have triggered the tracking pixel. Therefore, it is my belief based on review of the tracking pixel that the recipient of the email did not try to open the attachments.”
In an order entered on October 31, 2018, the circuit court denied the motion to set aside default judgment. Steward appeals.
17Pefault judgments are governed by Rule 55 of the Arkansas Rules of Civil Procedure. That Rule provides, in pertinent part,
(a) When Entitled. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, judgment by default may be entered by the court.
(c) Setting Aside Default Judgments. The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)the judgment is void; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment .set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.
This court has recognized that default judgments are not favored by the law and should be avoided when possible. See, e.g., Se. Foods, Inc. v. Keener, 335 Ark. 209, 213, 979 S.W.2d 885, 887 (1998). Because of its harsh and drastic nature, which can result in the deprivation of substantial rights, a default judgment should be granted only when strictly authorized and when the party affected should clearly know he is subject to default if he does not act in a required manner. Id., 979 S.W.2d at 887.
Our standard of review for an order denying a motion to set aside default judgment depends on the grounds upon which the appellant claims the default judgment should be set aside. In cases in which the appellant claims that the default judgment is void, our review is de novo, and we give no deference to the circuit court’s ruling. See, e.g., Nationwide Ins. Enter. v. Ibanez, 368 Ark. 432, 435, 246 S.W.3d 883, 886 (2007). In all other cases, we review an order denying a motion to set aside default for abuse of discretion. Id., 246 S.W.3d at 886.
Steward contends that the circuit court erred in denying his motion to set aside default judgment because the judgment was void for insufficient service of process. Service of process is necessary in order to satisfy the due-process requirements of the United States Constitution. See, e.g., Meeks v. Stevens, 301 Ark. 464, 466, 785 S.W.2d 18, 20 (1990). Therefore, when sufficient notice of an action has not been given, and a default judgment has followed, a motion to set aside the judgment must be granted. Id. at 466-67, 785 S.W.2d at 20.
Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. E.g., Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 709, 120 S.W.3d 525, 530 (2003). Our case law is equally well settled that service requirements imposed by rules of this court, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. See id., 120 S.W.3d at 530.
In this case, the circuit court granted a motion for alternative service pursuant to Rule 4(e)(5), permitting Kuet-tel to serve Steward with the summons and complaint in this action via email to the email address listed for Steward on Justice4Sarah. Rule 4(e)(5) states that, “[w]henever the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made [a]s directed by the court.” As indicated by the rule, alternative methods of service directed by the court must comport with due-process requirements. To meet this requirement, the method of service crafted by the court must be “reasonably calculated, under all the circumstances, to apprise interested parties |flof the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust, 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). “[W]hen notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Id. at 315, 70 S.Ct. 652.
Assuming, without deciding, that service of process by email may be allowed under Rule 4(e)(5), we cannot say that, under the facts of this case, the alternative method of service crafted by the circuit court was reasonably calculated to give actual notice of the lawsuit. Here, the circuit court ruled that when Kuettel received a confirmation via tracking pixel that the email giving notice of this lawsuit had been opened, sufficient service of process on Steward would have occurred. The circuit court’s order did not contain any requirements to better ensure the effectiveness of the notice.
The alternative service of process in this case was insufficient because it was not reasonably calculated to give actual notice to Steward. A default judgment is void under Rule 55(c)(2) if the defendant was improperly served under Rule 4. E.g., S. Transit Co. v. Collums, 333 Ark. 170, 175, 966 S.W.2d 906, 908 (1998). Because the default judgment was void because of insufficient service of process, the circuit court erred in denying Steward’s motion to set aside default judgment.
Reversed. | [
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Ed. F. McFaddin, Associate Justice.
Appellee, A. J. Hill, filed this action for damages for malicious prose cution, naming as defendants Every Mendenhall, F. P. Garvan, and Malvern Brick & Tile Company. There was a jury verdict and judgment for the plaintiff against all of the defendants for $750.00 actual damages and $250.00 punitive damages; and this appeal challenges the said judgment.
Malvern Brick & Tile Company (hereinafter sometimes called “Malvern”) — as its name implies — is a company engaged in the manufacture of brick and tile in Malvern, Arkansas; F. P. Garvan at all times herein involved was the executive vice-president of the said Company; and Every Mendenhall was an employee of the said Company. In September 1959 there arose a labor dispute between Malvern and its employees. Some of the workers went out on strike and formed a picket line, but Mendenhall continued to work notwithstanding the strike. Some time during the night of October 10, 1959 several shots were fired into the home of Mendenhall, and he saw some persons running away from his house, entering an automobile, and driving away. Mendenhall drove in his car from his home to a store nearby for the purpose of calling law enforcement officers to make an investigation. After he reached the store and as he was enroute from his car to the telephone, Mendenhall was assaulted and beaten by a group of persons. He claimed to have recognized his assailants. Mendenhall’s wife and father-in-law had followed him in another car, and they arrived on the scene in time to stop the fight before serious injuries were suffered by anyone.
The foregoing occurred on Saturday night, October 10,1959. On Monday morning, October 12th, Mendenhall went to the office of Malvern and reported the occurrence to Mr. Garvan and named the persons whom he said had assaulted him. After a short time, Garvan and another employee took Mendenhall and another worker to the office of the Prosecuting Attorney in Malvern; and Mendenhall related what he said the facts were, and signed an affidavit for a warrant of arrest against seven persons, being: J. L. Watkins, Charlie James Carroll, Ralph T. Junior, J. W. Blackmon, Willie Carroll Williams, M. T. Dedmon, and A. J. Hill. The persons named in the affidavit were charged with assault and battery. The prosecution was not on information filed by the Prosecuting Attorney, but on an affidavit for warrant of arrest made by Mendenhall; and Malvern posted approximately $100.00 as advance court costs to insure the prosecution of the seven named persons. Bach was arrested and tried in the Municipal Court of Malvern; and all of those named were found guilty of assault and battery with the exception of A. J. Hill: he was acquitted because he testified that he was not present at the time and place when Mendenhall was assaulted.
Then, on January 21, 1960, A. J. Hill filed the present action for malicious prosecution against Mendenhall, G-arvan, and Malvern. As aforesaid, the verdict and judgment in the malicious prosecution case was in favor of Hill and against each of the defendants for $750.00 actual damages and $250.00 punitive damages; each of the defendants has appealed; and each urges in this Court that the evidence was insufficient to support the verdict. Before discussing the situation as to each appellant, it is well that we state the applicable law. In an action for malicious prosecution the burden is on the plaintiff to establish that the defendant acted maliciously and without probable cause, in prosecuting the plaintiff. In short, malice and want of probable cause are essential elements in an action for malicious prosecution. Foster v. Pitts, 63 Ark. 387, 38 S. W. 1114; Kable v. Carey, 135 Ark. 137, 204 S. W. 748, 12 A.L.R. 1227; Keebey v. Stifft, 145 Ark. 8, 224 S. W. 396; Wm. R. Moore D. G. Co. v. Mann, 171 Ark. 350, 284 S. W. 42; Gazzola v. New, 191 Ark. 724, 87 S. W. 2d 68. At the close of the testimony, each defendant moved for an instructed verdict; and the question presented is, whether the evidence was sufficient to take the case to the jury, either (1) as against Mendenhall, or (2) as against Garvan and Malvern. We discuss these points separately.
I. Was The Evidence Sufficient To Support The Verdict Against Mendenhall? We have previously sketched some of the background facts, but there were other facts shown which have a direct bearing on the question here posed. Mendenhall caused Hill’s arrest for assault and battery alleged to have been committed on Mendenhall on Saturday night, October 10th. Hill was acquitted of the charge of assault and battery; and then instituted the present malicious prosecution proceedings, claiming that Mendenhall, in prosecuting Hill for assault and battery, was guilty of malice and had acted without probable cause. Watkins, Junior, Blackmon, Carroll, Williams, and Dedmon were the other six persons named by Mendenhall in his affidavit for the warrant of arrest. Each of those persons was convicted; and yet in the present case each one of those persons testified that A. J. Hill was not present when Mendenhall was assaulted. Hill and his wife testified that they were either at home or visiting with friends a short distance from their home on the night of October 10th and were all the time a considerable distance from the place where Mendenhall was assaulted. Thus, there was evidence from which the jury could have found — as it apparently did — that Hill was not a party to the attack on Mendenhall.
Did Mendenhall have probable cause for naming Hill as one-of his attackers? If Mendenhall had testified that he was so excited by the attack that he mistook some other person for Hill, then the jury might have thought that Mendenhall had acted with probable cause. But at this malicious prosecution trial, Mendenhall stoutly insisted that Hill was one of his attackers, and Mendenhall called his wife and his father-in-law to substantiate his testimony as to Hill’s participation in the attack. Thus, when the jury in the case at bar found that Hill was not one of Mendenhall’s assailants, the jury could have also found that Mendenhall had acted without probable cause in naming Hill, and also the jury might well have inferred that Mendenhall had named Hill as one of the assailants and obtained the supporting testimony, all out of a spirit of malice, if there was no probable cause shown for naming Hill. We have several cases which say that malice may be inferred when there is lack of probable cause, even though there was no express showing of malice. Hall v. Adams, 128 Ark. 116, 193 S. W. 520; Williams v. Orblitt, 131 Ark. 408, 199 S. W. 91; and La. O. Ref. Corp. v. Yelton, 188 Ark. 280, 65 S. W. 2d 537.
To summarize: in the malicious prosecution case Mendenhall attempted to prove Hill’s guilt in the assault case as a complete defense to the malicious prosecution action (Whipple v. Gorsuch, 82 Ark. 252, 101 S. W. 735, 10 L.R.A., N.S. 1133); and when Mendenhall failed to prove such guilt, the failure showed want of probable cause, and also boomeranged into an inference of malice. We have detailed sufficient evidence to support the verdict against Mendenhall on the point urged by him.
II. Was The Evidence Sufficient To Support The Verdict Against Garvan And Malvern¶ As heretofore stated, before Hill could recover from these defendants he had to establish (1) that they acted without probable cause and (2) that they acted with malice, in aiding Mendenhall as they did: i. e., taking him to the Prosecuting Attorney, advancing the court costs, and being present — if they were — at the criminal trial. See Gordon v. McLearn, 123 Ark. 496, 185 S. W. 803. What is the evidence against Garvan and Malvern? Mendenhall told them that Hill was one of his assailants. Not only did Mendenhall tell them that Hill was one of the assailants, but Mendenhall made an affidavit to that effect. Garvan and Malvern acted only as a good employer would have acted under such circumstances. In malicious prosecution cases we have defined the words, "probable cause,” as, “such a state of facts known to the prosecutor, or such information received by him from sources entitled to credit, as would induce a man of ordinary caution and prudence to believe, and did induce the prosecutor to believe, that the accused was guilty of the crime alleged, and thereby caused the prosecution.” Hitson v. Sims, 69 Ark. 439, 64 S. W. 219; Whipple v. Gorsuch, 82 Ark. 252, 101 S. W. 735, 10 L.R.A., N.S. 1133. "When Mendenhall told Garvan and Malvern that he had been assaulted, he also told them that bullets had been fired into his house. Garvan went to the house and found where the bullets had been fired into it. It was not Garvan’s duty to consult with each of the named assailants before taking Hill’s word for the statements. Kans. & Tex. Coal Co. v. Galloway, 71 Ark. 351, 74 S. W. 521, 100 Am. St. Rep. 79. In the annotation in 43 A. L. R. 2d p. 1048, cases from several jurisdictions are cited to sustain this statement: “Where the defendant in good faith has relied on an apparently sound identification by some other person, the Courts have held that there is no liability in malicious prosecution.”
Furthermore, the evidence established without contradiction that when Mendenhall went to the office of Malvern on Monday morning, October 12th, and told Garvan of the assault, then before doing anything, Gar-van consulted immediately with the regular retained attorneys of Malvern. Garvan and Malvern relied on the advice of competent and qualified counsel. We have a long list of cases in Arkansas — and the general rule over'the country is to the same effect — that when one recites the full facts to a competent attorney and acts on the advice of such attorney, such is a complete defense against the charge of acting without prohable cause. Kans. & Tex. Coal Co. v. Galloway, 71 Ark. 351, 74 S. W. 521, 100 Am. St. Rep. 79; L. B. Price Merc. Co. v. Cuilla, 100 Ark. 316, 141 S. W. 194; Redmon v. Hudson, 124 Ark. 26, 186 S. W. 312; Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S. W. 2d 455. In view of these cases, it is clear that Garvan and Malvern, by acting on the advice of competent counsel, entirely dispelled any claim that they acted without probable cause; and until Hill could establish that Garvan and Malvern acted without probable cause, he could not hold them liable in this malicious prosecution action. Therefore, as to Garvan and Malvern, the judgment is reversed and dismissed.
The net result of the entire case is, that the judgment against Mendenhall is affirmed at the cost of Mendenhall; and that the judgment against Garvan and the Malvern Brick & Tile Company is reversed and dismissed at the cost of Hill.
Holt, Ward & Robinson, JJ., dissent as to the affirmance.
It is conceded that the first affidavit for warrant of arrest was defective in failing to have the completed jurat; and that an affidavit containing the same names was subsequently completed.
In 43 A.L.R. 2d p. 1048, there is an annotation entitled: “Liability in malicious prosecution for instigation or continuation of prosecution of plaintiff mistakenly identified as person who committed an offense.”
Here is Garvan’s testimony, -which stands nncontradicted:
“. . . he showed me a bullet that had been removed from a wall outside. I called Mr. Glover, the Prosecuting Attorney; but, before doing that, I called Wootton, Land and Matthews over in Hot Springs.
Q. For what purpose?
A. To ask them as to what procedure we should take, as they are counsel for the firm, for the Malvern Brick & Tile Company.
Q. Mr. Garvan, you, I believe, are an attorney yourself, are you not?
A. I am.
Q. At the time that you were involved in this incident were you making these legal decisions and judgments for yourself, or were you relying upon the attorneys’ advice?
A. No. I relied upon the attorneys’ advice, sir. I do not act as attorney for the company; I act as an executive for the company and we have outside attorneys for the company.
Q. Were you directed by your attorneys as to what should be done?
A. Yes.
Q. Did you follow their advice and directions that were given to you?
A. I did.” | [
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WAYMOND M. BROWN, Judge.
[iOn appeal, appellant argues that the circuit court erred by (1) allowing the State’s expert witness to testify regarding whether a personality disorder is a mental disease or defect and beyond the scope of rebuttal testimony; (2) denying counsel the ability to inform the jurors of the consequences of a mental disease or defect defense; and (3) limiting appellant’s expert witness’s testimony to her first report. We affirm.
Appellant shot and killed Sharren Sue Richards at the Welcome Center rest area on Interstate 40 at Van Burén on the morning of May 1, 2012. Charles Scott, a truck driver who was at the rest area, saw Richards putting trash into the back of a city utility truck. Appellant’s pickup truck was blocking a rest-area roadway. Scott saw Richards knock on the door of appellant’s truck and then put her hands inside appellant’s truck. At that point, Scott heard gunfire and saw Richards fall to the ground. He called 911.
12At a November 25, 2013 pretrial hearing, appellant moved in limine to exclude Dr. Paul DeYoub’s anticipated testimony that personality disorders were not mental diseases; the motion was denied. At the trial by jury on the matter, the shooting was not disputed. However, appellant asserted the affirmative defense of not guilty by mental disease or defect. Appellant moved for a directed verdict at the close of the State’s case; it was denied. Appellant renewed her motion in limine; it was again denied. Appellant was convicted of second degree murder and was sentenced to thirty years in the Arkansas Department of Correction. This timely appeal followed.
I. Expert Witness Testimony
Pursuant to Arkansas Code Annotated section 5-2-312, it is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged she lacked capacity as a result of mental disease or defect to conform her conduct to the requirements of law or appreciate the criminality of her conduct. A defendant bears the burden of proving the affirmative defense of mental disease or defect by a preponderance of the evidence. The jury is the sole arbiter of whether or not a defendant has sustained her burden of proving the insanity (or mental disease or defect) defense by a preponderance of the evidence. This court’s standard of review of a jury verdict rejecting the defense of Rmental disease or defect is whether there is any substantial evidence to support the verdict.
Appellant argues that the court erred in permitting Dr. Paul DeYoub to testify regarding whether a personality disorder is a mental disease or defect. Relatedly, appellant argues that the circuit court erred in allowing Dr. DeYoub to testify beyond the scope of Dr. Patricia Walz’s testimony during his rebuttal testimony.
A. Regarding Whether a Personality Disorder is a Mental Disease or Defect
The admission or rejection of testimony is a matter within the circuit court’s sound discretion and will not be reversed on appeal absent a manifest abuse of that discretion and a showing of prejudice to the defendant. This high threshold does not simply require error in the trial court’s decision but rather that the trial court act improvidently, thought lessly, or without due consideration. The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact in issue.
14An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the ability of the trier of fact to understand and draw its own conclusions. Where the introduction of expert testimony would invade the function of the jury or where it does not help the jury, the testimony is not admissible. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. To be otherwise admissible, the evidence, according to Arkansas Rule of Evidence 403, must' be helpful to the jury and not tend to be confusing. Although opinion testimony on the ultimate issue is admissible, if the opinion mandates a legal conclusion or “tells the jury what to do,” the testimony should be excluded.
Appellant’s expert witness, Dr. Patricia Walz, testified that at the time of the offense, appellant was suffering from paranoid, schizoid, and schizo-affective personality disorders) all located in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), and that appellant’s personality disorders would fall under the uncommon “not otherwise specified” category. She opined that she did not think appellant “could have conformed her conduct to the law at the time” of the offense and that she believed ^appellant was “suffering from a psychotic break” at the time of the offense. Dr. Walz testified that she believed appellant was “suffering from a mental disease at the time of the shooting.”
In rebuttal, the State presented testimony from Dr. DeYoub in which he “concluded that there was no mental disease at the time [of the crime], and [he] referenced that [appellant] had a diagnosis of personality disorder at the time of the offense and opined that [a personality disorder] was not a mental disease.” Specifically addressing Dr. Walz’s opinion, Dr. DeYoub noted that mental disorders were “always” found under Axis I and that Dr. Walz diagnosed appellant with personality disorder on Axis II. Furthermore, he noted that although one could argue that any diagnosis is a mental disease according to the statute, “no one does as it’s not stringent enough.” He added that he had “never seen in 15 years of doing the exam and 35 years of practice, anyone saying that a personality disorder as the only diagnosis at the time of the offense, constituted a mental disease.”
Dr. Walz opined on whether a personality disorder was a mental disease when she testified that appellant suffered from per sonality disorders and was suffering from a mental disease at the time of the offense. While arguing that Dr. DeYoub should not have been permitted to testify that a personality disorder was not a mental disease, appellant does not address why Dr. Walz also should not have been permitted to essentially testify that a personality disorder was a mental disease. In any case, it is clear that Dr. DeYoub was not testifying to the ultimate issue to be decided by the trier of fact, namely, whether appellant legally suffered from a mental disease, but to his opinion of what medically constitutes a |fimental disease as classified by the DSM-IV. This form of testimony has been previously accepted by our appellate courts. Accordingly, his testimony simply embraced the issue of mental disease from a medical point of view; it did not mandate a legal conclusion. We cannot find that the circuit court abused its discretion in permitting appellant to testify regarding his opinion of whether appellant suffered from a mental disease.
B. Regarding the Scope of Dr. DeY-oub’s Rebuttal Testimony
Genuine rebuttal evidence consists of evidence offered in reply to new matters. The evidence must be responsive to that which is presented by the defense. It is within the trial court’s discretion whether to admit rebuttal testimony, and the appellate court will not reverse this determination absent an abuse of that discretion.
| 7In her brief, appellant argues that Dr. DeYoub’s testimony regarding whether a personality disorder was a mental disease or defect was improper because Dr. Walz “was never asked at trial regarding her opinion on personality disorders as mental diseases or defects, nor did she approach that subject in her testimony.” However, she admits that Dr. Walz “did opine that [appellant] had a personality disorder and that she suffered from a mental disease or defect, and submitted a report on the same.” Dr. Walz’s testimony only implied that a personality disorder was a mental disease. However she explicitly states the same in her report. In a section of that report labeled “Opinion on the presence or absence of mental disease or defect at the time of the offense[,]” Dr. Walz made the following statement:
In my opinion, at the time of the alleged offense, she suffered from a mental disease of personality disorder with paranoid thinking, schizoid personality style, and odd thinking.
Appellant appears to be arguing by implication that Dr. DeYoub’s rebuttal testimony should have been limited only to what Dr. Walz testified to and not to what was in her report. We do not agree.
None of the cases cited by appellant are on point. The State points out that Arkansas Code Annotated section 16-89-125(d)(3) states that after the matter is submitted |sto the jury, “upon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause.” Near the close of her testimony, Dr. Walz’s January 28, 2013 report was admitted into evidence.
Accordingly, because Dr. Walz opined that a personality disorder was a mental disease in her report and her report was entered into evidence, her opinion, despite being written and not oral, was evidence properly subject to rebuttal. Dr. DeY-oub’s testimony contradicted Mr. Walz’s opinion that a personality disorder is a mental disease. No error occurred, and we affirm on this point.
II. Ability to Inform Jurors of the Consequences of Not Guilty by Reason of Mental Disease or Defect Verdict
For her second point on appeal, appellant argues that the circuit court erred in denying counsel the ability to inform the jury of the consequences of a mental disease or defect defense during voir dire. She asserts that this was unduly restrictive. During voir dire below, appellant responded to the State’s objection to appellant’s counsel’s line of questioning as to the consequences of a not guilty by reason of mental disease or defect verdict. However, appellant never objected to having her questioning limited. Furthermore, she did not object to impaneling the jury, stating that the jury was “good” | sfor her. Our supreme court has held that an appellant is proeedurally barred from claiming on appeal that the trial court unduly restricted her voir dire questioning when she failed to object to the restriction placed on her questioning and accepted the jury panel as “good.” Accordingly, we affirm on this point.
III. Limiting Dr. Walz’s Testimony to her First Report
For her final point on appeal, appellant argues that the circuit court erred in limiting appellant’s expert witness’s testimony to her first report. The State moved in limine to exclude any testimony and evidence relating to appellant’s competency to stand trial and her current mental functioning, specifically requesting that Dr. Walz’s second report be excluded in its entirety, asserting that it dealt with appellant’s ability to assist her attorney in her defense only. The court granted the State’s motion.
The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse that decision absent a manifest abuse of discretion. The abuse-of-discretion standard is a high threshold that does not simply require error in the circuit court’s decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. In addition, we will not reverse a ruling on the admission of evidence absent a showing of prejudice.
| inWhile the circuit court granted the State’s motion, excluding not only Dr. Walz’s second report but also redacting Dr. DeYoub’s report regarding appellant’s current mental functioning, the court also permitted appellant’s counsel to elicit testimony of Dr. Walz’s present-sense impression of appellant’s current mental state during Dr. Walz’s interview of appellant as long as the testimony related back to her condition at the time of the offense. Accordingly, no prejudice is shown. The court did not abuse its discretion.
Affirmed.
WYNNE and GRUBER, JJ„ agree.
. Marcyniuk v. State, 2010 Ark. 257, at 10, 373 S.W.3d 243, 251 (citing Ark.Code Ann. § 5-2-312(a)(1)(A) & (B) (Repl.2006)).
. Id. (citing Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007)).
. Davis v. State, 368 Ark. 401, 406, 246 S.W.3d 862, 867 (2007) (citing Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998) (quoting Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992))).
. Gwathney v. State, 2009 Ark. 544, at 3-4, 381 S.W.3d 744, 747 (citing Navarro v. State, 371 Ark. 179, 190 264 S.W.3d 530, 538 (2007)).
. Solomon v. State, 2010 Ark. App. 559, at 9, 379 S.W.3d 489, 494 (citing Phavixay v. State, 373 Ark. 168, 282 S.W.3d 795 (2008)).
. Williams v. State, 374 Ark. 282, 287 S.W.3d 559 (citing Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004)).
. Strickland v. State, 2010 Ark. App. 599, at 6, 378 S.W.3d 157, 160-61 (citing Ark. R. Evid. 702 (2010); Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995)).
. Vance v. State, 2011 Ark. 243, at 28, 383 S.W.3d 325, 343 (citing Buford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006)).
. Id.
. Clay v. State, 2009 Ark. App. 740, 361 S.W.3d 286 (citing Ark. R. Evid. 704 (2002)).
. Bruner v. State, 2013 Ark. 68, at 13, 426 S.W.3d 386, 393 (quoting DeGracia v. State, 321 Ark. 530, 532, 906 S.W.2d 278, 279 (1995)).
. Simpson, supra (citing Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998)).
. See Lard v. State, 2014 Ark. 1, 431 S.W.3d 249 (Our supreme court affirmed where a psychologist and psychiatrist, both testifying for the State, testified that appellant had a diagnosis of antisocial personality disorder and did not have a mental disease or defect); Lands v. State, 2012 Ark. App. 616, 424 S.W.3d 390 (This court affirmed where a forensic psychologist testifying for State testified that appellant did not have a mental disease or defect while forensic psychiatrist testifying for appellant testified that appellant was affected by a mental disease).
. Furthermore, appellant makes assertions that Dr. DeYoub gave an opinion as to an unnamed Arkansas statute and "told the jury how they should read the statute[,J” but she names no specific statute and provides no citation to any supporting authority. This court will not entertain arguments unsupported by any legal authority. Strain v. State, 2012 Ark. 184, at 6, 423 S.W.3d 1, 5.
. Gilliland v. State, 2010 Ark. 135, at 11, 361 S.W.3d 279, 285 (citing Pyle v. State, 314 Ark. 165, 178, 862 S.W.2d 823, 830 (1993) (citing Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986))).
. Id. (citing Pyle, 314 Ark. at 178-79, 862 S.W.2d at 830).
. Id. (citing Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996); Kincannon v. State, 85 Ark.App. 297, 151 S.W.3d 8 (2004)).
.Our supreme court affirmed the circuit court in Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996), finding that a surprise rebuttal witness was a proper rebuttal witness where the State disclosed the witness. Our supreme court affirmed the circuit court in Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995), finding that a rape victim’s testimony identifying the appellant’s voice was proper rebuttal testimony after the appellant took the stand and denied committing the rape. Our supreme court affirmed the circuit court in Landrum v. State, 320 Ark. 81, 894 S.W.2d 933 (1995), where it dealt with character evidence, finding that appellant had not put his character in issue and that the State was attempting to impeach him by extrinsic evidence on a collateral matter elicited on cross-examination, which was clearly improper. Our supreme court reversed the circuit court in Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986), finding that the rebuttal witness was not a “true rebuttal” witness where her testimony impeached responses drawn from appellant during his cross-examination; the witness should have been presented in the State’s case-in-chief. Our supreme court reversed the circuit court in Anthony v. State, 332 Ark. 595, 967 S.W.2d 552 (1998), finding that an appellant’s testimony from a prior trial was not proper rebuttal testimony because it did not contradict witness testimony or other evidence; it should have been presented during the State’s case-in-chief.
. (Repl.2005).
. Christopher v. State, 340 Ark. 404, 10 S.W.3d 852 (2000).
. Maiden v. State, 2014 Ark. 294, at 4, 438 S.W.3d 263, 268 (citing Laswell v. State, 2012 Ark. 201, at 17, 404 S.W.3d 818, 828).
. Id. (citing Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004)).
.Id. (citing Davis v. State, 350 Ark. 22, 38, 86 S.W.3d 872, 882 (2002)). | [
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PAUL E. DANIELSON, Associate Justice.
| Appellants Fort Smith School District; Greenwood School District; Alma School District; and Van Burén School District (collectively “Fort Smith”), appeal from the circuit court’s order denying their motion to intervene as a matter of right in the litigation of appellee Deer/Mt. Judea School District (“Deer/Mt. Judea”). The sole point on appeal is that the circuit court erred in denying intervention as a matter of right. This court has previously recognized a right to appeal from the denial of a motion to intervene as a matter of right under Arkansas Rule of Appellate Procedure-Civil 2(a)(2). See Duffield v. Benton Cnty. Stone Co., Inc., 369 Ark. 314, 254 S.W.3d 726 (2007). We affirm the circuit court’s order.
The instant litigation stems from Deer/ Mt. Judea’s suit alleging inequities in the State’s | ¡.school-funding practices. In its original complaint, Deer/Mt. Judea, on its own behalf and on behalf of its students and taxpayers, sought to enjoin actions by the State that Deer/Mt. Judea claimed violated state law and the Arkansas Constitution and would inevitably result in the closure of the district’s schools. Specifically, Deer/Mt. Judea claimed that the State had acted contrary to state law and the constitution “by failing to provide small, remote schools adequate funding and by closing small, remote schools without considering whether their students will be denied a substantially equal opportunity for an adequate education due to excessive transportation time.” Deer/Mt. Judea prayed for a variety of relief, including (1) a declaration that the State’s school-funding system was inequitable and inadequate; (2) a declaration that the State’s education system was inequitable and inadequate; (3) an injunction directing the State to comply with its constitutional mandates such as fully funding and implementing a system for evaluating and improving student achievement, fully funding and implementing a system for professional development, adopting a statewide system of teacher compensation to attract and retain teachers in small and remote schools, establishing a maximum transportation time for students and a process for identifying those students, removing transportation funding from foundation funding and adopting a funding system specifically for the transportation of students, removing teacher-retirement and teacher-health-insurance funding from foundation funding and paying those costs directly on behalf of the districts, and adopting rules and regulations to better enable a district unable to raise monies for its portion of facilities maintenance to pay its portion; (4) an injunction prohibiting the closure of small, remote schools and consolidating or annexing small, remote districts until the |RState has remedied the constitutional violations alleged; (5) a declaration that section 82 of Act 293 of 2010 constituted local or special legislation; and (6) an injunction prohibiting the disbursement of funds pursuant to section 32 of Act 293.
Following the circuit court’s grant of a motion to dismiss Deer/Mt. Judea’s adequacy claims by defendant Governor Mike Beebe and the circuit court’s grant of summary judgment to Deer/Mt. Judea on its special-legislation claim, Deer/Mt. Judea appealed the circuit court’s rulings to this court. In Deer/Mt.Judea School District v. Kimbrell, 2013 Ark. 393, 430 S.W.3d 29, this court reversed the circuit court’s dismissal of some of Deer/Mt. Judea’s claims and remanded. This court drew a distinction between Deer/Mt. Judea’s claims, stating that
[s]ome of the acts or omissions complained of occurred after we had released the mandate in Lake View [School District No. 25 v. Huckabee, 370 Ark. 139, 257 S.W.3d 879 (2007) ]. The circuit court abused its discretion in dismissing these claims. However, those acts or omissions that were brought or could have been brought in the previous school-funding cases are barred by res judicata, and the circuit court did not err in dismissing them.
2013 Ark. 393, at 19, 430 S.W.3d at 44. We then held that the “circuit court erred in dismissing [Deer/Mt. Judeaj’s claims ... relating to the adequacy reports and evaluations, COLAs, transportation funding, and facilities funding based on res judicata.” Id. at 23, 430 S.W.3d at 46.
On February 12-, 2014, Fort Smith filed its motion to intervene in the litigation. The motion alleged that the school districts seeking to intervene operated kindergarten-throughjtwelfth-grade4 schools in Crawford and Sebastian Counties, serving anywhere from 3,278 students in Alma to approximately 14,700 students in Fort Smith. Fort Smith asserted that it agreed with Deer/Mt. Judea’s contention that the State had violated state law by failing to comply with Act 57 of 2003 in evaluating whether a substantially equal opportunity for an adequate education was being afforded to Arkansas’s students. The motion further alleged that
[a]ll of the prerequisites for intervention as of right are present here. Deer/Mt. Judea schools are small, remote schools located in mountainous and sparsely populated Newton County, Arkansas, who contend State actions related to their funding will inevitably result in their closure if not corrected. By contrast, Intervenors are larger schools at the other end of the spectrum located in the more populated areas of Crawford and Sebastian Counties, Arkansas, whose funding Deer/Mt. Judea points to as being in excess of what is needed at the expense of small, remote schools like Deer/Mt. Judea.
Fort Smith noted this court’s decision in Deer/Mt Judea affirming the dismissal of some of Deer/Mt. Judea’s claims because they could have been brought in prior school-funding cases that Fort Smith claimed Deer/Mt. Judea was not a party to. It claimed that, without intervention, it could suffer the same fate and that its interests in any adjustments made to the school-funding system could be foreclosed as a result of the litigation. Attached as an exhibit to the motion was Fort Smith’s complaint in intervention. Deer/Mt. Judea responded to Fort Smith’s motion, requesting that the motion be denied. Deer/ Mt. Judea asserted that the motion was untimely and that Fort Smith’s interests were adequately represented by the existing parties.
A hearing on Fort Smith’s motion was held on June 3, 2014. At the hearing, the circuit court heard arguments from Fort Smith and Deer/Mt. Judea, while counsel for the |sState Defendants informed the circuit court that they did not have a position on Fort Smith’s motion. At the conclusion of the hearing, the circuit court ruled that it was going to deny the motion because it was an individual lawsuit affecting only Deer/Mt. Judea. It subsequently entered an order denying the motion, in which it made the following findings:
1. The Districts’ motion is untimely. Plaintiff filed its original Complaint on 3 December 2010. Defendants moved to dismiss Plaintiffs Complaint on 18 January 2011. If Plaintiff did not adequately represent the Districts’ interests, the Districts should have intervened at that -time. The Districts failed to justify their three year delay in seeking to intervene.
2. Even if the Districts’ motion was timely, the Districts do not have an interest in this case that needs to be protected. “The ‘Purpose’ section of Act 57 makes it clear that the amount of funding given to schools shall be based on need and not funds available.” Deer/Mt. Judea Sch. Dist. v. Kimbrell, 2013 Ark. 393 [430 S.W.3d 29], This case is about the needs of the Plaintiff. The Court rejects the Districts’ argument that satisfying the needs of Plaintiff will somehow impair the State’s ability to meet the Districts’ needs as well.
3. Even if the Districts’ motion was timely and the Districts have an interest in this case, the Districts are adequately represented by the existing parties. To the extent the Districts agree with Plaintiff, Plaintiff adequately represents their interests. To the extent the Districts agree with Defendants, Defendants adequately represent-their interests. See Little Rock Sch. Dist. v. Pulaski Cty. Special Sch. Dist., 378 F.3d 774, 780 (8th Cir.2004) (“The burden is greater if the named party is a government entity that represents the interests common to the public”).
Fort Smith now appeals.
As its sole point on appeal, Fort Smith argues that the circuit court erred in denying its motion to intervene. It contends that it is entitled to intervene as a matter of right because its interests are not adequately represented by either Deer/Mt. Judea or the State Defendants. Fort Smith asserts that its intervention is essential because the circuit court should hear and have the benefit of matters impacting districts of all sizes, not just those affecting smaller | (-.districts like Deer/Mt. Judea. It urges that its motion to intervene was timely because it was filed just after this court’s prior decision in the matter and prior to Deer/Mt. Judea’s filing of an amended complaint; therefore, Fort Smith claims, no prejudice to the current parties would result.
Deer/Mt. Judea responds that Fort Smith offers no explanation for its three-year delay in seeking to intervene in the case. Moreover, it contends, Fort Smith has no interest to be protected because Deer/Mt. Judea’s suit is an individual one, limited to the needs of Deer/Mt. Judea. It is not a class action, Deer/Mt. Judea avers, and for this reason, its case will have no res judicata effect on Fort Smith. Nonetheless, Deer/Mt. Judea asserts that any interest claimed by Fort Smith is adequately protected by the existing parties.
Rule 24(a) of the Arkansas Rules of Civil Procedure governs intervention of right and provides:
Upon timely application anyone shall be permitted to intervene in an action:
(1) when a statute of this state confers an unconditional right to intervene; or
(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
Ark. R. Civ. P. 24(a) (2014). A threshold question in determining whether intervention shall be allowed under either Rule 24(a) is whether application was made in a timely manner. See Kelly v. Estate of Edwards, 2009 Ark. 78, 312 S.W.3d 316. The issue of timeliness is a matter well within the sound discretion of the circuit court and is subject to reversal only where that discretion has been abused. See id. Timeliness is to be determined from all the circumstances, and there are three factors that a circuit court must consider: (1) how far have the proceedings 17progressed; (2) has there been any prejudice to other parties caused by the delay; and (3) what was the reason for the delay. See id. In order to overturn the circuit court’s denial of intervention on the ground of timeliness, Fort Smith must demonstrate that the court abused its discretion by making a judgment call that was arbitrary or groundless. See Employers Nat’l Ins. Co. v. Grantors to the Diaz Refinery PRP Comm. Site Trust, 313 Ark. 645, 855 S.W.2d 936 (1993). This it has not done.
With respect to the progression of the proceedings, the circuit court observed that a three-year delay had occurred. Indeed, Deer/Mt. Judea filed its initial complaint on December 3, 2010, and Fort Smith did not file its intervention motion until February 12, 2014 — a more than three-year delay. During that delay, certain claims of Deer/Mt. Judea were dismissed, summary judgment was granted on another, and an appeal was taken. Delay in asserting a right is obviously a critical factor. See McLane Co., Inc. v. Davis, 342 Ark. 655, 33 S.W.3d 473 (2000); Cupples Farms P’ship v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 839 S.W.2d 187 (1992). We think this holds especially true when the subject of the litigation is constantly evolving legislation and its effect on a small, rural individual school district.
Along those same lines, prejudice to Deer/Mt. Judea and the State Defendants is certainly a concern. The focus of the litigation is already well-established and pertains to a single district. It is an individual lawsuit and not a class action, as was the case in the seminal Lake View litigation. See Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002) (noting class certification), mandate recalled by Lake View Sch. Dist. No. 25 v. Huckabee, 355 Ark. 617, 142 S.W.3d 643 (2004) (per curiam). Fort Smith alleges that it has concerns that have not been asserted and will not be addressed by Deer/Mt. Judea’s litigation. Even if that allegation were true, we would be hard-pressed to see how a more-than-three-year delay in the addition of new claims to a lawsuit involving funding legislation and its effect on a single school district would not be prejudicial to the parties already present.
Finally, Fort Smith’s justification for its delay simply does not withstand scrutiny. Fort Smith claims that it timely filed its motion after our decision in Deer/Mt. Judea, 2013 Ark. 393, 430 S.W.3d 29, because that decision “made clear that, upon [Fort Smith’s] failure to do so, [it] risked being bound by a decision in a case to which [it was] not a party.” That position, however, simply holds no water. The claims made by Deer/Mt. Judea that we held were barred by res judicata were barred because the claims could have been litigated in the Lake View cases. See Deer/Mt. Judea, 2013 Ark. 393, 430 S.W.3d 29. Those claims could have been litigated by Deer/Mt. Judea in those cases because, as already set forth, the Lake View case was a class-action suit, “which included all school districts in the state.” 351 Ark. at 43, 91 S.W.3d at 478. In contrast, the instant matter was brought by Deer/Mt. Judea by and for itself and is not a class-action. To that end, Fort Smith would not be subject to the doctrine of res judicata as it relates to the disposition of Deer/Mt. Judea’s complaint. See, e.g., UHS of Arkansas, Inc. v. City of Sherwood, 296 Ark. 97, 103, 752 S.W.2d 36, 39 (1988) (“One who does not intervene, whether or not by right, is not at risk of being bound by the litigation and is not subject to res judicata.”).
The objective of our rules of procedure is the orderly and efficient resolution of disputes. See Employers Nat. Ins., 313 Ark. 645, 855 S.W.2d 936. See also Ark. R. Civ. P. 1 (2014). “In order to accomplish this mission, trial courts are accorded discretion, within reasonable limits, to require timely action and to deny efforts which would frustrate the achievement of those goals.” Employers Nat. Ins., 313 Ark. at 652, 855 S.W.2d at 940. Given the facts and circumstances of this case, we cannot say that the circuit court abused its discretion in denying the motion for intervention as untimely. Because we affirm the circuit court’s order on the basis of untimeliness, we need not address the remainder of Fort Smith’s argument. See, e.g., Kelly, 2009 Ark. 78, 312 S.W.3d 316; Ballard v. Garrett, 349 Ark. 371, 78 S.W.3d 73 (2002).
Affirmed.
. Mike Beebe, in his official capacity as Governor of the State of Arkansas, and others, were defendants below but are not parties to the instant appeal ("State Defendants”).
. In addition, we affirmed the circuit court’s striking of Deer/Mt. Judea’s amended and supplemental complaint, and we held moot Deer/Mt. Judea’s contention that the circuit court erred in severing only the date restriction in section 31 of Act 269 of 2012, with respect to its special-legislation claim. See Deer/Mt. Judea, 2013 Ark. 393, 430 S.W.3d 29.
.Indeed, prior to our decision in Deer/Mt. Judea, 2013 Ark. 393, 430 S.W.3d 29, yet another appeal had been dismissed. See Deer/Mt. Judea Sch. Dist. v. Beebe, 2012 Ark. 93, 2012 WL 665604.
.Fort Smith's additional claim that without intervention it could be subject to stare deci-sis is speculative at best and an insufficient reason to allow intervention as a matter of right in this case. See Billabong Prods., Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). | [
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RITA W. GRUBER, Judge.
|, Kenneth Coleman Colley II, a self-employed contractor, brings this child-support case before us for the second time. The primary issue is the procedure to be used for determining the amount of his income for purposes of child support. We dismissed the first appeal without prejudice because of a lack of finality in the circuit court’s decree that granted Audrey Hamilton Colley’s complaint for divorce. Colley v. Colley, 2014 Ark. App. 194, 2014 WL 1092553. The circuit court subsequently entered a final order as to payment of child support, ordering Mr. Colley to pay $900 monthly for support of the parties’ minor child. Mr. Colley now appeals the final order of child support, entered on April 23, 2014.
In his first three points, Mr. Colley contends that the circuit court erred as a matter of law in calculating child support under Administrative Order No. 10:
I.After the circuit court found that his income tax records were unreliable for 12determining child support, it erred as a matter of law by failing to follow appropriate procedure for determining his net worth and to consider factors required for determination of child support.
II. The circuit court erred as a matter of law by failing to consider depreciation as it pertains to child support.
III. The circuit court erred as a matter of law by failing to consider interest expense, a valid business deduction under the federal tax code, as a valid corporate deduction in its child-support analysis.
Mr. Colley also contends:
IV. The circuit court’s finding that he clearly earns more than his reported income of $1,950 monthly — based on his travels and ability to purchase a boat, four-wheelers and vehicles, and lifestyle in general — was clearly erroneous.
V. The circuit court erred as a matter of law in refusing to make findings of fact and conclusions of law under Ark. R. Civ. P. 52(a).
We hold that the circuit court, in calculating child support under Administrative Order No. 10, erred as a matter of law by failing to follow the appropriate procedure for determining Mr. Colley’s net worth and to consider the factors required for determining child; support. Because we remand to the circuit court on the first point, it is unnecessary to address the remaining points.
It is the task of the circuit court to determine a child-support payor’s expendable income, which may be different from income for tax purposes. Cole v. Cole, 89 Ark.App. 134, 201 S.W.3d 21 (2005). Although due deference is given to a circuit court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony, no deference is given to that court’s conclusion of law. Chitwood v. Chitwood, 2014 Ark. 182, 433 S.W.3d 245. The fol lowing directive for calculation of child support is | ¡¡pertinent to the present case:
Nonsalaried Payors....
For self-employed payors, support shall be calculated based on the last two years’ federal and state income tax returns and the quarterly estimates for the current year.... Depreciation should be allowed as a deduction only to the extent that it reflects actual decrease in value of an asset. Also, the court shall consider the amount the pay- or is capable of earning or a net worth approach based on property, life-style, etc. For “clarification of the procedure for determining child support by using the net-worth method,” see Tucker v. Office of Child Support Enforcement, 368 Ark. 481, 247 S.W.3d 485 (2007).
Ark. Sup.Ct. Admin. Order No. 10 § 111(c) (2014) (emphasis added).
Our supreme court has outlined the procedure to be followed under the net-worth method, which is to be utilized if the pay- or’s tax returns are determined to be unreliable:
Pursuant to Administrative Order No. 10, Section III(c), for self-employed pay-ors, the circuit court should first consider the last two years’ federal and state income tax returns and the quarterly estimates for the current year. A self-employed payor’s income should include contributions made to retirement plans, alimony paid, and self-employed insurance paid.[ ] Id. Depreciation should be allowed only to the extent that it reflects actual decrease in value of an asset. Id.
If the circuit court determines that the tax returns are unreliable, then it shall make specific findings explaining the basis of its determination. The circuit court shall then proceed using the net-worth method. The circuit court shall establish a beginning net worth at the start of the relevant period and an ending net worth at the end of the period, considering living expenses and allowable deductions for the same period. See Holland [v. United States] 348 U.S. at 125, 75 S.Ct. 127 [99 L.Ed. 150 (1954) ]. Additionally, the circuit court shall consider the following factors: (1) the impact of inflation or deflation on the payor’s net worth; (2) liquidity of the payor’s assets; (3) the payor’s cash flow; (4) the payor’s current and long-term financial obligations; (5) the pay- or’s lifestyle; and (6) any other relevant factors. After determining the payor’s disposable income, the circuit court shall calculate child support in accordance with the child-support guidelines.
Tucker, 368 Ark. at 489-90, 247 S.W.3d at 492; see also Wright v. Wright, 2010 Ark. App. 250, at 6-7, 377 S.W.3d 369, 373-74 (stating that the circuit court, after making specific findings to support a determination that a self-employed payor’s tax returns are unreliable, may determine the payor’s income by using the net-worth method).
Testimony at the February 28, 2013 divorce hearing focused on Mr. Colley’s income . and expenses as a self-employed homebuilder; the parties’ use of credit cards, which were in his name; and the parties’ expenses from the time of their July 2008 marriage. Mr. Colley asked that his child support be set at $400 a month based on his annual income according to recent tax returns: $15,589 on the 2011 return, and $22,524 on the 2010 return. Ms. Colley requested $1,081 monthly support based on Mr. Colley’s monthly average of $750 in crédit-card charges for personal items from November 2011 through October 2012; his use of the vehicle provided through his business; and his deposition testimony that it took $80,000 annually to satisfy bills and needs of the parties and their child, of which he paid 90% and she paid 10%.
At the hearing’s conclusion, the circuit court left the record open and ordered posttrial briefs on issues including child support as related to Administrative Order No. 10. Subsequently, the circuit court addressed child support in a letter opinion:
|,sThe Court finds that as set forth in Williams v. Nesbitt, 95 Ark.App. 79, 284 S.W.3d 343 (2006), it is a reversible error to mechanically look to tax documents to determine child support rather than the actual expendable income that a payor has available.
Clearly, Mr. Colley’s asserted net income of $1,950.00 is inconsistent with his monthly expenses as set forth by his Affidavit of Financial Means and his testimony that his net annual pay would be no less than $72,000.00 ($6,000.00 net monthly) to cover the financial needs of [the child], and himself. Therefore, the Court is setting support at the rate of $900.00 per month.
Mr. Colley filed a motion for reconsideration and motion for findings of facts under Ark. R. Civ. P. 52(a). He asserted that it was not possible to discern from the court’s findings how it had arrived at the figure of $6,000 for net monthly income; that no substantial evidence supported a finding of $6,000 net earnings monthly for child-support purposes; and that, after correcting mistakes in his own financial affidavit and errors in Ms. Colley’s addition, his monthly expenses would be $5,006. He also asserted that the circuit court mistakenly relied on Williams v. Nesbitt, supra, where the payor reduced his disposable income for child-support purposes by having excessive amounts withheld for federal income taxes, and failed to conduct the calculations for child support prescribed by Administrative Order No. 10 or to determine child support under the net-worth basis of Tucker, supra. In a second letter opinion, the court addressed Mr. Colley’s motions:
The Court once again, does not consider Mr. Colley’s argument regarding his net income for purposes of child support to be credible. Mr. Colley testified both at trial and by way of deposition that his annual expenses were met by his annual net income of $72,000.00. The Court also considered the Defendant’s standard of living and recreational expenses as allowed by Administrative Order Number 10. The Defendant clearly earns in excess of his reported income of $1,950.00 based upon his travels, his ability to purchase boats, four wheelers and vehicles and life style in general. Therefore, the Court declines to reconsider the issue of child support and the Defendant is ordered to pay the sum of $900.00 per month as previously ordered.
IfiThe circuit court entered its decree of divorce on June 12, 2013, incorporating its previous letter opinions and its ruling on Mr. Colley’s motions for reconsideration and for findings of fact. Mr. Colley’s income for purposes of child support was calculated in Paragraph IX of the decree:
That the Court specifically finds that as set forth in Williams v. Nesbitt, 95 Ark.App. 79, 234 S.W.3d 343 (2006), it is a reversible error to mechanically look to tax documents to determine child support rather than the actual expendable income that a payor has available. That, clearly, Mr. Colley’s asserted income of $1,950.00 is inconsistent with his monthly expenses as set forth by his Affidavit of Financial Means and his testimony that his net annual pay would be no less than $72,000.00 ($6,000.00 net monthly) to cover the financial needs of [the child] and himself. That the defendant clearly earns in excess of his reported income of $1,950.00 based upon his travels, his ability to purchase boats, 4-wheelers and vehicles and lifestyle in general. That, therefore, the Court is setting child support at a rate of $900.00 per month, effective as of the date of this Order[.]
The circuit court’s final order as to payment of child support, after our dismissal of the first appeal for want of a final order, again set child support at $900 on the basis of Paragraph IX.
On appeal, Mr. Colley argues that there is no evidence to support the trial court’s finding that his monthly net income was $6,000 and no credible evidence that his recent tax returns were unreliable. He complains that the trial court, without considering his depletion of premarital money, incorrectly based child support on his testimony about the amount he paid for current personal and corporate expenses, in which he mistakenly combined his corporate and personal expenses. He points to his testimony that he borrowed $30,000 from his father during the marriage and had $100,000 in loans' from his grandmother, one of which was still outstanding at the time of the divorce; that he and Ms. Colley purchased three vehicles through his corporation, trading in vehicles on two of them and making loan 17payments; and that he used only $400 of marital funds when he traded in an ATV owned before the marriage on a different ATV. He complains that the circuit court did not explain how his excess spending after the parties separated, on such things as trips with his girlfriend and the purchase of a $38,000 boat, rendered his 2010 and 2011 tax returns unreliable. Finally, he asserts that the circuit court erred in relying on Williams v. Nesbitt and in failing to apply the analysis of Tucker v. Office of Child Support Enforcement.
We agree with Mr. Colley’s final argument. Administrative Order No. 10, which allows a circuit court calculating a self-employed payor’s income to consider “a neb-worth approach based on property, life-style, etc.”, cites Twker for clarification of “the procedure for determining child support by using the net-worth method.” Tucker, in turn, requires the circuit court to determine beginning and ending net worth for the relevant period, and then to consider (1) the impact of inflation or deflation on the payor’s net worth; (2) the liquidity of the payor’s assets; (3) the pay- or’s cash flow; (4) the payor’s current and long-term financial debts or obligations; (5) the payor’s lifestyle; and (6) any other relevant factors. 368 Ark. at 490, 247 S.W.3d at 492. The circuit court did not completely perform the required analysis, and we remand for it do so.
Reversed and remanded.
WYNNE and BROWN, JJ., agree.
. "A self-employed payor's income should include ... self-employed health insurance paid[J” Ark. Sup.Ct. Admin. Order No. 10 § 111(c) (emphasis added).
. Mr. Colley testified that he had made over $75,000 each year from 2007 through 2009 in his business, but the business had "pretty much gone in the dump” with the economy’s downturn and he had depleted premarital funds of $258,000 to make ends meet. Documents and exhibits at the hearing included tax returns, affidavits of financial means, and each party’s calculations for child support.
. Ms. Colley had income as a school teacher, and the parties had no joint accounts. | [
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George Rose Smith, J.
The basic question here is whether the lessee of an oil and gas lease is estopped to deny the title of the lessor, especially when the lease contains a clause requiring payment of royalties to the lessor only to the extent of his mineral ownership. The chancellor held that the ordinary rule of estoppel as between landlord and tenant is applicable to oil and gas leases. Upon that premise he required the appellants, as lessees, to pay royalties to the appellee, their lessor, who holds only a void tax title to the minerals within the 120 acres covered by the lease.
The facts are these: In 1935 the Missouri-Pacific Railroad Company owned the minerals in question and paid the taxes for that year in the Charleston district of Franklin county, where the land is located. By mistake, however, the same mineral rights were also assessed on the tax books in the Ozark district of the county and were erroneously sold and certified to the State for nonpayment of the taxes. It is settled, of course, that a tax sale is void if the taxes have actually been paid. Spradling v. Green, 226 Ark. 420, 290 S. W. 2d 430.
In July of 1947 the appellee, for a consideration of $3.92, purchased the State’s tax title, which, as we have indicated, was void. Two months later the appellee executed an oil and gas lease to one of the appellants, Arkansas Louisiana Gas Company, purporting to cover these minerals. In December of 1947 the lessee conveyed a half interest in the lease to Arkansas-Oklahoma Gas Company, and in 1954 the latter’s interest was acquired by Stephens Production Company, a partnership composed of the appellants W. R. Stephens, J. T. Stephens, and Vernon Giss. In 1955 the original lease was superseded by a new lease that was executed by the appellee to Arkansas Louisiana Gas Company and Stephens Production Company. It may be observed in passing that under the two leases the appellee has collected a total of some eight hundred or nine hundred dollars, as delay rentals.
Both the leases executed by the appellee were for a term of ten years and as long thereafter as oil or gas is produced, and both leases contained this reduction clause: “Lessor hereby warrants and agrees to defend the title to said land .... Without impairment of Lessee’s right under the warranty in event of failure of title, it is agreed that if Lessor owns an interest in said land less than the entire fee simple estate, then the royalties and rentals to be paid Lessor shall be reduced proportionately. ’ ’ The 1955 lease was still in force when the present suit was filed by the appellee on October 2,1958.
Not only do the appellants hold a lease from the appellee; they also hold a lease from the real owner of the minerals. In 1952 Arkansas-Oklahoma Gas Company acquired an oil and gas lease from the Missouri-Pacific, covering extensive acreage including the land now in controversy, and later that year Arkansas-Oklahoma conveyed a half interest in the lease to the appellant Arkansas Louisiana Gas Company. In 1954 Arkansas-Oklahoma’s half interest was acquired by Stephens Production Company. Thus the appellant lessees hold two leases upon these minerals, one from the appellee, whose tax title is invalid, and one from the Missouri-Pacific, which was the true owner when it leased the property.
In May of 1958 Stephens, Inc., a corporation owned by the two Stephenses, purchased from the Missouri-Pacific more than 2,900 acres of mineral rights in and near Franklin county, including the 120 acres now in dispute. The purchase price of $112,251 was based upon an independent appraisal previously procured by the Missouri-Pacific, and according to that appraisal $9,000 of the total value was allocated to these 120 acres. In making the purchase Stephens, Inc., took the title in the name of the remaining appellant, J. A. Carter, as trustee.
It was not until 1958 that the lessees began drilling operations. The acreage now in controversy was unitized with other lands, and in August of 1958 the lessees completed a producing gas well upon other land within the unitized block. The appellee then filed this suit, asserting that the lessees are estopped to deny his title and must therefore pay him royalties upon that part of the gas production that is attributable, under the unitization agreement, to the 120 acres in question. The chancellor upheld the theory of estoppel and entered a decree requiring the lessees to account to the appellee for his share of the royalties. The practical effect of the decree is to compel the lessees to pay full royalties to both lessors.
Counsel for the appellee opens his brief by contending that the issue of estoppel is to be determined by the law of Louisiana, because the appellee’s lease to the appellants was executed and delivered in that state. We are inclined to believe that the Louisiana courts do not consider an oil and gas lessee to be estopped to deny his lessor’s title, so that the Louisiana law is actually unfavorable to the appellee. See Nabors Oil & Gas Co. v. La. Oil Ref. Co., 151 La. 361, 91 So. 765; Powell v. Rapides Parish Police Jury, 165 La. 490, 115 So. 667; and Gulf Ref. Co. of La. v. Glassell, 186 La. 190, 171 So. 846, as later explained in Serio v. Chadwick, La. App., 66 So. 2d 9. We do not, however, rest onr decision upon the law of Louisiana, for we think it plain that the issue is to be determined by the law of Arkansas, where the land lies.
‘ ‘ Covenants to pay royalties run with the land so that an assignee of a royalty interest is entitled to receive the royalty from the lessee or his assignee.” Standard Oil Co. of La. v. Craig, 202 Ark. 168, 150 S. W. 2d 744. It is an established principle that covenants which run with the land are governed by the law of the state where the land is. Beauchamp v. Bertig, 90 Ark. 351, 119 S. W. 75, 23 LRANS 659; Rest., Conflict of Laws, § 341. As Leflar explains in his work on Conflict of Laws (1959), § 144: “Those [covenants] which run with the land . . . create more than an in personam right, since they attach themselves to the land and are transferred as a part of the ownership of the land to all subsequent takers thereof. For that reason their existence, nature and effect are all determined by the law of the place where the land is located.”
The rights and the duties that arise from a covenant to pay royalties are not personal to the contracting parties; they run with the land and apply with equal force to successors in interest of either the lessor or the lessee. If the rule of estoppel as between landlord and tenant applies to this situation it has a substantive effect upon the rights of the parties and thus really determines the extent of their interest in the land. The law rightly holds, both as a matter of logic and as a matter of convenience and uniformity, that such questions are governed by the law of the place where the land lies.
Coming then to the principal issue, which is a matter of first impression in Arkansas, we are firmly of the view that the doctrine of estoppel does not apply in the present case.
The inability of an ordinary tenant to deny his landlord’s title ultimately goes back to basic considerations of good faith and fair dealing. Thompson gives the reason for the rule in his work on Beal Property (Perm. Ed.), § 1735: “On becoming tenant of land under another, the tenant, in contemplation of law and on grounds of public policy and in maintenance of sound morals and good faith, undertakes to preserve the possession of the landlord and redeliver it, and he can not do otherwise without a violation of faith. ’ ’ Later on the author adds: ‘ ‘ The rule that a lessee holding possession by virtue of a lease can not dispute the title of his lessor does not apply to an ordinary mining lease, which is more like a sale than a lease.” Ibid., § 1745.
There are compelling reasons for recognizing a distinction between the two situations. In the usual case a tenant of business property or farm land is not concerned with any question of title. All he pays for is the right of possession, and if his occupancy is undisturbed he has no ground for complaint. To permit him to question his landlord’s title would prevent the latter from bringing an action to collect the rent except at the risk of placing his title in jeopardy. See Tiffany, Real Property (3d Ed.), § 135. On the other hand, if the lease should give the tenant an option to purchase the property it cannot be doubted that he would be allowed to question his landlord’s title to the extent of insisting that a merchantable title be conveyed.
A mineral lessee is unquestionably more in the position of a purchaser than in that of a mere occupant of the land. By our law an oil and gas lease conveys to the lessee an interest in the land. Clark v. Dennis, 172 Ark. 1096, 291 S. W. 807. Unlike an ordinary tenant a mineral lessee is not concerned with possession alone. He does not merely undertake, as Thompson observes, supra, “to preserve the possession of the landlord and redeliver it. ’ ’ Instead, both parties to the lease intend and hope that the lessee will redeliver the premises only after the oil, gas, coal, or other minerals have been removed, with payment of royalties to the lessor. Thus the lessee is a purchaser as well as an occupant, and in this situation considerations of good faith and fair dealing require that the lessor have good title to the minerals for which he is receiving a royalty.
If we had any feeling of doubt in the case at bar that doubt would be set at rest by the fact that the appellee’s lease contained the reduction clause quoted above. “In the cases involving this type of clause it has been uniformly held that if there is a failure of the lessor’s title he is entitled only to a proportionate interest in the rents and royalties and that the lessee is not estopped from taking leases from adverse claimants on the theory that a lessee cannot deny his landlord’s title.” Summers, Oil & Gas (Perm. Ed.), § 609.2. It is plain enough that the parties, by inserting the reduction clause in the lease, recognize the lessee’s right to question the lessor’s title, and thus they eliminate by contract any possibility of estoppel. Indeed, counsel for the appellee recognizes the controlling force of this clause and merely argues that it should not be applied where, as here, the lessor has no title whatever. In short it is contended that if the appellee owned only one per cent of the fee simple he would be entitled to only one per cent of the royalties, but since he owns no valid interest at all he should be entitled to one hundred per cent of the royalties. This argument does not require an extended answer.
Only one other matter need be mentioned. The appellants requested, in substance, that the appellee admit that the appellant Carter, as trustee, is the owner of the minerals in question. The appellee, by failing to answer the request, admitted the truth of the appellants’ assertion. Ark. Stats. 1947, § 28-358; Brown v. Lewis, 231 Ark. 976, 334 S. W. 2d 225. The record also shows that the appellee’s tax title is void, as the taxes for 1935 were paid in the Charleston district. It follows that the appellants are entitled to a decree dismissing the appellee’s complaint for want of equity and canceling his tax deed as a cloud upon Carter’s title to the minerals. The cause will therefore be remanded for the entry of a decree to that effect.
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Jim Johnson, Associate Justice.
This case involves claims for damages arising out of an automobile and tractor collision.
Appellees, J. B. Brickell and Broadway Packing Company, Inc., brought this action for damages for personal injuries sustained by Brickell while driving an automobile owned by the appellee company and for property damages to the automobile, respectively, in an accident occurring May 28, 1959, with a tractor owned by appellant Tom Womack and driven by appellant Foy Wisham.
Trial to a jury resulted in a verdict rendered upon special interrogatories finding appellants liable for damages as a result of concurring negligence with appellees and fixing the respective percentages of fault at 70% against appellants and 30% against appellees.
After the jury returned a special finding of total damages for personal injury in favor of appellee Brick-ell for $63.10, the court interrogated the jury as to whether they had allowed Brickell anything for pain and suffering, and upon being advised in the negative and being further told by the jury that only medical and hospital cost had been allowed, directed the jury to return a verdict for pain and suffering and ordered them to retire for further deliberation.
Upon returning the second verdict, the jury increased the figure for total damage for personal injuries to Brickell from $63.10 to $163.10.
Appellants objected to the interrogation of the jury when it returned its first verdict and to the direction that an allowance had to be made for pain and suffering as being an invasion of the province of the jury by the trial judge.
For reversal, appellants rely on three points. We find no merit in two of the points, therefore, only the above objection will be discussed in this opinion.
After the jury had returned its verdict into open court awarding appellee Brickell $63.10 for his total damages, instead of accepting the verdict, the court, over objection, inquired as to the basis of the finding and was told by a juror that the jury intended to return a verdict for hospital and medical cost and did not award anything at all for pain and suffering. Since no member of the jury dissented to this statement, it was equivalent to a special finding by the jury. See annotation: ‘ ‘ Propriety of court questioning jury as to meaning of their verdict, or for purpose of correcting it in matter of form. ’ ’ 164 A.L.R. 989, 993, Sec. II a, 1, d.
The court then told the jury, over specific objection that it was invading their province, that Brickell was entitled under the law to recover for physical pain and mental anguish and directed the jury to retire.
The jury then returned a different verdict allowing Brickell $163.10, whereupon the court discharged the jury.
After careful consideration, we cannot escape the conclusion that the action of the trial court in this respect was an invasion of the province of the jury requiring a reversal of this cause.
The Constitution of Arkansas, Art. 2, Sec. 7, provides :
“The right of trial by jury shall remain inviolate, ■ and shall extend to all cases at law . . .”
Ibid, Art. 7, Sec. 23, provides:
“Judges shall not charge juries with regard to matters of fact, but shall declare the law . . .”
In 89 C. J. S. 203, Sec. 517 c. (2), it is stated:
“As a general rule where the determination of the amount of recovery is exclusively within the province of the jury the court has no power to amend the verdict by increasing the amount found by the jury.” (Citing: 64 C. J., p. 1099, n. 29, which cites Rice & Holiman v. Henderson, 183 Ark. 355, 35 S. W. 2d 1016). Accord: 53 Am. Jur. 758, Sec. 1094.
In Beckley v. Miller, 96 Ark. 379, 131 S. W. 876, this Court held that the trial court exceeded its power in reducing a verdict rendered on evidence of plaintiff in the sum of $506.40 to $214, as shown by evidence offered for defendant. There it was said:
“The trial court may tell the jury in a proper case that there is no question of fact for it to determine, and may also set aside a verdict for errors committed by the jury and grant a new trial; but it can never substitute its judgment for that of the jury on a disputed question of fact. It is obvious that, if the trial court could do this, the verdict of the jury would have no binding force but would be persuasive merely as is the case of the verdict of a jury in a chancery court. The amount to be recovered by the plaintiff was a disputed question of fact, and it was the exclusive province of the jury to determine it . . .”
So, also, we have held that the trial court is without power to add to the verdict as in Rice & Holiman v. Henderson, supra, where the jury returned a verdict for a stated sum “with hospital and doctor’s bills to be paid by defendants” and there was no evidence as to the amount of the hospital bill.
As we view the case at bar, the only proper course to follow was as provided in Ark. Stats. Sec. 27-1738:
“The verdict shall be written, signed by the foreman and read by the court or clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again, but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case.”
Of course, the testimony of appellee Brickell as to his personal injuries should not have been treated as uncontradicted because he was a party. Conway v. Hudspeth, 229 Ark. 735, 318 S. W. 2d 137; and, further, different inferences might have been drawn from both his testimony and the testimony of Ms physician, W. M. Douglas, introduced by stipulation. Brickell testified that he told Foy Wisham he didn’t tMnlc he was hurt and the physician reported: “Physical examination of the neck and adjacent areas revealed no significant findings except the subjective tenderness on motion of bis neck.”
Certainly “fair minded men may differ” about tbe inferences to be drawn as to pain and suffering, and might consistently say that there was no proof thereof convincing to their minds. The court was, therefore, not justified in peremptorily instructing the jury that Brick-ell was entitled to recover for physical pain and mental anguish and directing further deliberation. See: Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226; and Thiel v. Dove, 329 Ark. 601, 317 S. W. 2d 121.
From a careful review of the record it is apparent that the jury had, in effect, found that no pain and suffering had been endured by Brickell. Therefore, the judgment insofar as it pertains to appellee J. B. Brickell is reversed and the cause is remanded for a new trial. Regarding appellee Broadway Packing Co., Inc., the situation is entirely different. This case was submitted to the jury on separate interrogatories and separate findings were returned as to damages sustained by each appellee. That, in effect, amounted to the return of two separate verdicts. Therefore, the rule recognized in Wilson v. Davis, 230 Ark. 1013, 328 S. W. 2d 249 — that the verdict in a law case being an entirety could not be divided by affirming in part — does not here apply. The error here committed affected only the verdict or judgment in favor of appellee Brickell: there being no contention that error existed in the verdict or judgment in favor of appellee Broadway Packing Company, Inc., such judgment is affirmed.
Reversed in part. Affirmed in part. | [
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Carleton Harris, Chief Justice.
This appeal involves the question of priority of liens. Vernon Page and G-eraline Page, his wife, were the owners of a tract of land near Batesville. On June 13, 1958, the Pages gave a deed of trust to D. C. Davis to secure a loan of $4,000, and such trust deed was filed for record in Independence County the next day. Appellees, John E. Bryant & Sons Lumber Company, Inc., furnished materials used in repairing a structure on these lands. An alleged portion of the materials was furnished between July 1, 1957, and August 7, 1957, but no lien was filed as to these materials within 90 days after being furnished; the balance of the materials was furnished between June 24,1958, and November 7,1958, in the amount of $411.93, and a lien claim, as provided by statute, was filed within the statutory period. The parties entered into a stipulation providing, inter alia, that all the materials purchased subsequent to June 24, 1958, were furnished and used in the remodeling of an existing house on the property involved.
T. D. Penn, d/b/a Penn Plumbing and Electric Company, furnished materials and labor for Page in the amount of $618.22 between October 8, 1958, and November 10,1958, and filed his claim for lien within the proper period. Complaint was instituted by appellees seeking judgment in the amounts mentioned, praying that a lien be declared on the Page property herein involved to secure the payment of the judgments, and asking that such lien be declared superior to the claim of Davis. The Pages and Davis separately answered, denying the allegations of the complaint, the Pages denying that ap pellees were entitled to a lien on the property, and Davis praying that his lien be declared superior to the lien of appellees. Upon hearing, the court made the following findings:
“2. That the plaintiff Bryant is entitled to judgment against Vernon H. Page and Geraline Page, his wife, for the sum of $411.93, with interest at the rate of 6% per annum from January 1, 1959, in a sum of $22.50, or a total of $434.43; that plaintiff Penn is entitled to judgment against Vernon H. Page and Geraline Page, his wife, for the sum of $618.22, plus interest at the rate of 6% per annum from January 20, 1959, in the sum of $31.93, or a total of $650.15.
3. That Penn is entitled and is hereby granted a mechanic’s lien for the sum of $650.15 on Lot 7, Vernon Page Sub-division, being a part of the North Half of the Northeast Quarter of Section 33, Township 13 North, Range six West, as shown by survey recorded in Deed Book D-7, page 171-173 of the records of Independence County, Arkansas, and that said lien is superior to the lien of D. C. Davis, except that the lien of Penn as between D. C. Davis and Penn extends only to the improvements on said lands and not to the lands proper.
4. That Bryant is entitled to and is hereby granted a lien in the sum of $427.70 on said lands described in paragraph 3 above, it being found by the court that the lien claim for the items furnished from July 1, 1957, to August 7, 1957, in the amount of $76.23, is disallowed but that payments in the aggregate sum of $69.50 should be applied to these items, so the net effect is to disallow lien in the sum of only $6.73; that the lien of $427.70 is superior to the lien of D. C. Davis, except that the lien of Bryant as between Bryant and Davis extends only to the improvements on said lands and not to the lands proper.
5. That the liens of Bryant and Penn are on a parity with each other and the amount of the lien of D. C. Davis is determined to be $3,100.00 as of the date of the trial, December 1, 1959.”
Judgment was entered in accordance with these findings, and from such decree, appellant brings this appeal. Appellees cross-appeal from that portion of the decree which denied a lien for the material furnished in 1957. It therefore appears that there are only two issues in this litigation. The paramount issue is whether the materialman’s and mechanic’s liens of the appellees are superior to the lien of the deed of trust held by Davis, and the second issue is whether the Chancellor properly disallowed the claim of the lumber company for a lien because of material furnished in 1957. These issues can be resolved in a more orderly manner by considering the cross-appeal first.
Appellees’ proof consisted of the testimony of Donnie Bryant, an official in charge of sales for the lumber company, and the testimony of Archie Adkerson, deliveryman for Bryant. Bryant testified that Page had been a good customer for several years, and that one day the latter advised him that he (Page) had bought a house, and was going to move it to one of his back lots behind the residence, and remodel same. Bryant stated, that after using about $80 worth of material, Page told him that he had “run out of money”, and the owner quit working on the house. According to the witness, some months after that, (over 10 months) Page returned to the office, wanted further material, stated that he (Page) was going to apply for a loan, and assured Bryant “as soon as we get the house completed, why we’ll have the money to pay you all of it off.” Further material was then sold. Bryant stated that materials were only furnished Page for remodeling of the house that had been moved on the lot beyond the Page residence. On cross-examination, however, the witness admitted that Page might have purchased materials for other improvements, “but it if was, it was a cash sale.” Adkerson testified that he delivered the materials purchased by Page during the summer of 1957, and identified the house as the same involved in the delivery of additional building materials in the summer of 1958. The driver stated that he took material to only one place, and that he actually saw some of the sheetrock nailed up by carpenters who were present, though he was unable to identify any of the workers. The witness testified that the house had a blue hex roof on it at the time of the deliveries; however, he admitted that he also delivered shingles of this color and type in 1958. Contrary to this evidence, Page, and his father, C. H. Page, testified that all of the items purchased in 1957 were used in the beauty shop, operated by the younger Page’s wife, and that all of the work was performed by the father, son, and a brother-in-law. According to the testimony of the younger Page, this shop was located on lot No. 2, whereas the house, which had been moved onto his premises, was located on lot No. 7. Vernon Page also testified that no improvements were made on the house in question in the summer of 1957, except for a hardwood floor that was laid from flooring which had been left over when his residence was completed. Both men testified that the house did not have a blue hex shingle roof on it in 1957, but instead, had a sheet iron roof. D. C. Davis testified that, at the time he took the mortgage (June 13, 1958), he looked at the house, but saw no evidence of any recent work having been done. “I knew the house before it was moved, and it looked to me just like it did. ’ ’ He further testified that the Pages had worked on the beauty parlor some time prior to his lending the money. In Sebastian Building & Loan Association v. Minten, 181 Ark. 700, 27 S. W. 2d 1011 (1930), this Court stated:
“A delivery of material upon the ground where the building is to be constructed is furnishing material within the meaning of the statute, and proof of such fact by the materialman makes a prima facie case in his favor. The owner or other party interested may show that the material was not used in the construction of the building, in order to defeat the lien for the material thus furnished.” Cases are then cited in support of this statement. In accordance with the rule, so stated, we are unable to say that this finding was against the preponderance of the evidence. Were it otherwise, appellee still could not prevail, for the lien was not filed within 90 days, and the facts in this case do not bring the account within one of the exceptions to the statutory requirement. See Streuli v. Wallin-Dickey & Rich Lumber Co., 227 Ark. 885, 302 S. W. 2d 522.
The more important question is that of the priority of the appellees’ liens and the lien of the appellant mortgagee, Davis. Appellees argue that the evidence shows that the mortgage was given for construction, and the failure to so provide within the terms of the instrument causes the situation to come within the rule in Jack Collier East Company v. Barton, 228 Ark. 300, 307 S. W. 2d 863 (1957). In that case we held that before a construction money mortgage becomes superior to a mechanic’s lien, the purpose for which the money is advanced must be shown in the mortgage instrument as recorded.
We do not agree that the preponderance of the evidence shows the deed of trust to have been given for construction purposes. Page stated that the $4,300 received from Davis was used to pay off a previous existing mortgage on the property to a Mr. John Polk. Page subsequently stated, “Mr. Davis knew what the money was to be used for. The amount must be used for construction.” This statement by Page and the aforementioned testimony by Bryant constitutes the only evidence in the record which refers in any way to construction. Just what Page meant by this statement that “the amount must be used for construction” is not shown, though the record reflects that he had engaged in several construction projects. Nor is it clear what Page meant by use of the term “construction”, i.e., whether he was using it in its literal sense, or as a general term which would include repairs or remodeling on existing property. Page, however, did positively state that the money was used to pay Polk’s mortgage, and it is undisputed, and in fact, stipulated, that the materials were used and labor performed on an already existing house on the land. In the ease of Imboden v. Citizens Bank, 163 Ark. 615, 260 S. W. 734 (1924), the trial court held a mortgage lien to be superior to a mechanic’s and materialman’s lien. In affirming the decree, this Court said:
“It is clear from the proof that the building is not separate from the original building so as to constitute a distinct improvement which is separable from the original building. Appellant’s claim of priority therefore calls for a construction of the statute quoted above.
Our construction of the statute is that, as between the lien of a mechanic or the furnisher of material and the lien of a prior mortgage, the lien of the former is superior only upon a separate building constructed on the land with the labor and material furnished, or to such an addition as is separable from the original building. In other words, in order to give a lien to a mechanic or furnisher of material superior to a prior mortgage, the improvement must be separate from the original improvement, or, if connected in any way with the original improvement, it must be so connected as to be removable without injury to the original building. Under the statute the lien of a mechanic or furnisher of material is not superior to a prior mortgage on the entire improved building, nor even to the extent of the betterment accruing from the repair, extension or enlargement of the original building. It is clear that there was no intention on the part of the lawmakers to attempt to impair the obligation of a prior mortgage or the remedy of the mortgagee. On the contrary, the purpose is clear to give a subsequent lienor a distinct remedy for an independent improvement, or what amounts to an independent and separable improvement.”
In Morrilton Lumber Company v. Groom, 176 Ark. 520, 3 S. W. 2d 293 (1928):
“According to our former decisions, if a new building had been erected entirely out of materials furnished by the plaintiff, its lien might have been enforced against such building, and the purchaser would have had the right to remove it from the lots in a reasonable time, notwithstanding there was a prior mortgage on the lots. The lien can be enforced as prior lien only by a sale of the building as a separate and distinct entity from the land. Such priority of lien exists only when a new building has been put upon the land subsequent to the execution of the mortgage, and the one claiming a prior lien for materials furnished must have furnished the materials for the erection of an entirely new building. * * * ”
Since the evidence does not establish that the money was obtained from Davis for construction purposes, and the deed of trust was filed for record prior to the date the materials, used on the house, were furnished, it necessarily follows that the Chancellor erred in holding the materialman’s and mechanic’s liens to be paramount to the lien under the deed of trust. The decree is therefore reversed, and the cause remanded, with directions to hold the Davis lien superior to the liens of appellees.
Ward, J., concurs.
D. C. Davis died on December 31, 1959, and the cause was revived in the name of Gertrude E. Davis, Administratrix of the estate of D. C. Davis, deceased. | [
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Ed. F. McFaddin, Associate Justice.
This case results from injuries received by appellant, Lewis Sutton, while unloading, in Arkadelphia, a crated piano which had been shipped by motor carrier from Gulbransen Company in Melrose Park, Illinois, to Nowlin Furniture Company in Arkadelphia. Campbell 66 Express, Inc. (hereinafter called “Campbell”) was the motor carrier which picked up the crated piano at point of origin in Illinois, transported it to Little Bock, and transferred it to Superior Forwarding Company (hereinafter called “Superior”), another carrier, for final delivery in Arkadelphia. Appellant, Lewis Sutton, was the truck driver for Superior, and had made delivery of other freight to Nowlin, whose unloading zone was on the sidewalk in front of the store. From the bed of the Superior truck down to the street level was approximately 56 inches. Sutton requested two of Nowlin’s employees (Calloway and Davis) to assist him in unloading the crated piano from the truck to the street; and it was while this unloading was in process that Sutton received the back injuries which led to this litigation.
The mishap occurred in September 1956. In October 1958 Sutton filed suit against Nowlin; and later, joined Campbell as a defendant. Sntton claimed that Nowlin was responsible for his injuries because Sutton alleged that Nowlin was negligent, inter alia, in these respects: that Nowlin had no unloading platform; that Nowlin failed and refused to furnish a lower bodied truck into which the crated piano could be placed from the Superior truck; that Nowlin failed to furnish enough helpers in the unloading; and that the helpers supplied by Nowlin were negligent. Sutton also claimed that Campbell was negligent because the bill of lading under which the crated piano moved showed the weight to be 400 pounds, whereas, in truth and in fact, the crated piano weighed as much as 486 pounds; and that Sutton relied on the weight shown on the bill of lading in trying to unload the piano, and his injuries came about because the weight was greater than stated on the bill of lading.
At the trial Sutton testified that no one directed the unloading, but each person acted on his own initiative. Calloway testified that he and Davis merely acted as an accommodation to Sutton, and that Sutton directed the method of unloading. The evidence showed that the three men undertook the task of unloading; they edged the crated piano to the rear end of the Superior truck; and then began to lower one end of the crated piano to the street. Davis was in the truck, and Calloway and Sutton were on the street level. "While one end of the piano was being thus lowered to the street, Sutton claimed that Calloway let an excessive weight rest on Sutton, so that Sutton’s back gave way and he fell to the street. Calloway denied putting an excessive weight on Sutton, and testified that Calloway and Davis completed unloading the piano without Sutton’s help. The case was tried to a jury, which answered two interrogatories, as follows:
1. “Do you find from a preponderance of the evidence in this case that the defendants, Nowlin & Sons Company, and. Nowlin’s Incorporated, by its servants, agents and employees, were guilty of negligence and that such negligence, if any, was a proximate cause of the accident and injuries complained of, if any? ANSWER: No.”
2. “Do you find from a preponderance of the evidence in this case that the defendant, Campbell 66 Express, Inc., by its servants, agents and employees, was guilty of negligence and that such negligence, if any was a proximate cause of the accident and resulting injuries complained of, if any? ANSWER: No.”
Based on the said interrogatories, the Court rendered judgment against Sutton; and he has prosecuted this appeal, claiming (1) that improper testimony was admitted, and (2) that erroneous instructions were given.
I. Objection Regarding Testimony. Both of the two officers and owners of Nowlin’s Furniture Store testified that Sutton never made any request of either of them for Nowlin’s employees to assist in unloading the piano. This occurred:
Q. Mr. Nowlin, is it the duty of either of these employees of Nowlin Furniture Store to ever assist in unloading any freight?
MR. COLE: To which we object, may it please the Court.
A. No, sir.
THE COURT: What is the basis of your objection?
MR. COLE: The basis of the objection is, first, it’s just his opinion as to whether it’s his duty or not; second, that is a question of law whether there is any duty imposed upon them; third, it’s a question for the jury to determine whether or not they failed in that duty.
THE COURT: Overruled.”
Certainly Mr. Nowlin would have a right to testify what were the duties of his employees. He testified that he never instructed his employees either to assist or not to assist in unloading any freight from a motor truck; that the employees, Calloway and Davis, were paid at a standard rate of pay per week; and that this unloading occurred at about 11:00 o ’clock A.M. on a regular work day. Calloway was asked: “Now, I want to ask you about being paid. Why were yon helping Mr. Sutton at this particular time? ” Calloway answered that he was helping Sutton as a favor to him.
The point that the appellant urges is that, since Calloway and Davis were on Nowlin’s payroll at the time they were helping Sutton, they thereby were Nowlin’s employees and it was improper to allow Calloway to say that he was merely helping Sutton, and it was likewise improper to allow Nowlin to say that it was not a part of the duty of Calloway and Davis to help unload the truck. It is claimed that the admission by Nowlin that Calloway and Davis were being paid by Nowlin on the day in question constitutes an “informal judicial admission” that they were working for Nowlin and that, therefore, Nowlin is liable for any negligence by them. The jury’s answer to Interrogatory No. 1 renders this argument moot. It does not make any difference for whom Calloway and Davis were working, or whether Nowlin owed any obligation to assist Sutton in unloading the piano, because the jury has found that Nowlin, “by its servants, agents and employees”, was not guilty of any negligence that proximately caused Sutton’s injuries. The interrogatory has heretofore been copied; and when the jury answered that interrogatory as it did, such answer rendered moot all questions of who employed whom.
II. Instructions. The appellant questions six instructions that were given: two of these were on the request of Nowlin; and four on the request of Campbell. These instructions related to such matters as: common carriers and their duties; weights of shipments; negligence and proximate cause; lending of employees; contributory negligence; and assumption of risk. To copy them in extenso would unduly prolong this opinion. We have carefully considered each questioned instruction; and we conclude that appellant’s objections to them are without merit to all of the instructions except Campbell’s Instruction No. 18. It is true that the Court submitted the wrong Comparative Negligence Statute. The Court framed its instruction under Act No. 296 of 1957; whereas, on the date of Sutton’s injuries, the applicable statute was Act No. 191 of 1955; and the Court should have used the Comparative Negligence Buie as stated in the 1955 Act. See St. L. S. W. v. Robinson, 228 Ark. 418, 308 S. W. 2d 282; and Mo. Pac. Rr. Co. v. Yarbrough, 229 Ark. 308, 315 S. W. 2d 897. But when the jury answered Interrogatory No. 2 as it did and found that Campbell 66 Express, Inc., “by its servants, agents and employees ’ ’, was not guilty of any negligence, then the verdict cancelled any error in the matter of the Comparative Negligence Instruction and rendered harmless the giving of the wrong Comparative Negligence Instruction.
Finding no error, the judgment is affirmed.
Nowlin Furniture Company is the trade name of either Nowlin & Sons Company, or Nowlin, Inc. Both companies are parties defendant, and we will refer to them, jointly and severally, by the name, “Nowlin”.
Sutton received Workmen’s Compensation payments from Superior and its insurance carrier; and when Sutton filed the present suit against Nowlin and Campbell, Superior and its insurance carrier intervened and asked that Superior’s insurance carrier be subrogated, as provided by Workmen’s Compensation Statute — § 81-1340, Ark. Stats.
Here is the exact statement of appellant’s points: “POINT NO. 1. IMPROPER TESTIMONY WAS ADMITTED.
A. Nowlin’s testimony that its employees owed no duty to unload freight.
B. Nowlin’s testimony to falsify and contradict its informal judicial admission.
“POINT NO. 2. ERRONEOUS INSTRUCTIONS WERE GIVEN.
A. Nowlin’s requested No. 1-A on duty not owed, defining common carriers, etc.
B. Nowlin’s requested No. 8 on lending employees.
C. Campbell’s requested No. 8 substituting custom and usage for ordinary care and prudence.
D. Campbell’s requested No. 16 on assumed risk.
E. Campbell’s requested No. 18 submitting wrong comparative negligence law.
F. Campbell’s requested No. 19 excusing negligence of defendant’s employees.” | [
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Jim Johnson, Associate Justice.
Appellant, M. F. A. Mntnal Insurance Company, as the insurer of George Hawkins on an automobile liability policy, instituted this suit for a declaratory judgment contending that George Hawkins’ failure to notify them of the pendency of a suit against him by Mary White (Scott Circuit Court Case No. 2767) relieved them from liability as insurers. Appellee, Mary White, upon becoming cognizant of Hawkins ’ failure to notify the insurance company of the pendency of suit No. 2767, filed an identical action as suit No. 2783 in the same court and later dismissed without prejudice suit No. 2767.
The pertinent parts of the insurance policy here in question, which was admittedly in full force and effect on the date of the accident, are as follows:
* # #
“If a claim is made or suit is brought against the insured, he shall immediately forward to MFA Mutual every demand, notice of summons received by him or his representative. If any suit or counterclaim is brought which may result in a claim under Coverage E, a copy of any pleadings filed shall be immediately forwarded to MFA Mutual.
* * *
“Action against MFA Mutual: No action shall lie against MFA Mutual, under any Coverage, until after full compliance with all the terms of this policy, nor, as respects Coverages A and B, until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and MFA Mutual . . .”
From an adverse decree appellant appeals contending that: “Waiver, estoppel and res judicata are bars to Scott County Circuit Court Case No. 2783,” and “The failure of Hawkins to turn over the summons in Case No. 2767 relieves appellant of any liability because of the breach of the policy conditions.”
The material facts in this case are undisputed. Appellee, George Hawkins, was served with summons in action No. 2767 on June 16, 1958, and did not notify appellant of the service until some 28 days thereafter. This lapse of time admittedly exceeds the statutory answer time. If this were the only issue before the Court in the case at bar we would be inclined to agree with the contentions of appellant, but that is not the case. Here, Appellee White dismissed her action No. 2767 without prejudice, even though at the time of dismissal she was entitled to a default judgment by authority of § 29-401, Ark. Stats. The case was never finally submitted for a judgment and no judgment was obtained. Section 27-1405, Ark. Stats, is as follows:
“Dismissal of Actions — An action may be dismissed without prejudice to a future action:
“First. By the plaintiff before the final submission of the case to the jury, or to the court, where the trial is by the court.”
A dismissal without prejudice has been aptly described as being like a person blowing out a candle, which at his own pleasure may be lit again. We have held many times that if a plaintiff dismisses a suit before final submission, the order of dismissal is not res judicata in another suit involving the same parties and issues. See: Jordan v. McCabe, 209 Ark. 788, 192 S. W. 2d 538. Here another suit (action No. 2783) was filed involving the same parties and issues. Service was had on appellee Hawkins and it is not contended that he did not meet every requirement of his insurance policy. Nor is it contended that the policy was not in force at the time Miss White sustained her injuries complained of in action No. 2783.
Therefore, following the rule laid down in Southern Surety Company v. Puryear-Meyer Grocer Co., 151 Ark. 480, 236 S. W. 841, we find that the delay of Hawkins to notify appellant of the service of summons in action No. 2767 affords no defense in the present action, for that action was dismissed without prejudice. The purpose of the stipulation in the policy was to afford the insurance company an opportunity to control the litiga tion and interpose a defense against the claim on the merits of the case. Since the first action was dismissed without prejudice there was no judgment, no payment, and no liability against appellant was sought; hence, it is clear that there was no breach of the conditions of the policy by failure of appellee to give notice of the first suit.
Affirmed. | [
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J. Seaborn Holt, Associate Justice.
This is a zoning ordinance case. The appellant, Economy Wholesale Company, Inc., filed for a building permit under Zoning Ordinance 353 of the City of Searcy to build a business building in block 24 which was classified as R-l, residential. The building was to be of modern architectural design and constructed of concrete blocks and brick. The premises were to be landscaped and no parking allowed in front of the building. The appellees, Dr. Porter Rodgers and others, filed a protest declaring that the issuance of such a permit would decrease the value of the property in the immediate vicinity for residential, church, and school purposes. Pursuant to the terms of the ordinance, a public hearing was held and at the conclusion of the hearing the city council voted to grant the permit to the appellant. The appellees filed suit in the chancery court praying for a temporary injunction and cancellation of the building permit. This was granted by the lower court. At the final hearing of the matter which extended over a three month’s period during which time many exhibits and voluminous testimony were offered, the lower court issued its order, cancelling the permit and permanently enjoining the appellant from proceeding further with the construction of any building upon the property. This appeal followed.
Although numerous points are relied upon for reversal, they may be summarized in two. First, did the city council have the authority to issue the permit and, second, if it did, was there an abuse of discretion in issuance of the permit.
As to the first point, we think the city council did have the authority to issue the permit. Under Zoning Ordinance 353 the city council is vested with the authority to issue or not to issue such building permits as it deems advisable after a public hearing. Section 4 of the Ordinance states:
“That any such petition (opposing issuance of permit) so filed shall be referred by the City Recorder to the City Council of said City and said City Council shall, at the next regular meeting following said ten day period, conduct a hearing upon the application for a permit and the petition against such permit, at which hearing the applicant and petitioners may be present. At the conclusion of such hearing the City Council may issue or refuse to issue such permit.”
Under the above provision of the ordinance the city council, after a public hearing, may, as it did in this case, issue a permit for the construction of a commercial building upon property previously zoned for residential purposes. This is the same procedure as that contained in the ordinance which we approved in Herring v. Stannus, 169 Ark. 244, 275 S. W. 321. We cannot agree with the appellees’ insistence that Section 4 of the ordinance, above quoted, is deficient in failing to set forth standards by which the city council is to be guided in issuing permits for non-conforming uses. Since the council itself issues the permit it would obviously be free to amend or repeal any standards previously adopted for its own guidance. The protesting property-owners are amply protected against arbitrary action on the part of the city council by that provision of the statute giving a right of appeal to the chancery court. Ark. Stats., § 19-2806.
The appellees also argue that Section 4 of the ordinance, above quoted, has been repealed either by Ordinance 367, establishing a city planning commission, or by Ordinances 399 and 400, approving certain plans submitted by the planning commission. We find no merit in either contention.
By its original zoning ordinance the city council elected to reserve to itself the power to issue permits for non-conforming uses, rather than to delegate that power to a subordinate commission as it had the option of doing under the statute. Ark. Stats., § 19-2806. Later on, in 1956, the city council passed Ordinance 367, pursuant to Act 108 of 1929, and by that ordinance the council created a city planning commission. The appellees now argue that Ordinance 367 by implication repealed Section 4 of the original zoning ordinance and therefore vested in the planning commission the authority to grant permits for nonconforming uses. We think it plain, however, that there was no inconsistency between the two ordinances and therefore no repeal by implication. Ordinance 367 created a planning commission pursuant to the provisions of Act 108 of 1929, so that the commission might discharge the duties imposed upon it by that statute. Ark. Stats., §§ 19-2811 et seq. The discharge of those duties by the planning commission is not repugnant to the city council’s reserved power to issue building permits, and consequently there is lacking the irreconcilable conflict between the two ordinances that would be essential to a finding of an implied repeal. ‘ ‘ The courts have always leaned against repeals by implication, and subsequent laws do not abrogate prior ones unless they are irreconcilably in conflict.” Kendall v. Ramsey, 179 Ark. 984, 19 S. W. 2d 1020.
Neither can we say that Section 4 of Ordinance 353 was repealed by Ordinances 399 and 400. These ordinances merely approved a land-use plan and related plans submitted to the city council by the city planning commission, pursuant to Act 186 of 1957. Ark. Stats., §§ 19-2825 et seq. The land-use plan, which was introduced in evidence, is plainly not a zoning ordinance. It is merely a broad declaration of policy, specifying in a general way the uses to which the land in and near the city is now being put and to which it may be put in the future. The plan does not contain exact descriptions so that a property owner may ascertain what restrictions are being placed upon his land. Indeed, the land-use plan contains none of the details that are essential to a zoning ordinance. The statute itself contemplates that the land-use plan will be put into effect through the adoption of a subsequent zoning ordinance. Section 5 of Act 186 is entitled “Implementation of Plans,” and provides in part: ‘ ‘ Following adoption and filing of the land use plan, the planning commission may prepare for submission to the legislative body [city council] a recommended zoning ordinance for the entire area of the municipality. ” Ark. Stats., § 19-2829. It is undisputed that the city council of Searcy has not yet approved a zoning ordinance submitted by its city planning commission. It follows that the original zoning ordinance, under which the council acted in the case at bar, is still in full force and effect.
The only remaining question then is, has the city council acted unreasonably and arbitrarily. We hold that it did not. Photographs, plans, and traffic flow patterns introduced as exhibits, as well as the testimony, all show that the area, during recent years due to growth of the city and increased traffic, has become more and more desirable for use as commercial property and less and less as residential although the area in question contains a number of very fine and valuable homes. The property here involved fronts on East Race Street which the evidence discloses has the heaviest traffic count in the city. In fact, numerous businesses had been built in the area in question before any zoning was enacted. It should also be noted that the property in question is only a block from property zoned commercial. Several witnesses testified that the city was growing in the direction of East Race Street and the mayor testified that it was felt by the city council that the council should not impede the growth of the city and voted to issue the permit. We have held that we would not set aside the findings of a city council unless we find that the facts clearly show that the council acted unreasonably and arbitrarily. To do so would “be substituting our judgment for that of the zoning authorities who are primarily charged with the duty and responsibility of determining the question.” McKinney v. City of Little Rock, 201 Ark. 618, 146 S. W. 2d 167. In the case of Herring v. Stannus, 169 Ark. 244, 275 S. W. 321, we said:
“As we have said it is to be presumed' that the council in exercising the power conferred on it acted in a fair, just and reasonable manner and its action in the instant case indicates that the power to grant or to withhold permission to erect a forbidden structure in the restricted area was vested in the council. . .. .
“. . . (A)nd its action is final unless we can say that the council abused its discretion. But this discretion in so far as a discretion abides is vested in, the council charged by law with the duty of passing on the question, and does not rest in the courts which review the council’s action.
“The question is not what a member of the court might decide if the question were submitted to him as a matter of discretion, but rather is whether it can be said that the council abused its; discretion and we may not say that was the case unless the fact clearly appears.”
The language of this court, in Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 823, is applicable here:
‘ ‘ There is substantial evidence tending to show that the value of some of the adjacent residence property will be depreciated on account of the lessening of usable value of the property for residence purposes, but we do not think that this affords justification for interfering with the gradual expansion of the business district, which has already been established. As the size of the business district grows, it ceases to be a residence district to that extent within the purview of the zoning ordinance. . .
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. | [
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George Rose Smith, J.
This is a civil action brought by the prosecuting attorney to close the appellants’ place of business, known as Danny’s Club. Ark. Stats. 1947, §§ 34-111 et seq. This appeal is from a final judgment perpetually enjoining the appellants from operating a dance hall or road house upon the property but permitting it to be used for any other lawful business. The appellants contend that they should be permitted to operate a public dance hall, with proper safeguards to prevent its becoming a nuisance.
The prosecuting attorney’s complaint charged that Danny’s Club was being conducted in violation of the law, that intoxicants had been unlawfully consumed upon the premises by minors and others, and that affrays and general breaches of the peace had been frequent. Upon the filing of the complaint the court issued a temporary order closing the place until a hearing on the merits. The appellants then filed a petition asking that the temporary injunction be modified to permit them to open and maintain a public dance hall in a lawful manner, with no intoxicating liquors being sold, consumed, or brought upon the premises.
At the final hearing the State introduced no testimony, as the defendants admitted that the State could, if necessary, produce witnesses to prove the allegations we have summarized. The principal appellants, Robert and Dan Trabish, described the manner in which they plan to operate their business if permitted to reopen. They intend to remove the tables from what has been a road house and to conduct the place solely as a public dance hall, featuring nationally known bands. Neither minors nor intoxicants would be permitted upon the premises, and the proprietors would co-operate with law enforcement officers in every way. The Trabishes testified without contradiction that their investment in the property is about $79,000 and that the building is not suitable for any use except that for which it was designed.
The case is not free from difficulty, but we have concluded that the order should be modified to permit the appellants to operate a public dance hall, with the safeguards described in their petition and testimony. In a proceeding of this kind we review the evidence as in a chancery case. Alston v. State, 216 Ark. 604, 226 S. W. 2d 988. In some cases we have approved orders perpetually enjoining the operation of a dance hall upon the property involved. Foley v. State, 200 Ark. 521, 139 S. W. 2d 673; State v. Williams, 222 Ark. 966, 264 S. W. 2d 417. On the other hand, in Portman v. State, 204 Ark. 349, 162 S. W. 2d 67, we sustained an order that prohibited gambling and the sale of intoxicants but permitted public dancing to continue. Each case must be determined upon its particular facts. We do not know, nor did the trial court know, how objectionable the operation of Danny’s Club lias been in tbe past, as tbe State was not required to offer any proof. In view of all tbe circumstances we think the appellants should be given an opportunity to conduct their business in a lawful manner. If this attempt on their part should fail the State has a prompt and effective remedy through the institution of contempt proceedings. Ark. Stats., § 34-118; Lawson v. State, 226 Ark. 170, 288 S. W. 2d 585.
Modified and remanded for the entry of an order consistent with this opinion. | [
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Jim Johnson, Associate Justice.
This is an action brought by appellee as a citizen and taxpayer of the City of West Memphis against the mayor, treasurer, and aldermen of said city, alleging that the mayor and aider-men are making and executing contracts on behalf of the City of West Memphis with and for the financial benefit of themselves personally in violation of law. The al legations regarding the treasurer are to the effect that he has made expenditures for such contracts as a part of his duties as treasurer. Appellee asks that appellants he enjoined permanently from continuing such actions and that the appellants be required to repay the City all tax revenues so unlawfully expended.
A temporary injunction was entered by the trial court restraining such practices. Upon a full hearing and in an extremely penetrating memorandum opinion, the Chancellor made the temporary injunction permanent and denied the second request, that of requiring appellants to repay the tax funds so expended. Appellants have appealed that part of the order making the injunction permanent.
For reversal, appellants argue first that the court erred in overruling their motion to make appellee’s petition more definite and certain.
This case was originally filed on March 24, 1959. A hearing was held on April 3, 1959, to determine whether a temporary restraining order should be issued. Appellants were present, both in person and by counsel. Based on the testimony of four witnesses the temporary restraining order was issued. Some 30 days following this hearing the appellants’ motion to make more definite and certain was filed. The record of the testimony taken at the hearing details the allegations contained in the complaint. The purpose in granting a motion to make more definite and certain is to inform the parties of the facts upon which the alleged claim is based so as to enable them to prepare a defense. See: Wassell v. Sprick, 208 Ark. 243, 185 S. W. 2d 939; Gunter v. Fletcher, 217 Ark. 800, 233 S. W. 2d 242; Spikes v. Hibbard, 225 Ark. 939, 286 S. W. 2d 477; Ark. Stats. § 27-1160.
Without question, at the time the motion was filed appellants were sufficiently advised of the allegations made in the complaint in order to prepare a defense, and the court was not in error by denying their motion to make more definite and certain. The remainder of appellants’ argument for reversal is based on Ark. Stats. § 19-909, the pertinent language of which is as follows:
“No alderman or member of any council, which, during the term for which he shall have been elected, or one (1) year thereafter ... be interested, directly or indirectly, in the profits of any contract or job, for work or services to be performed for the corporation.”
Appellants’ basic premise is that this statute does not prohibit them from entering into contracts with themselves on behalf of the City for the purchase of “materials”, and in fact, by the enactment of this statute the legislature has made an expression of public policy to this effect.
The record reflects that the appellants have engaged in the practices complained of for some time. The quite candid words of the Chancellor’s opinion in this regard are more appropriate:
“It has been the position and attitude of the respondents in their pleadings, briefs, and oral arguments throughout this proceeding that expenditure of tax funds belonging to the people of West Memphis by the mayor and city council under contracts of various kinds either with themselves or with companies and enterprises in which they have a beneficial interest — for the specific purpose and with the express intent to create a financial profit to said mayor and councilmen — is not in violation of any law existing in Arkansas. Moreover, from all of the proceedings that have taken place in the progress of this cause of action the conclusion on the part of the court is inescapable that the respondents hold a firm and abiding conviction that even if their practices aforesaid should be found to be in violation of the law they are nevertheless good for the City of West Memphis. The implication in the position and attitude of the respondents stands out in bold relief that this court should ignore any laws that seem to get in the way and defer to the good judgment of the officials concerned.
“Petitioner’s allegation that the mayor and city Council were spending the tax money of the people of West Memphis under contracts which they as public officials made with themselves as private individuals with the purpose and intent to make a financial profit for themselves was admitted by each and every witness which the court now recalls. It is clear beyond the peradventure of a doubt that such practices constituted a continual, consistent, planned course of handling the peoples’ money. Not a single official denied these facts. .
It is well settled that the common law rule prohibited municipal officers from self-dealing in regard to the sale of materials as well as in contracts or jobs for work or services. 10 McQuillin, Municipal Corporations, § 29.97 et seq. See also: Warren v. Wheatley, 231 Ark. 707, 331 S. W. 2d 843. But counsel for appellants urge the common law rule is no longer in effect by passage of the act pertaining only to work and services. It is their argument that since the lawmakers have seen fit to legislate on the subject and by the above enactment have put restraint only on the performance of work or services, this must be accepted as abrogating the common law rule pertaining to all other contracts between a municipality and its officers. This position is untenable. Appellants rely on the maxim expressio unius est exclusion alterius. True, contracts for materials are not prohibited by the statute but there can here be no reason for invoking a maxim to give validity to a contract void at common law as against public policy simply because it does not fall within the prohibitions of the statute. As we have said, both contracts for services and contracts of sale were prohibited at common law. The legislature has done nothing more than emphasize the prohibition relating to services. It would be absurd to give effect to the statute as evidencing a change of view respecting public policy and as a declaration that all contracts heretofore within the prohibition of common law are now legal, save those directly dealt with by the statute.
Appellants rely also on the holding in Frick v. Town of Brinkley, 61 Ark. 397, 33 S. W. 527. Without analyzing that opinion to determine whether it is inconsistent with the above language, we now hold that the law in respect to contracts for both materials and work and services is as set forth herein.
Affirmed.
Harris, C. J., and McFaddin, J., dissent in part. | [
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Sam Robinson, Associate Justice.
The appellant, New St. Mary’s Gin, Inc., instituted this action to mandamus the assessor and members of the equalization board of Phillips County to assess appellant’s property in accordance with a manual published by the Assessment Coordination Division of the Public Service Commission. The complaint alleges that the property was appraised at a value of $48,000 by the assessing authorities, but that the appraised value would have been only $23,600 if the method of appraising as set out in the above mentioned manual had been used. The complaint further alleges that appellant by its attorney appeared before the equalization board and requested that appellant’s property be appraised in accordance with the method set out in the manual and that the equalization board refused to comply with such request. The complaint alleges that the Arkansas Appraisal Service Co., Inc., was employed by the County to appraise the property within the county for tax purposes; that the appraisal of appellant’s property was too high and that the appraisal value was adopted by the assessor and approved by the equalization board. In short, appellant seeks to reduce the appraised value by mandamus. Appellees demurred to the petition for mandamus. The trial court sustained the demurrer, and New St. Mary’s Gin, Inc., has appealed.
Appellant concedes that ordinarily the remedy in a situation where the equalization board refuses to lower the assessed values of property is by appeal to the county court, but contends that under the authority of Act 153 of 1955 as amended by Act 307 of 1957, the court erred in refusing to grant mandamus requiring appellees to use the valuation for assessment as set out in the manual prepared by the Assessment Coordination Division of the Public Service Commission. The Acts mentioned set forth the procedure to be followed by county assessors, county boards of equalization, the Public Service Commission, county judges, and quorum courts, in a complete program of re-appraisal of the property in this State. It appears from the complaint that pursuant to these provisions the Assessment Coordination Division prepared certain manuals which are to be used in the re-appraisal program. As also authorized, Phillips County employed a private concern to make appraisals of the property within the county. Appellant complains that the assessment of the property as made by the private concern is not in conformance with the valuation set out in the manual as required by the above enactments. The specific language relied on by appellants is as follows:
“ ‘Section 5 (A). It shall be the duty of the County Assessors and their deputies to use and follow the assessment Manuals and standards promulgated by the Assessment Coordination Department, and to use the forms prescribed and furnished by said Assessment Coordination Department in making such appraisal and assessment and to collect and record the date [data] thereby required. It shall also be the duty of the County Equalization Boards, in performing their duties, to recognize and follow such Manuals and standards, and the County Equalization Boards shall not change an assessment made by the County Assessor unless such change is necessary to provide uniformity in the assessment of similar classes of property. It shall also be the duty of the County Judgés, in hearing appeals from the County Equalization Boards, to recognize and follow such Manuals and standards, and a County Judge shall not change an assessment unless such change is necessary to provide uniformity in the assessment of similar classes of property.’ ”
“SECTION 13. All duties imposed by this Act on all state and county officers are hereby declared to be mandatory, and any officer who neglects, fails or refuses to perform any such duty shall be subject to removal from office and liable on his official bond for such neglect, failure, or refusal. Upon the refusal or failure of any state officer to perform any duty imposed upon him under the provisions of this Act, any citizen of the State may, and the Attorney General of the State of Arkansas shall, institute in the proper court mandamus proceedings to compel such state officer to perform his duties. Upon the refusal or failure of any county officer to perform any duty imposed upon him under the provisions of this Act, any citizen of the county may, and the Prosecuting Attorney of the district including such county shall, institute in the proper court mandamus proceedings to compel such county officer to perform his duties.”
It should be pointed out that the above language must be read in the light of the entire Act. Section 2 thereof contains the following expression:
“SECTION 2. The Arkansas Public Service Commission (in this Act hereinafter called the ‘Commission’) shall furnish guidance, instruction and assistance to the County Assessors in the performance of their duties under this Act. The Commission shall not have the authority to assess or re-assess any property now-required by law to be assessed by County Assessors, or to order the assessment of the property of any designated taxpayer at any specified amount. It is the intention of this Act that the Commission have and exercise the duty and responsibility of coordinating and supervising the work of the County Assessors and County Equalization Boards in such manner as to provide uniformity of methods, procedures and results in the several counties of the State.”
We have heretofore held that a taxpayer cannot enjoin an assessment where he has failed to exhaust his remedies of appeal from action or inaction by the county board of equalization. Jones v. Crouch, 231 Ark. 720, 332 S. W. 2d 238.
In the case of State v. Board of Directors, School Dist. of Ashdown, 122 Ark. 337, 183 S. W. 747, we said: “As early as Fitch v. McDiarmid, 26 Ark. 482, this court held that mandamus, with us, is not a writ of right, but is one within the judicial discretion of courts to issue or to withhold, and that a party, to be entitled to the writ must show that he has a clear legal right to the subject matter, and that he has no other adequate remedy. . . .
“In Fitch v. McDiarmid, supra, many authorities are cited, and among them the court quotes the following from The People v. Thompson, 25 Barb. 76 [N. Y.]: ‘The invariable test by which the right of a party, applying for a mandamus, is determined, is to inquire, first whether he has a clear legal right and if he has, then, secondly, whether there is any other adequate remedy to which he can resort to enforce his right; if there is, he can not have a mandamus. The writ only belongs to such as have legal rights to enforce and find themselves without an appropriate legal remedy.’ ”
To the same effect are Patterson v. Collison, 135 Ark. 105, 204 S. W. 753, and Snapp v. Coffman, 145 Ark. 1, 223 S. W. 360. Act 153 of 1955, § 13, does not authorize mandamus where there is an adequate remedy by appeal.
It appears to us that the type of conduct for which mandamus would lie under the Acts in question is not the kind complained of in this instance. Here the county assessor was engaged in a program of re-appraisal as prescribed by the Legislature. The alleged erroneous assessment was not the result of failure on his part to act, but arose out of the mechanics of going forward with the reassessment program. Appellant was provided with a method of appeal from the board of equalization. Ark. Stat. § 84-708. This he did not choose to do.
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George Rose Smith, J.
This is a workmen’s compensation claim by the appellant, for an injury to his foot. The commission denied the claim upon the single ground that the claimant, at the time of his injury, had completed his day’s work at the job site and therefore (we infer) was barred by the coming and going rule. The circuit court affirmed the commission.
The facts are undisputed, so that the issue is one of law. The claimant’s employer, Chemical Construction Company, was engaged in a construction job for Monsanto Chemical Company. To reach the job site upon Monsanto’s extensive premises the construction company employees had to pass through two gates. The first gate abutted the public highway and could be entered by anyone without special permission. The second gate, apparently a mile or more down a private road from the Highway gate, provided access to what is referred to as the critical area, which was surrounded by a high cyclone fence. Upon entering or leaving this security gate the construction company employees were required to show their identification cards. Monsanto maintained a parking area outside the security gate, where the construction employees were required to leave their cars.
The job site was deep within the critical area, a mile from the security gate. The claimant and his fellow employees were paid for a workday ending at 4:30, but Monsanto required that the critical area be cleared by that time. To this end a whistle was sounded at 4:12, which gave all the employees, some 250 in number, eighteen minutes in which to walk to the security gate and leave the critical area.
On the afternoon of Davis’s injury he quit work at 4:12 and started walking toward the security gate. On the way he and several other workmen caught a ride, which was not unusual, upon a truck belonging to an electrical subcontractor. At the security gate the several oc cup ants of the truck were duly identified and permitted to leave. (The commission held that compensation coverage ended at that point.) As the truck was traveling toward the parking lot Davis saw that his son, who was working for a subcontractor, had gotten the Davis car from the parking area and started toward the security gate to meet his father. Davis called to the driver of the truck to slow down so that Davis could alight. As he was getting off the truck Davis caught his foot and sustained the injury for which compensation is sought. It was not yet 4:30 when the accident happenód.
We think the injury to be compensable, for the case falls within the premises exception to the coming and going rule. This exception was discussed in Johnson v. Clark, 230 Ark. 275, 322 S. W. 2d 72, although there compensation was denied because the employee had actually left his employer’s premises. By this qualification of the coming and going rule it is recognized that an employee is entitled to a reasonable time to leave his employer’s premises and that an injury suffered within that interval may arise out of and in the course of the employment. The principle has often been applied in cases involving a parking lot maintained by the employer; the cases are collected in Schneider on Workmen’s Compensation (Permanent Ed.), § 1719.
We do not attach controlling importance to the fact that this parking lot was owned by Monsanto rather than by the claimant’s employer. The premises exception is not based solely upon the master’s opportunity to make his own property safe and thus minimize the possibility of injury to his employees; for negligence is not an essential factor in compensation cases. Of equal weight is the fact that the employee is upon the premises by reason of his job, so that his injury has the necessary causal connection with his employment. For a case in point see Downey v. Vanderlinde Elec. Corp., 276 App. Div. 1044, 95 N. Y. S. 2d 685. It does not seem to us that Davis should be held to have left his employer’s premises until lie had passed through the second gate and joined the general traveling public.
Reversed. | [
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Jim Johnson, Associate Justice.
This case involves a claim for damages arising out of a breach of warranty.
In 1958, appellee, Harold B. Wright, purchased five lots in Block One of Wilson’s Third Addition to the City of Blytheville, from appellants, Joe Gude and Yelma Gude, his wife, and Orval Gude and Margaret Evelyn Gude, his wife, for a total consideration of $10,000. The conveyance was made by warranty deed and upon execution and delivery of the same appellee paid appellants $1,000 of the purchase money and executed three notes for the balance. These notes were secured by a deed of trust on the property sold.
On October 3, 1958, appellee filed suit alleging that after he started his foundation for a building, Drainage District No. 17 gave him notice to remove part of this foundation extending south on part of the drainage district easement for right-of-way for Ditch 37; that said easement extends onto these lots a distance of 34 feet, and appellee asked for damages by reason of breach of warranty. He secured a restraining order to prevent the appellants from disposing of the three notes.
Appellants denied the claim of appellee for damages, and alleged that the appellee was familiar with the location of the drainage ditch and purchased with full knowledge of the conditions; that the easement for right-of-way was a matter of record, and the appellee is charged with such record. When the appellee’s suit was filed, the appellants filed cross-complaint making their grantors, Mrs. Molly Sternberg, and Blytheville Development Company, parties. Mrs. Sternberg then made her grantor, the Georges, parties to the suit.
The cause was submitted and heard upon the pleadings, exhibits, records, testimony of several witnesses taken in open court, and stipulations of counsel placed in the record; from all of which the learned chancellor decreed as follows:
“1. That the plaintiff, Harold B. Wright, do have and recover of and from the defendants, Joe Gude and Yelma Gude, his wife, and Orval Gude and Margaret Evelyn Gude, his wife, the sum of $1,416.66, for breach of warranty; that said amount is adjudged to be a set-off against the $9,000 balance of the purchase prices of the lots involved, leaving a balance as of September 12, 1958, of $7,583.34 due said defendants, plus interest thereon from said date until paid and judgment is hereby rendered against the said plaintiff in favor of said defendants for said sum, plus six per cent interest from September 12, 1958, until paid.
“2. The plaintiff is hereby given 30 days from the date of the entry of this decree in which to pay the amount of said judgment; and if said amount is not paid to the defendants or into the treasury of this Court, the defendants may apply to the Court for decree of foreclosure under their purchase money deed of trust. Payment into court will stop interest on said money. The plaintiff to have judgment for his cost herein expended, ■which, may also apply as a credit on the judgment in favor of the defendants.
“3. That the temporary restraining order issued herein was proper but there is no longer any need for same because the defendants Crude have brought into Court the notes given for the balance of the purchase price of the said property in the amount of $9,000 and therefore same have not been negotiated or sold; and the surety on the bond for restraining order obtained by the plaintiff, Harold B. Wright, be and is hereby discharged and exonerated together with the principal upon said bond from any liability by reason thereof.
“4. Any and all issues between the defendants and the cross-defendants are reserved for further consideration and determination by the Court upon application of the said parties.”
From such decree comes this appeal.
On trial de novo we find the record reveals that the lots here in question join one another and make as a complete whole one lot 160 feet by 600 feet: That the lots were bought for business purposes because of the 160 feet of frontage on U. S. Highway No. 61: That the drainage ditch is located on the section line and the invisible easement for right-of-way is 100 feet — 50 feet on each side of the center of the ditch: That the easement on the north side of the ditch does extend 34 feet over on the south side of the lots here involved; That no part of the ditch is located on the lots: That the extension of the drainage district right-of-way for said ditch, being in existence at the time of platting and selling of the lots involved, the existence of which failing to appear on the recorded plat from which appellee purchased, is a breach of the covenants of warranty contained in the deed from appellants to appellee: That appellee has been legally evicted to the extent of the easement : That the south 34 feet of appellee’s property was useless for his purposes since he planned to construct buildings on his property fronting on U. S. Highway 61: That in addition to appellee’s estimate of damages sus tained in the amount of $2,100 or $2,200, there was ample competent evidence adduced from an experienced realtor to sustain the amount of damages found by the Chancellor.
It is a well settled rule of law that covenants of warranty are taken for protection and indemnity against known and unknown encumbrances or defects in title. Knowledge or notice, however full, of an encumbrance, or of a paramount title, does not impair the right of recovery upon covenants of warranty. See: Magee v. Robinson, 218 Ark. 54, 234 S. W. 2d 27; Texas Company v. Snow, 172 Ark. 1128, 291 S. W. 826.
Concluding, therefore, that the weight of the evidence on the whole case supports the findings of the Chancellor, the decree is affirmed. | [
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English, C. J.
At the March term, 1883, of the circuit court of Horsey county, William Greenlees was indicted for needlessly killing a living creature, the indictment alleging that said Greenlees, in the county aforesaid, on or about the fifteenth day of December, A. D., 1882, did unlawfully and needlessly kill one red, sandy-colored, barrow, marked crop off the left ear and split and underbit in the right, of the value of twelve dollars, and of the personal property of C. W. Willingham, contrary to the statute, etc.
The defendant demurred to the indictment on the following grounds:
1. “That the facts alleged in said indictment do not constitute a public offense, because the indictment fails to state the manner of the killing of the said sandy-colored.barrow hog.
2. Because there is no statute in this State fixing any punishment for cruelty to animals as charged in said indictment..
3. Because the indictment is so- indefinite and uncertain that the defendant cannot know what he is called upon to answer.
4. The indictment fails to show the particular circumstances of the killing so as to constitute a public- offense-under the statute of this State, etc/’
The court sustained the demurrer, and discharged the accused, and the State appealed.
I. In an indictment for murder, the manner of the kill-mg is alleged, as by shooting, stabbing, drowning, poisoning, etc., but this is not necessary in an indictment under the statute for needlessly killing an animal, which is but a misdemeanor.
II. The act for the prevention of cruelty to animals * J (jlcts of 1879, p. 54), makes the forbidden cruelty, or needless killing, etc., a misdemeanor, but does not provide how such offenses are to be punished. They are therefore punishable by fine or imprisonment, or both, under a general statute which provides for such omissions. Gantt*a Dig., sec. 1996.
III. The accused was sufficiently informed by the indictment of the character of the offense with which he was-charged.
In Grise v. State, 37 Ark., 456, the indictment simply-charged (with an averment of time and place) that the accused did unlawfully and needlessly kill a hog of the value of five dollars, being a living creature. The court held that no allegation of value or ownership was essential, and treated the indictment an sufficient. In this case the indictment not only alleged that appellee did unlawfully and needlessly kill a barrow, but more particularly identified the animal by describing its value and the name of the owner.
The learned counsel who interposed the demurrer for appellee, seems to have understood that the word “barrow” indicated an animal of the hog family, and doubtless his client, as to that, was equally well informed.
IV. It was not necessary to aver in the indictment the particular circumstances of the killing.. The principal that appellee unlawfully and needlessly killed the animal, were alleged, and the particular circumstances of the killing were matters of evidence to be shown on the trial.
Reversed and remanded to the court below with instructions to overrule the demurrer and require appellee to plead over to the indictment. | [
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Eakin, J.
This suit was instituted before a justice of the peace by R. B. and H, C. Duty, mortgagees of John H. Hamiter and wife, against Geó. W. Cheatham to recover three bales of cotton. They were taken under a writ by the officer, and, we presume, delivered to plaintiffs. Hamilton & Co. were allowed to defend as real claimants* instead of Cheatham. Upon trial before the justice the property was found to be that of plaintiffs, On appeal a like finding was made in the circuit court, and judgment was rendered accordingly. After proper steps to make and bring up the record, Hamilton & Co. appealed to this court. This is the same case which was before this court on a matter of pleading and practice in 36 Arle., 474.
The material facts, about which there is no conflict in evidence, are substantially as follows :
Hamiter had rented lands to Sol. Brooks for the year 1878, and had taken his note for the payment, as rent, of three bales of cotton and some com.
On the sixth of April Hamiter, who was owing the firm of Hamilton & Co., turned over to them this rent note on account, with some other notes of like nature from other tenants. He says that he had no money to pay them, and that the said firm, through their agent, requested him to turn over these notes. He says: “I told him I did not like to do it, as I had promised plaintiffs a mortgage on twenty bales of cotton of the year 1878 ; and the plaintiffs were running and furnishing me and my wife for the year 1878. He said that if I didnot pay something that he would have to sue me. I told him I would turn over some rent notes, Sol. Brooks’ note being one, if he would not sue, but that I had promised to give plaintiff a mortgage on twenty bales of cotton of the crop of 1878, and he would have to wait until plaintiffs were satisfied and paid all that I and my wife would owe them. I told him I thought I would have* cotton enough to satisfy both Hamilton & Co. and plaintiffs, if I could get what was coming to myself and wife. There would have been about thirty-five bales. These notes were turned over with this condition, that plaintiffs were to be paid first.”
The receipt given by Hamilton & Co. for the notes did not notice any such* condition, stating only that they were received for .his account. Hamiter says he tried to have the conditions putin writing, but the agent said, “all right; there would be no trouble about it. ”
Afterwards, on the nineteenth of April, Hamiter informed the plaintiffs of this, and then proceeded to execute to them the mortgage upon which they rely. The. expressed consideration is one dollar,and the further amount in full Avhich the mortgagor and wife may be owing R. B. and H. C. Duty, the mortgagees, on the first day of December, 1878. The property conveyed is described as follows : ■“Our entire crop of cotton to the extent of fifteen bales, of the average weight of five hundred pounds, of the crop that we may have planted, raised and gathered, or received for land rent in the State of Arkansas and county of Lafayette, during the year 1878,” The whole to be void if the mortgagors (meaning thereby Hamiter and wife) ■should pay to Duty & Co. all that might be due on or before the first of December, 1878. A power was given in ■case of default to take possession and sell.
The three bales of cotton in controversy were raided by Sol. Brooks, and by him delivered, after being ginned, to Cheatham, who appears to have been holding it for Hamilton & Co.
His honor, the circuit .judge, amongst other things not 'Important to notice, declared upon the hypothesis of the facts above stated that'the firm of Hamilton & Co. was estopped from claiming or holding anything on the rent notes assigned to it, until the mortgage to Duty & Co. was satisfied. The whole case must turn upon the soundness or ■error of that instruction. It is not definitely shown how much if anything was due the Duty firm on the first day of December, 1878, but there is enough to raise a fair inference that enough was due to cover the cotton, and the ■appellant makes no point of the defect in his brief.
This is an action at law, being replevin. The peculiar ■doctrine of courts of equity can not be applied. I mean those administered inequity, of which the common law took no cognizance, and which have not, by statute, been made to ■govern cases at law also. This statutory transfer of legal ■cognizance has been made with regard to future crops ; and mortgages of that kind formerly void at law but cognizable in equity, and enforced there through the machinery of implied, trusts growing out of contracts,are now made valid, ■both in law and equity.
If Hamiter owned the rent note of Brooks, or had any Tight to the cotton demandable on it when he executed mortgage to the Dutys, the question would presenta ent aspect, one unnecessary here to discuss. The only -question indeed would be whether the rent cotton could, ■under the statue, be considered a part of the landlord’s ■<yrop, in the meaning of the statute legalizing mortgages of future “crops and their products.”
But by the terms of the endorsement to Hamilton & Co., and by the receipt which he took, neither of which contain any conditions or reservations, the whole title and right of Hamiter to demand or receive anything of Brooks, either then or at any future time, passed out of the former to the firm of Hamilton & Co. It would be inconsistent with the •endorsement to hold that only a limited interest was as signed. When the mortgage was made to the Dutys it is-evident that Hamiter had no interest to convey,, present or prospective.
This is not a bill in equity seeking to affect Hamilton &, Co, with an equitable estoppel, orto hold them trustees of the cotton under their parol contract, to be used first to-make the Dutys whole, either because of fraud or express-acceptance of a trust. These are matters of equitable jurisdiction, not appertaining to justices of the peace in actions of replevin. Nor do we mean to assert that the proof in this case would sustain a decree in equity. What we do say is that no legal title nor right to this cotton passed to-the plaintiffs, and that in this action, upon the pleadings- and evidence they should recover nothing..
We think there was error in the declaration of law above set forth and in the judgment based upon it.
Reverse and remand for a new trial with usual directions.. | [
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OPINION.
Eakin, J,
The general election law of January 23d,1875„ (p.92, acts 1874 and 1875), makes it the duty of thecounty court, at the last term held more than thirty days before-any general election, to appoint three jndges of election in, each township, to continue in office until the next general election ; and provides that the judges shall select two persons to act as clerks. If the county court should fail to-appoint them, or if those appointed should fail to act, then, the voters, when assembled, may appoint them, (secs, 3, 4- and 5), It is made the duty of the county clerk in advance-of each election, to make out and deliver to the sheriff two blank poll-books for each township, properly laid off in columus, with proper captions, and forms of oaths and certificates attached thereto ; with pages sufficient to record the-names of the voters. These books are to be delivered to-the judges of the election. (Secs. 14 and 15).
At the election, the clerks are required to register the-names of all the electors, with appropriate numbers, in the, order iu which they present their ballots, and at the closing-of the polls, it is required that the poll-books shall be signed by the judges and attested by the clerks, and that, the “names” therein shall be counted and the number set-down at the foot of the poll books. After the poll books are thus signed, the count of ballots shall proceed, each ballot passing through the hands'of every judge until as many shall be counted as there are names on the poll books. The clerks, meanwhile, aie required to enter on “a list or poll book,” in separate columns, under the name or names of the persons voted for, the number of votes given for each person, as read by the judges; and shall, moreover, write out in a legible hand, the number of votes given for each person respectively. Then after enumeration under the inspection of the judges, and after the numbers shall have been set down at the foot of the column in the list or poll books,- and public proclamation of the result, it is made the duty of the judges to certify under their hands the number of votes given to each person, and the office, which also shall be attested by the clerks. (Secs. 32 to 40). It is then the duty of the’judges before dispersing, to put one of the poll books under cover, and seal the same, and direct it to the county court clerk, to be delivered to him by one of the judges. The other is to be retained by the judges free for the inspection of any body. It is then the duty of the clerks on the fifth day after the election, or sooner if all returns are in, to take to his assistance two justices of the peace, or, if more convenient, two house holders, and to-open aud compare the returns and make abstracts of the votes given for the several candidates on separate sheets of paper, which shall be signed by any two of the canvassing-board and deposited iu the clerk’s office. It is provided that this canvassing or comparing shall be done openly and publicly, after proclamation at the court house door; that informality inthe certificate of the judges and clerks shall not •cause any poll book to be rejected, and that the votes shall be added and counted regardless of any informality whatever, unless it be such that they are unable thereby to arrive at the result, or the true intention of the voters. Certified copies of these abstracts are to be sent to the secretary of state. It is made a high misdemeanor, punishable with fine and imprisonment, in the clerks and justices, or house holders, or either of them to reject or refuse to count the vote shown by any poll book. (Secs. 46 to 52).
^ will thus be seen that the board of canvassers have no judicial discretion whatever — that they are merely for the purpose of a fair and correct computation of the votes under public surveillance, upon the face of the poll books presented to them by the clerk, one of their number; and that they have no authority to reject any poll book which comes to them certified, in form and matter, substantially in accordance with the provisions of the statute, regardless of informality or irregularity; provided it be intelligible to indicate the true intent of the voters. Other provisions are made for securing the fidelity of the judges and the identity of the poll books until the}'- reach the county clerk. The judge, to deliver each one, must be designated by lot, if not bv agreement, and upon failure to perform the duty, he is liable to indictment and a fine of $200.
It is plain enough from the evidence that the poll books from all the townships and wards in the county were those actually used and made up by the officers holding the elec- ' J ® ^011 > that they are substantially authenticated in accordance with the statute ; and that they contain no internal indications of fraud. It is to be observed that the clerks are not required to certify anything. It is the judges who sign the poll books, and certify the number of votes. The clerks merely sign as witnesses of their signatures, so that it can make no difference, that the clerk attesting wras not serving as clerk when the election began. This was the case in one ■of the townships, where a change of clerks became necessary.
In one of the townships, one of the judges, and in another, two, were not the same as those appointed by the county ■court. But the statute contemplates substitution in certain cases, by the voters, and no mode is prescribed for doing it, or certifying that it had been done. In the absence ■of proof to the contrary, especially where it appears that the judges who certify were sworn and acted, it will be pre-sumed it was done.'
One poll book was sent up in a box tied with a rope. This is not sealing, and is but a rude substitute for it, but when the poll book is identified and has no appearance of having been tampered with, it would be absurd to disfranchise all the voters of the township on that account.
The court correctly ruled that the majority of the canvassing board transcended its authority in rejecting any of the poll books. The prima facie case of the plaintiff was thus -established, and the onus devolved upon the defendant of showing, aliunde, that notwithstanding he was not properly •entitled to the certificate which formed the ground of his commission, yet, that he really received the majority of legal votes, or of those which could be properly counted, and was thus, as against the plaintiff, entitled to retain the commission. His position is shifted to that of a contestant, and he is required to maintain his cause, as if the commission had been properly issued to Coates, and he were seeking to avoid it. This he might do by showing fraud, or the equivalent of actual fraud, in the election officers in any township. This would, of itself, vitiate the election in that township. ■■Or he might show such fraud, intimidation, coercion of votes, or system of illegal voting on the part of others, not •officers, as would change the result, or render it uncertain ; «or might show such a number of illegal votes for his oppo nent, in excess of illegal votes for himself, in the whole-county, as would change the result. The issues made by the pleading's are broad enough to admit of proof upon each, and all of these points. If, by any of these modes separately, or by all collectively, it should be shown that the defendant had received a majority of the votes which ought' to he counted, he should prevail. Otherwise, the prima. facie case of the plaintiff upon the returns would remain unshaken.
By “votes which ought to be counted,” wc mean to imply the exclusion of particular illegal votes received, and the count of particular legal votes rejected, in any township or ward of the county, within the scope of the issues made, although the main vote of the township be not rejected ; and also the total exclusion of the whole vote of the townships-when there has been perpetrated such fraud, or violence, or coercion, or combination for illegal voting, as to change the-result or render it uncertain ; or when there has been shown such fraud on the part of officers of the election as should: discredit the returns.
There is a distinction, in the nature of things, between-particular illegal votes which ma3r be proven and exactly computed, and which certainly ought to be excluded, where-ever cast, and the effects of fraudulent combinations, coercion, and intimidation. It can never be precisely estimated how far the latter extend. Fraud is secret, and timidity-shrinks from observation. Their effects depend on moral-perversions, nervous organizations and constitutional idiosyucracies. They cannot be arithmetically computed. Awe-is silent and undemonstrative. Peace maybe abject as well as the result of satisfaction. Yet it cannot be said that elections are “free and equal” where fraudulent combinations for illegal voting- override honest votes, or where fear deters from the exercise of free will, although there may be no turbulence. It would be to encourage such things, a& the ordinary machinery of political contests, to hold that they shall only avoid to the extent their influence can be •computed. It seems clear that courts must abnegate the power of preserving the freedom of elections, and abandon the polls to the violent and unscrupulous ; or must take the .ground, that wherever such practices or influences are shown to have prevailed, not slightly and in individual cases, but generally, and to the extent of rendering the result uncertain, the whole poll must be held for naught. The evils of an occasional success of a minority, if that should sometimes happen in the effort to sustain the fundamental principle of our government, would be but temporary; and in ■any case would be but slight, in comparison with the subversion of free government, which would surely follow the •continued practice of rendering the freedom of elections a mockery.
And by the “result,” it is to be noted, we mean the result in the county or district, or State, where that result depends upon the aggregate vote. There can be no other sensible application of the rule. For instance, if in all the undisputed townships at a county election, one candidate should have an aggregate majority of 500, and in another township his opponent should receive a-majority of 505, and it were shown, moreover, that fraud, violence and intimidation in behalf of the latter had been used in that township with uncertain effect, it would not be required to show that it was uncertain whether or not, without it, he would have received a majority in that township. Perhaps his legitimate majority might have been 499, but that would not elect. It would bo sufficient to show that, but for the improper practices, it is uncertain whether or not his majority would have exceeded 500 votes. Here a very few fraudulent votes would actually change the result, but his opponent would be helpless if he could not show a reasonable ground of apprehension that the fraudulent votes or suppression of votes amounted to 505 or more. In the case supposed, six fraudulent votes would change the result, and it would, in order to exclude the township, be sufficient to show reasonable grounds for believing that the fraud or hostile influences,, had made a difference of six in the majority of the township ,* in other words, to show that without the fraud, &c., it-would be doubtful whether or not the majority of the vote in the township would have exceeded 500.
Upon the other hand, it devolves upon the courts not to press this principle too far, nor apply it lightly to slight indications of fraud, violence or intimidation. Its application, indeed, is a matter of the gravest and most anxious responsibility, inasmuch as it involves, necessarily, the disfranchisement, in the particular election, of all the honest voters of the township. The wrong should appear to have-been clear and flagrant; and in its nature, diffusive in its influences; calculated to effect more than can be traced: and sufficiently potent to render the result really uncertain. If it be such, it defeats a free election, and every honest voter and intimidated or deceived voter is aggrieved thereby. It is his interest to sacrifice his own vote to right the evil. If it be not so general and serious, the court cannot, safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected.
By these principles of purgation, which we take to be indubitable, the main issues in this case must be tested and determined. They are not new, but have been applied in other States, and in most points are conceded by counsel in their briefs and arguments. Their application in this State-is more imperative, on account of the express declaration and injunction of our organic law. The 2d Section of Art. Ill of the Constitution declares, that, “Elections shall be free and equal,” and that “no power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage.” This would be a dead letter, if fraud and in timidatiou could produce its fruits, unless those who were the victims could dearly show that, without them, the result would have been different. It is a great concession to human folly, and human excitement, to require them even to show that the improper practices rendered the result uncertain.
Before proceeding, however, to consider the principal question upon the facts of the case, some minor points require attention.
It is contended that the court ei'red in refusing a continuance. The motion for it was based upon two grounds :
1st. Want of time to prepare the evidence, generally, after commencement of the suit.
2d. The absence of certain witnesses, bjr whom defendant expected to prove facts material to show that there had been fraud, coercion, intimidation and illegal voting in the election, to the detriment of the defendant.
The grounds, the expected evidence, and due diligence were explicitly set forth in detail, and we may say, at once,, that in a matter involving private interests, a fair ground for a continuance was made. It is evident, however, that in this peculiar class of cases, the public has an interest in their speedy settlement; and that the object of the contest would be defeated by delay, and that irremediably. There should be no delay without strong reasons ; and a refusal of' a continuance would not, without gross injustice shown, be imputed to a Judge, as an abuse of discretion. The statute provides, generally, for the contest of elections for county and township officers to be made before the county court* and contemplates haste. If fifteen days have elapsed since the election, it directs that the determination be made at the first term, or if less .than fifteen days, then at the second term ; and that it be made in a summary way. It is also provided that the contest shall be commenced in six months. With regard to the office of county judge alone ■of county officers, it is provided, with manifest propriety, that the contest shall be “by complaint filed in the circuit •court, as other actions at law.” We understand this to refer only to the mode of beginning the action, and not to the ■subsequent proceedings, so as to put a contest of this sort in all respects upon the footing of an action for private property, or damages. The same public reasons prevail for summary proceedings in the determination of the matter. It was but a reference to another tribunal of a matter which could not be determined in the county court. For this reason, too, we held in Wise v. Martin, 36 Ark., 305, that neither party was entitled in the circuit court to demand a trial by jury.
It is quite plain that the defendant had reasonable grounds to anticipate a contest 'within the six months, and -was ad-wised by the law that if made, it must be speedily and summarily determined. It would have been a matter of ordinary prudence, to have, all the time, been preparing for his ■defense. ITe could not be ignorant that he had obtained his ■commission through a gross misapprehension of duty, on the part of a majority of the canvassing board; and that, when called upon, he would be required to show, aliunde, that he was entitled to it, nevertheless.
The evidence of the absent witness was important, but was concerning facts which must, in their nature, have been proveable, if true, by a great many other’s. Fraud, violence, intimidation and coercion sufficient to change the result of an election, could not have been effective without coming to the notice, if not of everybody, at least of a great many. Under the circumstances we do not think the circuit judge abused his discretion in refusing the continuance.
Many witnesses were asked if in their opinion, from all saw at the polls, and basing their judgment upon it, there was a free and fair election. They were not allowed to answer, and we think properly. Such evidence, if gener ally admissible in election cases, would be extremely dangerous, from its liability to abuse. Whatever may have ‘been allowed in political assemblies, in contests for seats, cannot guide us as precedents in determining questions of strict law. Courts act upon settled rules of evidence, and no rule warrants the introduction of such opinions. They are but the results of the judgment.
The manner, appearance, cries, tones and gestures of a mob are facts and may be shown — that is, whether angry •and determined and serious, or jocular and sportive, but the court or other tribunal must form its own opinions as to the probable effect.
A witness testified that on the morning after the election,7he took a train at Little Rock, bound for Arkansas Citjr that he found upon it a crowd of about 25 colored men, who got off at Varner station, beyond Pine Bluff, which we know to be far beyond the limits of Pulaski county; that they carried in their hands yellow tickets, such as had been •used in balloting in Pulaski county for the plaintiff on the ■day before ; that they were met upon the platform at Varner, by another crowd of colored people, and that witness overheard the conversation between them. The defendant then offered to prove by this witness, that the arriving crowd displaying the yellow tickets, stated to the others, that they had not only voted that ticket on the day before, but had voted it in two wards of this city, and in Big Rock township of this county. The evidence was not allowed.
If the foundation proof had gone to the extent of showing that this traveling crowd were not residents of Pulaski county, and consequently not electors there, the declarations might plainly have been considered, in connection with other evidence, as part of the res gestee of the- election ; and as tending to show a fraudulent combination for the introduction of non-resident voters — there being other evidence tending to show the same thing. That the circumstances were sufficiently connected with the election, in time and sequence, to partake of the nature of res gestee seems plain. The crowd was plainly going from the election to their destination, with tickets in their hands, similar to those they said they bad used in voting. There was no positive proof that they were non-residents, but the circumstances justified a strong inference that they were. Their going immediately after the election, in a crowd, without explanation of other business to take them away from homo; their being evidently expected by the crowd on the platform, and their-interest in the election, are all pregnant with the conviction that they lived near Varner, and had gone to Pulaski to-vote. They were evidently proud of the success of their-mission, and thought they had done a laudable thing. Even without proof of non-residence in Pulaski, they did boast-of their feat in successful repeating in the contest now in question. The declarations might well enough have been considered in connection with other evidence as tending to show a fraudulent conspiracy to secure the success of the yellow ticket by repeating votes. Notwithstanding some conflict on the question as to whether or not the declarations-of a voter, as to the fact of his voting, and how he voted, should be received, we incline to the opinion that they should be, when the purpose is not to reject the particular votes, but to show the existence of a fraudulent combination, by declarations composing a part of the res gestee.. They stand upon the principle of the cries of a mob. We-think the judge should have heard the evidence for what he might consider it worth. People v. Pease, 27 N. Y., pp. 45, 52 ; McCrary on Elections, sec. 270. Whether or not his refusal to do so materially prejudiced the defendant, in its result, is a question to arise further on.
The courfc that the poll books and certificates of the election officers of the townships, returned to the clerks, might be used as oprima facie evidence of plaintiff’s election - It is objected that the}7 cannot be made instruments of evidence. That no provision is made for their preservation. That when the canvassing board has used them, in making their abstract, they have fulfilled their function, and cannot afterwards be regarded. We do not assent to that view. No special directions are given for their preservation, it is true, but they ought, nevertheless, to be preserved by the clerk. They are essential to determine whether or not the canvassers have done their duty. They are, at least, the documents upon which alone the canvassers can act. They make the foundation of the abstract, and must necessarily be looked to in determining how the abstract should have been made. Records are not the only kinds of primary evidence.
In settling the law, the court in its soqond declaration made on the pai't of plaintiff, said : “That in order to impeach and set aside the returns and result as shown by the poll books and certificates of the judges of election, on the ground of intimidation and violence, it must appear from all the facts and circumstances in evidence, to the satisfaction of the court, that there was such a manifestation of intimidation or violence, as would have influenced men of ordinary firmness, circumstanced as were the voters ; and that, by reason thereof, voters were actually prevented from voting as desired, to such an extent as would have changed the result ; or that by reason of it, the true result cannot be ascertained with certainty. ’ ’ And in the third declaration the court adds:- “Slight disturbances, at any poll, even sufficient to alarm a few of the more timid, which do not materially affect the result, or render it uncertain, or the freedom of the election, are not sufficient to declare the election void.”
The third declaration of the point covered presents a correct view of the law. The second does also, save as to the qualification that the intimidation must be such as ivould have influenced men of ordinary firmness. Unless we take for granted, what cannot readily be admitted, that the timid and nervous class constitute a body of our citizens too small to be estimable, or too insignificant to be protected in the exercise of the right of franchise, we cannot say that they may be deterred from voting, with impunity from consequences, provided the means of intimidation be so carefully chosen as not to affect men of average firmness. The body of men who shrink from danger and suffering and inconvenience, where they have no direct personal object to be accomplished by incurring them, is sufficiently large, in every community, to make it a temptation to intimidate them, especially in close elections.,' Our Constitution does not recognize the policy of the selection of the fittest to exercise the right of franchise. The true rule is expressed in a former part of this opinion, and was indeed declared by the court on'motion of defendant. It is this, that intimidation will vitiate the p>oll if it has been sufficiently powerful to change the result, or render it uncertain what the true result would have been without it, regardless of the personal courage of the voters deterred. Upon no other basis can there be a free election. It will not be contended that the vote of a cowardly and nervous man is less sacred than that of the boldest and firmest, or that intimidation becomes more harmless as it becomes easier. Where majorities govern, it is important that all should vote freely, and if any cannot, it is not they alone who suffer the consequences of their timidity. All others suffer who look to their free vote for the support of the same candidates or the same policy. So far as the judgment of the court was influenced by the declaration of law upon this subject, made for the plaintiff, it tended to an erroneous view of the amount and force of evidence required.
This brings us to consider whether or not the findings of the court as to the facts were correct, and if correct, was the law properly applied to the judgment? The circuit judge found that in three of the voting precincts there had not been an entirely free and fair election. Two of these, Eastman and Eagle, he excluded from the coupt as shown by the returns. In the third, which was the sixth ward of Little Rock, he found much to reprehend, which he did in strong language, but he was of the opinion that the fraud and intimidation there, and the illegal votes in other parts of the county, were not sufficient to change the result, or to render it doubtful. The whole vote of the sixth ward was counted without any deduction, which gave the plaintiff an aggregate majority of 118 votes. His Honor conceded that there had been some 40 or 50 illegal votes, but as they would not change the result, it was not considered important to make any further estimate of them.
It is not contended in argument here by appellee that his honor erred in excluding the townships of Eastman and Eagle, nor by appellant that he should have excluded any others save the sixth ward. The appellant does contend that the sixth ward should be wholly excluded, and, also, that if it be admitted, he has proved enough illegal votes in that ward and other parts of the county, taken together, to overcome the majority for appellee.
Disposing first of the latter point, we concur with the circuit judge in finding that as many as one hundred and eighteen illegal votes for the appellee have not been clearly shown. There is, on this point, much proof of a vague and indeterminate character, but it lacks the certainty necessary to purge polls, which have been accepted as not altogether void. It may well be considered, nevertheless, upon the other question, whether it does not contribute to show such fraud or intimidation' of an uncertain character, as to cause the poll of the sixth ward to be wholly rejected on account, of uncertainty in the result. We will confine ourselves, therefore, to the.consideration of the evidence touching the sixth ward ; being either, concerning what happened there, or concerning events in other parts of the county, which explain what occurred there ; or the influence of which may have reached there. In doing this we cannot ignore what is matter of history and public notoriety, that we have in our midst a distinct class of electors, of a distinct race, who have been newly enfranchised and entitled to full equality in the exercise of the right of suffrage. The transcript discloses the fact that they had, as was their right, acted almost in a body in former elections in the support of the republican party, and that, whether from good reason or not, they esteemed every one of their color who supported the democratic ticket as recreant to his race, and worthy of reprobation, if not punishment. It is not possible^, nor wise if practicable, to shut our eyes to this fact, in view of its past consequences and the probabilities of the future. It stares us in the face in every page of this transcript. It does not become a judicial tribunal to say, and we do not presume to say, that they are misguided in this, or that the sentiment is wrong. But the court may recognize it as existing, and must take care that it ma}r lead to no illegal courses. Under the protection of the constitution, their right to entertain it can not be gainsaid, nor can their right to act upon it, within legal bounds, be questioned. It further appears that for the general election of 1882, a regular republican list of candidates for state and county officers was put forth, called the ‘ ‘yellow ticket,” from the color of the paper on which the ballots were printed. Upon this ticket appeared the name of appellee Coates for county judge, and of Oliver for sheriff, The democrats nominated no ticket; but by concert of action with some republicans, a mixed ticket called “the peoples’ ticket” was put forth jointly, containing members of both parties, and of both races. Upon this ticket appeared the name of appellant Patton for county judge, and of Fletcher for sheriff. At the time of the election, Coates and Oliver were properly holding, respectively, the offices of judge ■and sheriff, under the last election.
There is little orno evidence of improper feeling or undue excitement in the county amongst the white people supporting the different tickets, but it became apparent, during the contest, that a bitter feeling had been engendered amongst the great body of colored citizens agaiust such of their number as intended to support, what they called the Fletcher ticket. They were threatened, silenced in public meetings, .attacked and beaten, spoken of contemptuously and in a manner, cut off from the sympathy of their own race. Instances of these different kinds of maltreatment are given in evidence : especially a threat from one active colored politician to the effect that after the election the Oliver negroes would go a-gunning after the Fletcher negroes. These threats and this spirit are proven to have been in the townships where the colored population was predominant. Without taking these things into consideration, it is not possible to estimate the full meaning and import of what happened ■on the day of the election. Nor can the full meaning of what happened that day at the sixth ward be truly apprehended without assistance from the events which occurred at Eastman, Campbell and other townships. The influences brought to bear in the several townships were not isolated, but must be considered as the result of the same spirit and plan of action, operating at different localities with moi'e or less intensity.
The reasons announced by the circuit judge for discarding the polls of Eagle and Eastman townships are well supported by the evidence and are thus expressed. With regard to Eagle, he says; “That quite a number of illegal votes were cast for plaintiff by non-residents. That in one or two instances, legal voters who had desired to vote for Patton were rejected. That an armed force was around the polls all day. That they were armed with needle guns, rifles and shotguns, and that those so armed were colored men (with one exception), and supporters of the plaintiff. That these guns were stacked immediately around the polls. That fifty-three men had guns in the afternoon of the day of the election, and that quite a number of them with their guns, accompanied the officers who brought up the returns-to the county clerk.”
■ With regard to Eastman, he says: “That early in the-morning, even before the polls were opened, a large crowd of colored men, ranging from two hundred to four hundred,, surrounded the polls, a large majority of whom were supporters of plaintiff ; and by their conduct made it exceedingly difficult for a colored man, desirous of supporting defendant, to deposit his ballot. That supporters of plaintiff would forcibly take .their ballots from them, threaten to-burn their houses, throw them into the river, turn them out of church, &c., in case they voted for the ticket upon which defendant was a candidate. That, in certain circumstances* voters were so intimidated as either to leave the polls without voting, or had to be conducted to the polls under the protection of white citizens. That one Moore, a colored, man, declined to go to the polls because he would not be allowed to vote as he saw fit. That one Andrew Jackson, a. resident of Mineral township, presented himself as a voter of Eastman polls and was challenged. That said Jackson-told one of the judges (George Scott) that he lived in Mineral township. That notwithstanding this, said Scott allowed.him to vote, without swearing him, and without calling the attention of the other judges thereto. That some twelve or fifteen men in one crowd, desiring to vote “the people’s, ticket” were furnished tickets, and in attempting to vote-were set upon by a much larger ci-owd of supporters of‘ plaintiff, their tickets taken from them, and only two voted: as they wished.”
A careful review of the evidence satisfies us that his Honor' in this recapitulation, has not presented the whole of the improper proceedings at either township, which the transcript would have justified. The evidence is voluminous and not easily remembered, all at once. The salient points of it onljr are recited in these findings — sufficient, however, to justify his exclusion of the poll books, and to throw some light upon the animus and design of the proceedings going-on contemporaneously at the sixth ward of the city near at hand. His Honor, for the same reason, has fallen short of a full presentation of the facts regarding the sixth ward, although they are correct as far as they go. The evidence with regard to the different polls is much intermingled, and without a more severe analysis and rerarrangement than is possible at nisi prius, it is almost impossible to group the facts separately in the mind. We have felt impelled by the importance of the questions at issue, to undertake that labor, and find for ourselves regarding the sixth ward, as follows:—
Credible witnesses on the pai*t of defendant say, that a certain Jew peddler was prevented by threats from voting; that the republicans crowded the window at which votes-were taken, and unless a man was firm he would vote the way the crowd wanted him to ; that republican voters got to the window easily through the dense crowd, but it was-almost impossible for one with the “people’s ticket” to do-so. They were “blockaded” and insulted, and various obstacles were interposed to their progress. There seemed to be a general concentration .of opposition to the voters of the “people’s ticket.” Crowds would close up around them, and intimidate them by hooting, etc. This was kept up all day. A rush was made on Isaac Gillem, accompanied with threats, and cries of “d — d negro,” “selling out to the democratic party,”, etc. Eight or ten men with badges, claiming to be deputy sheriffs under Oliver, were there taking part in the intimidation. One of them, armed with a pistol, told a witness that he could not discuss politics there with those people. An active colored republican, Henry Clay, told the same witness to “go slow,” that they proposed to run this election, and parties who went against them had better “sing low.” The witness saw a colored man they were about to mistreat in some way, and told him to come with him, whereupon he was told himself that he had better get away, or he would be in danger. Another witness testifies that Gillem was taken off, and that he wras pursued across the street to a Methodist church, and that women were put after him. Two or three persons, apparently boys, attempting to vote, were challlenged, and not being able to give their ages, went away. They came after-wards and voted. Many strangers and unknown persons would come up and offer to vote. When challenged they would often be at a loss to tell where they lived. Active republican partisans (colored men) would answer for them, ■or prompt their answers. One of the challenged parties answered first that he lived on Barraque street, which is in Pine Bluff, but being prompted gave another locality in the ward. The attention of the judges was called to this prompting and they ordered it to stop, but it continued nevertheless, and no one was arrested or removed for persistency. A great many were allowed to vote upon their own statements that they lived in particular parts of the ward, when the statements were false and the judges were so told. One of the judges declared the principle upon which they acted to be that the knowledge of the judges should override all other testimony. Minors were allowed to vote. Those who saw these abuses being perpetrated challenged persistently — they were rebuked for it and considered troublesome — became tired of it and quit. One witness thought that a oue hundred and fifty or two hundred non-residents of the ward were allowed to vote. Another witness saw two men prevented from voting the ■“people’s ticket.” One of them was struck. The same witness says that he was himself assaulted, that he applied to the officers to protect him, and they refused to do so. That boys were around with their knives out. lie also saw non-residents and convicts vote, giving their names. Another witness testifies that he saw a great deal of intimi-, 'dation and violence. Ho calls it “a reign of terror” all day. There was screaming, swinging of clubs and drawing canes. Whoever would not vote the yellow ticket would be “pushed out.” The crowd did everything, except resorting to violence, to prevent persons from voting the people’s ticket. He saw a great many tickets snatched out of voters’ hands •and torn up — as many as 20 or 30 of them, and heard a great deal of abusive and threatening language, such as “no such d — d nigger should live here.” Another witness, confirming the prevalence of snatching, threatening and abusing, said, that most of those who desired to vote the people’s ticket went ayay, and a number of others resorted to the ■expedient of pasting the names of the candidates on the yellow tickets to be able to vote. This witness voted the people’s ticket himself, and was not alarmed, but says a groat many others were, and gives some of their names. Indeed he says that he saw no one (meaning, we suppose, of the ■colored race) who went up squarely and openly and voted the people’s ticket. Another witness saw a voter who intended voting the people’s ticket, treated with violence. He was dragged away and pulled about, and his hat knocked off.
The testimony with regard to the sheriff’s deputies, is almost universal amongst defendant’s witnesses, to the general effect that they went about with badges and were active partisans for the yellow ticket, contributing rather to prevent than compel a free election. “It 1-equired almost a fight,” says one, “to get to the polling place.” The same witness testified that he overheard a conversation at the polling place amongst a group of colored men whom he had never seen before, and heard them tell each other that they had come in, some from Pine Bluff, and some from Hot. Springs, and had voted the Oliver ticket. He too says, there was a continuons system of terrorism at the polls all , day, and that the threats against those voting the people’s ticket were “determined and in anger.” Pie saw a ease of actual intimidation from voting, and saw four colored men vote who resided, two of them, in Jefferson county and two in Mississippi.
One witness in particular, John Brodie, who was a challenger for the people’s ticket and had excellent opportunities for observation, on account of his proximity to the-polls, testifies as to the great number of strangers at the polls whose votes were challenged. He says that some of them were sworn, and in 19 out of 20 cases, the answers-would be put into their mouths by the surrounding crowd. He also testifies as to the inadvertant answer of one, made-for himself, that he lived on Barraque street. He says, too,, that many were allowed to vote without swearing, on exclamations from the crowd around that they were “all right.” He corroborates the evidence that men were threatened and hustled away, and their tickets torn up. He testifies to as-many as twenty-five who were scared and prevented from voting. Pie says’aiso, and his evidence in this is corroborated, that a great many white voters left the polls in disgust, without voting. Another witness saw men who had voted at Big Rock, repeating again at sixth ward, where he-says the election was entirely a one-sided thing, because the-colored population was crowded around the polls, aided by a few white men to control the republican vote, to the exclusion of all others.
It is consoling to turn from this sickening picture to the evidence on the part of the plaintiff, to derive some hope thereby that the foregoing witnesses, none of whom. are impeached, might, some of them, have been deceived by appearances-, or have attached undue importance to cries, or declarations, or gestures which had no serious import. ■Jerome Lewis, who was closely in attendance all day at the polls as a challenger in the republican interest (and whom the other witnesses charge with prompting voters) says that "the colored population has increased four or five hundred at that voting precinct,' thus accounting for the suspicious increase of the vote. He says he made a canvass of the ward ■after the election to get the relative strength of the colored vote, taking the names of about 875 or 880 voters to find •out where they lived. It seems he did not do so, but found •a great many of them had gone off to work, at different places out of town. He says that all the other judges in •determining questions gave way to the democratic judge. He says that when he challenged a minor and his father ■spoke for him, he would always withdraw the challenge. He knew no minor, nor non-resident, who voted, No one around the polls interfered with the people’s ticket men. 'The crowd was thick and they had some difficulty in getting up. That was all; saw no man prevented from getting his ticket in, and no noisy policemen appointed by Oliver. ‘There was one appointed by the mayor. In one point his testimony discloses á somewhat singular view of the freedom of franchise, which may, or may not, be the prevailing ■sentiment of his race. Using his own language as taken down in the transcript, he says : “We colored men tried to ■compel colored men to vote as they had claimed to be going to vote, before the election. ” “All I did, and other’s did, was to make them vote for the party. ”
The democratic judge at the polls testified for plaintiff "that there was nothing alarming about the election. A woman might have voted. Still there was some things he did not like. Especially that thing of others answering for •challenged voters, and putting words in their mouths, -in which he says that Jerome Lewis with others was engaged, He protested against that. Can’t say how often it occurred. Generally, he says, the judges were .always satisfied that a voter was qualified, but in the special cases of four or five minors and one or two non-residents, he yet thinks, himself, that they were incompetent. “It occasionally occurred,” he says, “that parties would be at a loss as to whei’e they lived, until prompted, and when prompted they usually adopted the suggestions made.” A great many challenged votes were settled on the personal knowledge of the judges, which “ranked the opinion of the challengers.” He says a list was kept of 48 persons who were challenged and voted, but no list was kept of those rejected. Of those-accepted and voting on the personal knowledge of a judge, one of his republican associates knew more than either of the others, although he vouched for some himself. He saw no intimidation. Brodie made more trouble than any one else, that is by being loud. He does not think there was ten minutes interruption all day, although threats might have been made.
Another witness says he saw no one prevented from voting as he pleased, but says with great naivete that he himself took a ticket away from a colored voter, which had been pasted — when he knew the voter wanted to vote the republican ticket, straight. Being asked on cross-examination how he knew that, he said he just thought ho wanted to vote the republican ticket because he was blade.
There is a considerable number of unimpeached, and as we think, highly creditable witnesses, who testify that they saw no violence or disturbance at the polls, nor anything of an objectionable character; that there was only the usual crowding at elections, and that some of the incidents testified to on the other side, were átthe worst only good natured and boisterous fun.
The vote in the sixth ward stood for plaintiff 809, for defendant 347, an aggregate of 1156. The aggregate vote of the ward had been in previous elections as follows: 701 votes in 1876, 604 votes in 1878, and 745 votes in 1880. This shows an increase of more than 55 per cent, in two years, over the largest vote ever previously cast. In explanation of that it appears, however, that since the last previous election a part of an adjacent township (Big Rock) had been taken off, and added to the second and sixth wards of the city. In order, then, to form some estimate of the real increase of the vote, it is necessary to take the aggregate of the three townships or wards, which altogether embrace the same territory as formerly. This aggregate in 1880, the fullest of previous elections, was 1517. In the election in question it was 2224, an increase of over 46 per cent. Big-Rock itself in- 1880 had polled 488 votes. In 1882, after its contraction, it polls an aggregate of 571, showing still an increase of over 17 per cent. It follows that the increased vote in the sixth ward must have resulted from other causes than the mere transfer of inhabited territory from Big Rock. There is some, though very unsatisfactory, evidence that there had been a large influx of population, which, to some extent, is doubtless true. Whether ’ or not the increased vote from its extent, indicated fraudulent voting, is a matter proper for consideration in connection' with other manifestations of fraud, just as the transactions and words on the Varner platform should be, or the conversations overheard by the witness at the polls, regarding “Pine Bluff” and “Hot Springs.”
The negative evidence of plaintiff’s witnesses, as to what they did not see, although to be taken into consideration, does not, if believed, discredit the positive testimony of others, as to violence, intimidation, and fraudulent voting. The crowd itself may have been noticed under different circumstances, and things coming under the observation of some may not have been seen by others. It must be remem bered, too, that it is not mere noise and disorderly conduct which is relied upon as vitiating the election. There is always much of that, and generally it is harmless, if not in good taste. The acts and gestures are ^effective in proportion to their apparent earnestness, and the power to put them in execution. Thejr need not be loud or demonstrative. Fraudulent voting is carried on generally by the most quiet methods. Taking the evidence altogether, it cannot well be doubted that there was coercive, improper and systematic obstruction of voters of the minority, intimidation and fraudulent introduction of improper votes.
We think his Honor erred in the extent to which he supposed the improper practice should be carried before the election at that poll could be declared invalid. This is partly indicated in the declaration of law which he made, to the effect that the intimidation must be such as to deter men of ordinary firmness. It is further indicated in his treatment of the fraudulent votes, of which he made no accurate estimate for deduction, on the ground that those proven to have been cast, at the highest estimate could not alter the result. This was not really responsive to the true issue. The question on this point was whether or not there had been shown such a combination, design, and plan for the introduction of fraudulent votes, as-to put it in doubt; whether without the prevalence of the plan, the result would have been different, not whether fraudulent .votes were shown sufficient to that end. Of course under such a fraudulent combination it is to be expected that many votes would get in which could not be traced, or might not be observed. It is the fraud that vitiates, not the count that changes, in such cases. There was another issue collateral to that, concerning coercion and interference with the free will of the actual voters, and the result of all combined should have been considered.
We are satisfied from the evidence, that there was, on the part of the great body of colored voters, throughout the count3r, a sentiment, and a determination if possible to enforce it, that it was wrong in any one of their race to vote “the people’s ticket,” upon which the defendant was a candidate.
That, misled by an erroneous sense of political duty, or misguided by designing men (who were not either of the candidates in this contest), they resorted to threats, intimidation and fraudulent introduction of fraudulent colored voters as the proper agencies to accomplish the objects in view, and that those agencies were exercised in all the townships, where the great preponderance of colored voters rendered them practical and most likely to be effectual; and these agencies, where effectual, destroyed the freedom of the election in the sense in which it is guaranteed by the constitution. We do not mean to hold that the most forcible appeals to the judgment, the heart, or the reason of electors ; nor any means of exciting their enthusiasm ; nor appeals to race pride, or race interests; nor even threats of social ostracism, and loss of business support, however ungenerous or reprehensible in ethics, or however widely extended, can be considered as interfering with the freedom of electors in the constitutional sense. Every man’s hand, like that of Douglas, is his own, and he may give or withhold it, with his respect and business patronage, to or from whom he pleases. The intimidation which the constitution forbids, is that which induces a fear of the violation of one’s, rights of person, or property, or tranquility of residence at home.
We think the effect of thuse agencies of fraud and intimidation were such at the sixth ward election as to render it very uncertain whether or not, without them, the plaintiff would have received 118 votes of the majority counted for him there, and if he had not he would not have been elected. The doubt must be resolved against the party here, whose friends perpetrated the wrong, and that upon every sound . principle of law, equity and political ethics. Otherwise all parties at elections will he tempted to resort to like measures.
Having this view, we think his Honor, the circuit judge, properly excluded the- townships of Eastman and Eagle. We think he was mistaken in his estimate of the effect of .the same improper influences in the sixth ward, and that he should have excluded that also, and that he might have done so, but for the view which he expressed, that it was necessary that the intimidation should have been of a character to affect men of firmness. The evidence, indeed, seems that firm and undaunted men could vote as they pleased, by the exercise of firmness and persistency, whilst many more timid or adverse to strife, were deterred. The vote of the principal body of the county, being still retained, the election would not, by the exclusion of the sixth ward, be avoided in the whole county; but Patton would have appeared still entitled to hold the office for which he was, at first, certainly, improperly commissioned — or rather on false grounds.
It is questionable whether the courts, under a delicate desire to conform to the full emancipation and enfranchisement of the former slaves, have acted wisely in ignoring all differences and distinction of race whatever. The actual facts are too subborn. The colored people are a class of electors new to the privileges of free and equal citizenship, and untutored in their exercise. This entire freedom and political .equality is now theirs forever, and must .be sacredly protected. Their former condition requires of us patience, kindness, and, as far as consists with safety, toleration of their error's and mistakes. But the peace of society, and the very existence of our government, demands all classes speedily to learn that freedom is not unbridled license ; and that their own liberties are only safe so long as they, as a body, respect the equal liberty of all others of their own race or any other. That they may vote, each as he pleases, for any man of any party or color, and no power in the government has the right to say him nay or punish him unlawfully. But he must accord the same personal privilege to every one of his own race. The courts should not only be stern and inflexible in protecting them as the weaker, and, as yet, less educated class of electors, against invasion of their rights by the whites, but should be equally firm in repressing all efforts amongst them to coerce the political conduct of each other, or to seek the success of what they suppose to be race interests by illegal voting, or repeating, or unlawful measures for enforcing solidity.
When the time comes when no unqualified voter dare •approach the polls, and when every qualified voter may do so peaceably, quietly and without further question or obstruction than may be necessary to show his qualification, without fear of or responsibility to any other voter or body of voters, white or black, the object of the constitution, and the highest desire of every true patriot will be fulfilled. They never will be if this election is allowed to stand as a successful precedent. These questions now come before us for the first time, and have afforded no little anxiety. But we have resolved to face them thoroughly and frankly, and lay down in limine the principles by which the conduct of elections must be guided,
We think his Honor, the circuit judge, erred in excluding the evidence of conversations at Varner — in declaring the law to be that the intimidation to be fraudulent must be such as would affect men of ordinary firmness; in finding that the fraud and intimidation at the polls of the sixth ward was not sufficient to render the result uncertain; and in declaring the appellee, Coats, elected.
Reverse the judgment and remand the cause for a new trial. | [
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Smith, J.
The city filed this bill to enjoin the lessee of •the penitentiary from working the convicts upon its streets. It was alleged that such employment of them was in violation of law and also in violation of an ordinance of the plaintiff, declaring the same to be a public nuisance ; and that it was calculated to produce riots, to endanger the lives ■of the inhabitants and to disturb the peace and good order of the city. The chancellor overruled a demurrer to the bill, and the defendant lefusing to answer, a perpetual •injunction was awarded.
Sec, 4,438 of Gantt’s Digest provides that: “The •convicts now or hereafter confined in said penitentiary shall not be worked within the corporate limits of the city of Little Rock, except on public improvements, and buildings •and grounds owned by the State, nor elsewhere without the walls of said penitentiary, unless under good and sufficient guard to protect the escape of the same, nor longer than ten hours each working day.”
The chancellor construed this statute to mean that the convicts could be worked within the corporate limits of the city of Little Rock, only upon the grounds, buildings and improvements which were the property of the State, but •elsewhere in the State without any restrictions, save as to proper guards to prevent their escape.
Passing over the question whether the legislature could constitutionally make such a distinction between the capital and the other cities and towns of the State, our conclusion ■is that the term “public improvements” includes all public works belonging to or prosecuted by the State, the county •or the city.
The ordinance forbidding the working of convicts in the eity, and declaring the same a nuisance, was wholly ineffectual for any purpose. The city council has “ power to prevent injury or annoyance within the limits of the ration from anything dangerous, offensive or unhealthy, and to cause nuisances to be abated.” It is also invested with power to make and publish, from time to time, . by-laws or ordinances not inconsistent with the laws of the State, for carrying into effect or discharging their powers and duties. ” Act of March 9, 1875, secs. 12 and 22.
But this does not authorize the council to condemn any act or thing as a nuisance, which, in its nature, situation or use does not come within the legal notion of a nuisance.. Dillon on Mun. Gorp., 3d JEd., sec. 374, and cases cited..
In Yates v. Milwaukee, 10 Wall., 497, Mr. Justice; Miller uses the following language on this subject: “The mere declaration by the city council that a certain structure was an encroachment or obstruction did not make it so,, nor could such declaration make it a nuisance unless it in fact had that character. It is a doctrine not to be tolerated in this country that a municipal corporation without any general laws either of the city or of the State, within which a given structure can be shown to be a nuisance, can, by the mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property in the city at the uncontrollable will of the-temporary local authorities.”
Now, nuisance means literally annoyance — anything that, works hurt or injury. But the working of its streets by convicts or any other class of people, who can be procured for the purpose, produces no damage or inconvenience to the city, or to its inhabitants, or to any one else. Oil the contrary, the fair presumption is that the ' condition of the streets will be ameliorated by such work without injury to> anybody.
It may also be doubted whether the plaintiff has- shown in itself any such interest in the subject matter of this suit-as to entitle it to invoke the jurisdiction of the chancellor. Considering the act complained of ag a violation of the statute, it is not the province of a court of equity to interfere for the prevention of an act merely because it is illegal. High on Injunctions, sec. 23.
Again : Considering the scope and purpose of the bill to be the abatement of a public nuisance, such a bill cannot be maintained unless it shows that the plaintiff has sustained, and is still sustaining, individual damage. Miss, and Mo. H. H. Go.,v. Ward, 2 Black, 485.
The present bill alleges no special damages, but proceeds on the idea that the presence of the convicts in the streets might create a disturbance of the peace or excite mobs. But the nuisance, to give jurisdiction for an injunction, must-actually exist or be imminent.” “Amere threat or an act,, which may, upon some contingency or at some remote time,, prove a nuisance, will not warrant the interference of the court. And the injury must not be contingent merely;, and apprehension on the part of the complainant of a possible- or speculative harm will not be enough.” Bis. Bq.„ sec.' 440.
In truth this suit is based upon the sentimental notion that the laborers, not of the State at large, but of the city of Little Rock, are to be protected from competition with convict labor. It is preposterous to attribute to the legislature any such intention. It is the settled policy of the State that those who, for crimes committed, are sentenced to the penitentiary, shall be confined at hard labor. They are not to be maintained in idleness, because that would entail a heavy burdeu upon the tax-payers, without any corresponding benefit to the criminals themselves. And it was certainly contemplated that their labor should be productive-—not .a mere rolling of stories up hill which constantly roll back again.
Now, whether they be put to manufacturing bricks or-shoes, or to building railroads, or mending highways, or to-performing farm work, they will be doing work in which honest meñ are also engaged. But this is unavoidable; for no useful occupation can be found for them in which honest men are not employed. Their labor does not degrade the ■occupation. And it is no greater hardship upon the workingmen of Little Bock that they should be exposed to competition with such labor than it is to the workingmen of other portions of the State ; or, if it is, it is one which the law is powerless to relieve.
The decree of the chancellor is reversed, and a decree will be entered here, dismissing the bill. | [
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English, C. J.
A. J. Wigley was indicted in the circuit court of Franklin county for an assault and battery, the indictment charging that “the said A, J. Wigley, on the fifteenth day of May, A. D., 1882, in the county of Franklin, then and there did unlawfully assault one Charlotte Ellison then and there being, and her, the said Char lotte Ellison, he, the said A. J. Wigley, did then and there unlawfully strike and beat, against the peace and dignity of the state of Arkansas.”
Defendant was tried on plea of not guilty, the jury found him guilty and assessed a fine of one hundred dollars against him, and judgment was entered on the verdict.
He moved in arrest of judgment on the ground that the indictment did not state facts sufficient to constitute a public offense, etc., and the court overruled the motion.
He filed a motion for a new trial on the grounds that the verdict was contrary to law and evidence, and against the weight of evidence. The court overruled the motion, and defendant appealed without taking any bill of exceptions.
The indictment charges an assault and battery, and is-substantially in good form.
Whether the evidence warranted the verdict, we have no means of judging, as appellant did not bring it on the record by bill of exceptions. In the absence of a showing* to the contrary, the presumption is that the verdict was-right.
Affirmed. | [
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OPINION.
The questions presented on this appeal are, whether the license ordinance of the appellant city was valid, and if valid, whether on the facts of the case, appellee was punishable for its violation.
Ordinances of cities must not only conform to their charters, but they must be consistent with the general laws -of the State.
The State first adopted the policy of prohibiting the county courts from granting dramshop licenses, except •upon the petition of a majority of the voters of the town•ship in which it was proposed to establish a dramshop. Gantt’s Diy., sec. 571, etc.
By act of April 30, 1874, the State adopted the policy of •submitting the question of granting liquor licenses by the county court (then board of supervisors) to the electors of townships, wards of cities and incorporated towns. Acts 1874, p. 48, Whittington ex parte ; 34 Ark., 395.
By the acts of March 8, 1879, (Acts of 1879-, p. 33) this and the former act were repealed, and it was enacted in substance that at each general election there should be •submitted to the electors of each township and ward of a •city in this State the question whether license should be granted by the county court to any person to keep a dram-shop or drinking saloon in such township or ward. And if at such election a majority or equal number of votes of any township or ward should be cast against license, then it. should not be lawful for the county court to grant license to-any person to keep a drinking saloon or dramshop in suck township or ward. Secs. 7, 8, 9.
In Erb. v. The State, 35 Ark., 638, it was decided that sections 7, 8 and 9 of this act plainly required a majority vote of the electors of any township or ward in favor of keeping a dramshop or drinking saloon therein before the county court could lawfully grant such license; that there was no power in the court to issue such license except upon such favorable vote.
The act of March 19, 1881, (Mcis of 1881, p. 132> made a material amendment of the act of eighth of March,. 1879. It provides in substance that at each general election' there shall be submitted to the electors of each county the question whether license shall or shall not be granted by the-county court of such county, for the sale of vinous, ardent, malt or fermented liquors, etc., within such county for two years, etc. See. 1.
And if at such election the majority of the votes cast in any county upon the question be not “for license,” then it shall be unlawful for the county court of such county to grant license for the purpose mentioned in the preceding-section, at any place within such county, until after the-next general election.
But if a majority of the votes cast in any county upon the-question be “/or license,” then it shall be lawful forthe county court of such county to grant license for the purposes aforesaid, to persons of good moral character, over the age of twenty-one years,within any township, town or ward of a city in such county, where the majority of the votes cast upon the question was “for license,” but in no other. Sec. 2.
jy appears that at the general election in -September, 1882, a majority of, votes in Benton county upon the ques-of license was “/or license.” Hence it was lawful for the county court of that county to grant license to any person of good moral character, etc., within any township, town or ward of a city in said county, where the majority of the votes cast upon the question was “for license,” but in no other.
But at that general election the electors of the appellant city did not vote at all on the question of license at either of the three wards of the city.; they went to Hico, out of the city limits, and voted with the electors of that township. There being no vote in either ward of the city “for license,” it was not lawful for the county court to grant a license to any person to keep a dramshop or drinking saloon within the limits of the city, until after the next general election, and a majority vote for license as is held in Prb v.. State, sup.
Such was the general law of the State regulating the granting of dramshop license by the county court at the time when the alleged offense was committed by appellee against the city ordinance in question.
We turn now to look at the law prescribed for the government of cities on the subject of dramshops or tippling houses.
By section 12 of the act of March 9, 1875, for the incorporation, organization and government of municipal corpo-2rations (Acts 18,74-5, p. 8) a city council has power license, regulate, tax or suppress, etc., tippling and dramshops : Provided the city or town council shall not grant a license to any tippling house, dramshop or saloon, or permit such houses, shops or saloons to carry on such business in any ward of the city, or incorporated town, when at the previous election a majority of the votes cast were against license in such ward of a city or incorporated town.”
By section 22 of the act, municipal corporations are empowered to make and publish from time to time by-laws or ordinances not inconsistent with the laws of the State, to carry into effect the powers conferred by the act.
The ordinance of the appellant city in question is in conformity with section 12 of the act, and is not inconsistent with any law of the State. ■
The act does not limit the price which a city council may ■fix for a license to keep a tippling house or dramshop •within the limits of the city, or'prescribe any particular time iii which ordinances on that subject may be passed. 'The only restriction upon a city council is that it shall not grant license to keep a tippling house or dramshop in any ward of the city wheré at the previous election a majority of the votes cast was against license. The ordinance in .•question, in its terms, conforms to this limitation upon the powers of the city council.
But plainly, under the act and under the ordinance, there must not only be no majority vote against license at the previous election, but there must be a majority vote for license to make it lawful for the mayor to grant license, as held in Erb v. State, in construing the act of March 8, 1879, where similar language was used, and this construc•tion makes the organic law of cities and the ordinance in •question conform to the general policy of the State on the >subject of dramshop licenses, etc.
At the general election of 1882 there were no votes cast •in the wards of the appellant city on the question of license, -hence there was no majority against, and certainly none for license. The mayor of the city was therefore not •authorized at the time of the alleged offense to grant to any person a license to keep a tippling house or dramshop within the limits of the city.
Appellee thought proper to keep a dramshop within the the limits of the city, r.egardless of the ordinance, and he -subjected himself to the penalty prescribed thereby for •such offense.
It may be said that it is a hard measure to punish a man for keeping a dramshop within the limits of a city without License, when he can get none. But such was the plea in Drb’s case, and it was held unavailing.
The judgment of the court below must be reversed, and the cause remanded for a new trial. | [
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ROBIN F. WYNNE, Judge.
| tLarry Eugene Walden appeals from his conviction on a charge of aggravated robbery. This case was originally submitted to this court in no-merit form. Counsel’s motion to withdraw was denied and rebriefing was ordered. Walden v. State, 2012 Ark. App. 38, 2012 WL 76163. The case has now been submitted with a merit brief. In his brief, appellant alleges error regarding the trial court’s denial of his motion to suppress his custodial statement, the trial court’s instructions to the jury during both the guilt and sentencing phases, the trial court’s denial of his motions for a directed verdict, and the trial court’s denial of his motion for a new trial. We affirm the judgment of the trial court.
Appellant was charged with one count of aggravated robbery. In the information, the State sought to have appellant sentenced as a habitual criminal. The State filed a motion in limine on October 27, 2010, in which it sought to exclude certain testimony regarding appellant’s prior convictions for bank robberies he committed in Oklahoma and the sentences |ahe received. On December 20, 2010, appellant filed a motion to suppress statements he made while in custody and evidence seized during a search of his hotel room following his arrest. Appellant also filed a motion to strike Count II of the information, wherein the State sought to have him sentenced as a habitual offender.
At the hearing on appellant’s motion to suppress, appellant testified that he was arrested three days after the robbery in question was committed by as many as ten officers in Dardanelle at a motel where he was staying. When appellant was arrested, he was fifty-seven years old and a high-school graduate. Appellant claimed that when he was handcuffed behind his back, he experienced a lot of pain. Appellant said that when he brought this to the officers’ attention, he was told that they were waiting on search warrants and if he consented to a search of his hotel room and his truck; it would save time. Appellant testified that he considered that statement to be an inducement to give consent. Appellant later testified that he initially indicated to the officers that he would give consent if they would handcuff him in front. Appellant remembered signing the consent.
According to appellant, he is an alcoholic, and at the time he was arrested he had been drinking heavily, although he later stated that he had not consumed any alcohol for five to six hours prior to his arrest. Appellant stated that in the three days between the robbery and his arrest, he had consumed three large bottles of vodka. He stated that the bottles were in his room, but they were not among the items seized by police during the search despite his request that they be taken. Appellant was driven back to Fort Smith. He stated that an FBI |sagent was driving and Detective Ron Seamardo was riding next to him in the backseat. During the trip, Det. Seamardo took a statement from appellant, during which appellant admitted to robbing the bank. Appellant claimed that he told Det. Seamardo three times that he wanted an attorney before his statement was taken. Appellant stated that he also told the detective that he was intoxicated. Appellant testified that he did not remember signing a Miranda form, although that form and the consent form reflect that they were signed within two minutes of each other.
Captain John Foster with the Yell County Sheriffs Department testified that he assisted in the arrest of appellant. Captain Foster did not remember appellant stating that the handcuffs were causing him pain. Captain Foster denied that any promises were made to get appellant to sign the consent. He testified that appellant appeared calm and lucid and that he did not appear to be intoxicated. Captain Foster did not remember appellant saying anything about vodka bottles, nor did he see any vodka bottles, although he did not search the room.
Detective Seamardo testified that appellant gave verbal consent to search his hotel room and signed both the consent and the Miranda form after he read them to appellant. Detective Seamardo stated that appellant never complained about discomfort in his shoulder, nor were his handcuffs adjusted in order to obtain consent. Appellant did not appear to be intoxicated to Det. Seamardo, although he did smell a slight odor of intoxicants on appellant. Detective Seamardo stated that appellant never requested an attorney in his presence. He pdenied that there were any FBI personnel at the scene of the arrest and stated that, during the trip from Dar-danelle to Fort Smith, the vehicle was driven by a Major Boyd. Detective Sca-mardo seized $859 in cash from the robbery from appellant’s wallet.
Major Chris Boyd with the Fort Smith Police Department testified that he drove appellant and Det. Scamardo to Fort Smith. Major Boyd denied ever hearing appellant ask for an attorney. Major Boyd also denied that he or anyone else with him identified themselves as an FBI agent or showed FBI credentials.
The trial court found that appellant freely and voluntarily gave both his statement and the consent to search. Appellant’s motion to suppress was denied.
At trial, Elsie Yarborough testified that she was working as a teller at a First National Bank in Fort Smith on June 12, 2009, when a man she later identified as appellant came into the bank. Appellant handed Ms. Yarborough a bag with a note taped to it that read, “This is a robbery. I have a gun. Give me all your money, no red dye pack.” Ms. Yarborough stated that at first she thought it was a joke but realized appellant was serious when she looked up and he was staring at her with a “menacing scowl” on his face. She took the money out of her drawer and put it in the bag. Ms. Yarborough activated a silent alarm as soon as appellant left the bank. Ms. Yarborough never saw a gun but gave appellant the money due to the implied threat on her life.
Detective Scamardo testified that Ms. Yarborough picked appellant out of a photo lineup. He testified, as he had in the earlier hearing, that appellant signed a consent to search Rand a Miranda, form after those documents were read to him. A DVD recording of the statement appellant gave to Detective Scamardo was played for the jury.
After the State rested, appellant moved for a directed verdict, which was denied by the trial court. In appellant’s case-in-chief, Detective Tammy DeMeir with the Fort Smith Police Department testified that she arrived at the bank about twenty minutes after the robbery. Detective De-Meir took a recorded statement from Ms. Yarborough. A DVD recording of Ms. Yarborough’s statement was played for the jury. After he rested, appellant renewed his directed-verdict motion, which the court denied again.
Prior to the instruction of the jury by the trial court, appellant requested an instruction on the lesser-included offense of robbery. The trial court declined to give the instruction on robbery. The jury found appellant guilty of aggravated robbery. After the verdict was reached, the trial court entered into evidence a certified copy of a judgment from the Eastern District of Oklahoma reflecting that appellant had been convicted on three prior counts of robbery. Appellant proffered a sentencing instruction in which he requested that the jury be informed of the nature of his three prior felony convictions and the sentences he received. The trial court refused the instruction. The jury sentenced appellant to 720 months’ imprisonment as a habitual offender. That sentence was put into effect via a judgment and commitment order entered by the trial court on January 14, 2011. This appeal followed.
Although it is his fourth point on appeal, due to double-jeopardy concerns, this court must first address appellant’s argument that the trial court erred by denying his motions for directed, verdict. Tucker v. State, 2011 Ark. 144, 381 S.W.3d 1. A motion for directed verdict [fiis treated as a challenge to the sufficiency of the evidence. Taylor v. State, 2011 Ark. 10, 370 S.W.3d 503. In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character that it will, with reasonable certainty, .compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
Appellant was convicted of aggravated robbery. A person commits aggravated robbery if he or she commits robbery as defined in Arkansas Code Annotated section 5-12-102, and the person is (1) armed with a deadly weapon; (2) represents by word or conduct that he or she is armed with a deadly weapon; or (3) inflicts or attempts to inflict death or serious physical injury upon another person. Ark.Code Ann. § 5-12-108 (Repl.2006). Appellant argues that there was not sufficient evidence to sustain a conviction for aggravated robbery because the State failed to prove that he employed physical force.
Appellant specifically argues that the State failed to prove that he represented by word or conduct that he was armed with a deadly weapon. Appellant states that this court should reverse his conviction based upon our supreme court’s holdings in Clemmons v. State, 303 Ark. 354, 796 S.W.2d 583 (1990), and Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001). In Clemmons, one member of a group of men that included the defendant pretended to be armed with a gun by sticking his finger in his jacket and took the victim’s purse. Our supreme court held that where a defendant verbally represents that he is armed with a deadly weapon, this is sufficient to convict for aggravated robbery regardless of whether in fact he did have such |7a weapon. The court stated that where no verbal representation is made and only conduct is in evidence, the focus is on what the victim perceived concerning a deadly weapon. Clemmons, 303 Ark. at 357, 796 S.W.2d at 585. In Brown, our supreme court held that it was reversible error not to give an instruction on the lesser-included offense of robbery in a case where the defendant robbed a convenience store while wielding a gun that the victim testified looked plastic. 347 Ark. at 49, 60 S.W.3d at 426. In that case, the court focused on the victim’s perception because appellant made no verbal representation of being armed.
While the Clemmons court phrased its holding in the context of a verbal representation, the statute at issue is broader than appellant contends in his argument. In Feuget v. State, 2012 Ark. App. 182, 394 S.W.3d 310, this court held that a charge of aggravated robbery was supported by substantial evidence, although the victim never saw a gun and the appellant made no verbal threat to the victim, because it is not required under the statute that the victim see the weapon or that the threat be communicated orally. In so holding, this court stated that “there is no requirement that the threat of physical harm be made directly or indirectly, only that physical force be immediately threatened, however that threat may be communicated.” 2012 Ark. App. 182, at 4-5, 394 S.W.3d 310, 312. In this case, there was a verbal representation in the note. We hold that the verdict is supported by substantial evidence.
Appellant argues that the trial court erred by denying his motion to suppress. Appellant specifically argues that his statement to police was not voluntary because it was a product of coercion due to pain from his handcuffs and intoxication. In ruling on the | ^voluntariness of a confession, we review the trial court’s findings of fact for clear error, then make an independent determination based on the totality of the circumstances in deciding the ultimate legal question of whether the confession was voluntary. Thompson v. State, 2011 Ark. App. 605, 2011 WL 4824471. When an appellant claims that his confession was rendered involuntary because of his drug or alcohol consumption, the level of his comprehension is a factual matter to be resolved by the trial court. The test of voluntariness of one who claims intoxi cation at the time of waiving his rights and making a statement is whether the individual was of sufficient mental capacity to know what he was saying — capable of realizing the meaning of his statement — and that he was not suffering from any hallucinations or delusions. Id.
Appellant testified that he was in pain from the handcuffs. However, none of the officers testified that appellant indicated that the cuffs were causing pain. Appellant also gave two different versions of how his cuffs were moved from behind him to in front of him. At first, he stated that the police offered to handcuff him in front if he would consent to a search; later, he testified that he offered to consent to a search if the police would cuff his hands in front of him. Appellant also claimed that he had consumed “three gallons” of vodka in the three days prior to his arrest. Appellant later testified that, at the time he was arrested, he had not consumed alcohol in five to six hours. None of the officers indicated that appellant appeared to be intoxicated, although Detective Scamardo did detect a faint odor of intoxicants. Appellant even admitted in his testimony that he did not sound or behave intoxicated during his statement. The only evidence to support appellant’s contentions of being intoxicated and in pain come from appellant’s testimony at the suppression hearing. |9The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding a defendant’s in-custody confession is for the trial judge to determine, and we defer to the superior position of the trial judge in matters of credibility. Rankin v. State, 338 Ark. 723, 729, 1 S.W.3d 14, 17 (1999). The trial court is not required to believe the testimony of any witness, especially the self-interested testimony of the defendant. Jones v. State, 344 Ark. 682, 688, 42 S.W.3d 536, 541 (2001). The trial court weighed the evidence and agreed with the State’s witnesses. Appellant also argues, for the first time on appeal, that the State failed to present all of the officers who were at the scene of the arrest at the suppression hearing, although he fails to identify any necessary officer who did not testify. Because this argument was not raised below, we decline to consider it on appeal. Lytle v. State, 2012 Ark. App. 246, 2012 WL 1194147. We hold that the trial court’s denial of appellant’s motion to suppress is not clearly erroneous.
Appellant next argues that the trial court erred by refusing to instruct the jury on the lesser-included offense of robbery. Appellant requested an instruction on robbery as a lesser-included offense of aggravated robbery, but the record does not indicate that appellant proffered his requested instruction at trial. An appellant who seeks reversal based on the failure to instruct the jury as requested by the appellant must present a record showing a proffer of the requested instruction. Watson v. State, 329 Ark. 511, 512, 951 S.W.2d 304, 305 (1997). Appellant’s failure to do so precludes us from considering this argument on appeal.
Appellant’s next point on appeal is that the trial court erred in refusing to give the jury his proffered instruction wherein the jury would have been advised of the sentences he had | ^received for his three prior bank-robbery convictions in federal court. Appellant argues that the trial court failed to read Arkansas Code Annotated sections 5-4-502 and 16-97-103 together and that this failure constitutes reversible error. When an extended term of imprisonment is sought pursuant to Arkansas Code Annotated section 5-4-501 for habitual-offender status and a defendant is found guilty, the jury may be advised as to the nature of a prior felony conviction and the date and place of a prior felony conviction. Ark.Code Ann. § 5-4-502(3)(B) (Repl.2006). Evidence relevant to sentencing by either the court or a jury may include prior convictions of the defendant, both felony and misdemeanor. The jury may be advised as to the nature of the previous convictions, the date and place thereof, the sentence received, and the date of release from confinement or supervision from all prior offenses. Ark.Code Ann. § 16-97-103(2) (Repl.2006).
At trial, the State argued that section 5-4-502 controlled, while appellant argued that the two statutes should be read together and that the jury should be advised of the sentences received by appellant for his prior convictions. We see no merit to appellant’s argument that the trial court failed to read the two statutes together. The relevant portions of both statutes state that a jury may be advised of certain facts prior to sentencing. Specifically, section 16-97-103(2) gives the trial court discretion regarding whether or not to inform the jury of the prior sentences received by a defendant. We hold that it was not error for the trial court to refuse the proffered instruction.
The last remaining point on appeal is appellant’s contention that the trial court erred by denying his motion for a new trial. Appellant argues in his brief, as he did at trial, that the |1T sixty-year sentence imposed by the jury showed that the jurors were moved by passion. Appellant never filed a written motion for a new trial. He made an oral motion for a new trial prior to the entry of the judgment and commitment order. A posttrial motion or application filed before the entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. Ark. R.Crim. P. 33.3(b) (2011). The State argues in its brief that a motion for new trial entered prior to the entry of the judgment and commitment order is not effective, citing State v. Richardson, 2009 Ark. 206, 306 S.W.3d 11. In that case, our supreme court héld that the motion for new trial made before the entry of the judgment and commitment order was not effective because no judgment and commitment order had ever been entered. The holding of that case does not apply here because a judgment and commitment order was entered by the trial court.
The State also argues that appellant’s argument is not preserved for review because appellant only made an oral motion for new trial. The Richardson court stated the following in a footnote:
Richardson never ‘filed’ a motion for new trial. Rule 33.3 appears to contemplate a written motion for posttrial relief, stating that a person “convicted of either a felony or misdemeanor may file a motion for new trial or any other application for relief ... A copy of any such motion shall be served on the representative of the prosecuting party.”
2009 Ark. 206, at 4 n. 3, 306 S.W.3d at 13 n. 3. Though the footnote is dicta, it raises the question of whether an oral motion for new trial is sufficient under Rule 33.3. Although the rule does use the term “filed” and does include a requirement that a copy be submitted to the prosecution, the rule also contemplates a motion made after the judgment is entered, not in court. After the judgment is entered, any motion to the court would have to be filed and a 112copy of the motion would have to be served on a member of the prosecuting party in order for the prosecution to be made aware that the motion was filed and to have an opportunity to respond. Here, the motion was made in open court, the State was aware that the motion had been made, and the State was given an opportunity to respond to the motion. We hold that the issue is preserved for review and will address the merits.
The matter of granting or denying a new trial lies within the sound judicial discretion of the trial court, whose action will be reversed only upon a clear showing of abuse of that discretion or manifest prejudice to the defendant. Stewart v. State, 2011 Ark. App. 658, at 5, 386 S.W.3d 583, 586. Appellant’s argument is that the victim-impact statement given by Ms. Yarborough inflamed the passions of the jury. At the time appellant was sentenced, the sentencing range for a habitual offender convicted of a Class Y felony was a term of not less than ten years nor more than sixty years, or life. Ark.Code Ann. § 5^f-501(a)(2)(A) (Supp. 2009). Appellant received sixty years’ imprisonment. The maximum sentence he could have received was life in prison. A defendant who has received a sentence within the statutory range short of the maximum sentence cannot show prejudice from the sentence. Tate v. State, 367 Ark. 576, 583, 242 S.W.3d 254, 260-61 (2006).
Affirmed.
VAUGHT, C.J., and GLADWIN, J., agree.
. The record indicates that Mr. Seamardo held different ranks during the pendency of this case. We will refer to him throughout as Detective Seamardo.
. In 2011, the legislature amended section 5-4 — 501(a)(2)(A) to impose a sentencing range of not less than ten years nor more than life. | [
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Per curiam.
Appellee moves the dismissal of the appeal herein because filed one day too late. The facts are the six months provided by statute for lodging appeals in this court expired on Sunday, August 26, 1934, and this appeal was lodged here on Monday following. Under authority of Bank of El Paso v. Neal, 181 Ark. 788, 27 S. W. (2d) 1024, this appeal was lodged here one day too late and must be dismissed.
The view here expressed does not conflict with the opinion of this court in McNutt v. State, 163 Ark. 122, 258 S. W. 1. In the case last cited we were dealing with a statute which required an act to be done within a certain number of days, whereas the statute here under consideration requires the act to be done within a certain number of months, and this marks the difference in construction and interpretation as determined by practically all, if not all, the courts.
Let the appeal be dismissed. | [
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Johnson, C. J.
Bringing into question the correctness of the Columbia County Chancery Court’s findings and decree sustaining a demurrer interposed by appellees to appellants’ complaint, this appeal is prosecuted. In effect, the complaint alleged: That appellants are citizens, taxpayers and property owners within the boundaries of Waterworks Improvement District 1, situated within the corporate limits of Magnolia, Arkansas; that in the year 1923 appellee Waterworks Improvement Dist. 1 of Magnolia was duly organized and established, and that J. O. Hutchinson, H. P. Carrington and D. D. Good are now and have ever been since the organization of said district the duly constituted board of commissioners thereof; that on May 12, 1924, the board of commissioners of said Waterworks District 1 of Magnolia made and entered into an invalid contract with the 'Consumers’ Ice & Light Company, a domestic corporation, by the terms of which contract the Waterworks Improvement District 1 of Magnolia surrendered to the Consumers ’ Ice & Light Company the right and privilege to furnish consumers located in said district water and make and collect charges therefor, and in consideration of which the Consumers’ Ice & Light Company agreed to pay 10 per cent, of its earnings therefrom, upon certain conditions and contingencies then and there agreed upon; that the contract between the Waterworks Improvement District 1 and the Consumers ’ Ice & Light Company was invalid and void because all members of the board of commissioners of said Waterworks District 1 were at the time of the execution of said contract, and are now, stockholders in the Consumers’ Ice. & Light Company; that said board of commissioners and each member thereof was therefore directly and indirectly interested in said contract. Appellants further alleged that in 1925 the city council of Magnolia was composed of J. W. Colquitt, H. B. Couch, T. P. Lewis, C. J. Gantt, J. B. Lee, E. C. Lyle and T. H. Westbrook, mayor; that on the 20th day of July, 1925, said city council, composed of the members aforesaid, by ordinance, approved and ratified the contract theretofore executed between the board of commissioners of Waterworks Improvement District 1 of Magnolia and the Consumers ’ Ice & Light Company, but that said ratification and approval was invalid and void because at the time of the passage of said ordinance ratifying and approving said contract all members of said city council of Magnolia, save one member, were stockholders in the Consumers ’ Ice & Light Company, and were therefore directly and indirectly interested in said contract; that, after the ratification of said invalid and void contract by said city council of Magnolia, the Consumers’ Ice & Light'Company transferred and assigned to appellee, Arkansas Power & Light Company, all its interest therein, and since said date the Arkansas Power & Light Company has unlawfully charged and collected rentals and charges against the consumers in said Waterworks Improvement District 1 of Magnolia, and converted same to its own use and benefit; that the rentals made and charged by the Arkansas Power & Light Company and the Consumers’ Ice & Light Company during the periods of their respective operations were exorbitant, unreasonable, unlawful and without right or authority; that the board of commissioners of Waterworks Improvement District 1 of Magnolia, although requested so to do, have refused to institute, prosecute or maintain a suit for the collection of said unlawful rentals and charges against appellees, and have refused to endeavor to collect said rentals and charges for the benefit of said Waterworks Improvement District 1 of Magnolia.
It is the established doctrine in this jurisdiction that a demurrer to a complaint admits the truth of its allegations. Greer v. Strozier, 90 Ark. 158, 118 S. W. 400; Adams v. Primmer, 102 Ark. 380, 144 S. W. 522; Keopple & McIntosh v. National Wagonstock Co., 104 Ark. 466, 149 S. W. 75; Hamiter v. State Nat. Bank of Texarkana, 106 Ark. 157, 153 S. W. 94.
It appears therefore, for the purpose of this determination, that the contract between Waterworks Improvement District 1 of Magnolia and the Consumers’ Ice & Light Company was executed and consummated by a board of commissioners acting’ for Waterworks Improvement District 1, who were stockholders at the time in the Consumers ’ Ice & Light Company.
On the question of the validity of the contract, between Waterworks Improvement District 1 and the Consumers’ Ice & Light Company, in its inception, but little need be said. Section 5711, Crawford & Moses’ Digest, provides: “It shall be unlawful for any board of improvement, or any member thereof, in any city or town in this State, to be interested either directly or indirectly in any contract made by the board for or on behalf of any improvement district.”
Therefore, when it is admitted that the members of the board of commissioners of said Waterworks District 1 were stockholders in the Consumers’ Ice & Light Company at the time said contract was executed and consummated, it follows as a matter of law that each of them was directly interested in said contract, which is inhibited by the plain provisions of the statute just quoted. Just how or why a stockholder in a corporation should not be considered as interested in the business and affairs of such corporation is not pointed out in the briefs, and we cannot conceive such being the law. Although a stockholder may own only one share of the capital stock of a corporation, he is directly interested in its affairs. Any other construction of the statute under consideration would have the effect of nullifying it.
Counsel for appellees contend that we decided in Davidson v. Sewer Improvement District, 182 Ark. 741, 32 S. W. (2d) 1062, that a contract with a corporation ivas not inhibited by § 5711 merely because one of the contracting parties was a stockholder in such corporation. This is not the effect of the holding in the Davidson case. Primarily, the Davidson case presented the question of the validity of the assessment of benefits. Davidson contended that the mere fact that the Mcllroy Bank & Trust Company had purchased and owned certain bonds of the improvement district which were obtained by said "bank while J. H. Mcllroy, the president thereof, was on the board of commissioners of the improvement district rendered the assessment of benefits invalid. The court determined that the assessment of benefits was valid, and that whether the Mcllroy bank had contracted unlawfully with the board of commissioners of the improvement district subsequent to the assessment of benefits was not of controlling importance. Moreover, the language quoted from tlie Davidson case appears to be dictum and was not necessary to a decision of the point involved.
It seems to be the rule of universal application that any contract prohibited by a constitutional statute is absolutely void. Ridge v. Miller, 185 Ark. 461, 47 S. W. (2d) 587. See Levison v. Boas, 12 L. R. A. (N. S.) 575, and notes thereunder, page 583. Tallman v. Lewis, 124 Ark. 6, 186 S. W. 296.
Based upon reason and authority, the contract between the Waterworks Improvement District 1 of Magnolia and the Consumers ’ lee & Light Company was and is void because inhibited by § 5711, Crawford & Moses’ Digest. Appellee next contends that, although the contract may have been void in its inception, yet it was impliedly ratified by the city council of Magnolia subsequent to the assignment of the contract by the Consumers’ Ice & Light Company to the Arkansas Power & Light Company. The first answer to this contention is the complaint alleges that the ratification by the city council occurred prior to the assignment of the contract. Since the ratification was prior to the assignment of the contract, the question is presented whether or not this ratification was void under the allegations of the complaint. The complaint alleges that all members, save one, of the city council at the time of the ratification were stockholders in the Consumers’ Ice & Light Company. Section 7520, Crawford & Moses’ Digest, in effect, inhibits any member of the city council from being interested either directly or indirectly in any contract or job or services to be performed for the corporation. The only meaning of this section of the statute is that any contract made by the board of aldermen who are interested either directly or indirectly in the consideration of the contract is prohibited. Viewed from the allegations of the complaint, the ratification by the city council of the contract between the Waterworks District 1 and the Consumers’ Ice & Light Company was inhibited by the section of the statute just quoted.
Moreover, since the contract has been determined to be null and void from its inception because prohibited by a constitutional statute, we know of no authority holding, and none have been cited in briefs, that such contract may be given life by subsequent acts of the parties. If the contract is void from its inception because being prohibited by statute, it cannot be vitalized by subsequent acts of the parties thereto or thereunder. The rule is thus stated in Page on the Law of Contracts, § 1038, “Ratification in its correct sense is impossible equally of an illegal and of a void contract.” 13 C. J. 506, states the rule as follows: “A contract malum in se or against public policy cannot be made valid by ratification.” In line with the authorities just quoted, we stated the rule in the early case of Tucker v. West, 29 Ark. 386, quoting from the fifth headnote: “Where the consideration of a contract is either wicked in itself, or prohibited by law, is void and incapable of ratification.”
Lastly, it is contended on behalf of appellee that this ease should be affirmed because the complaint shows upon its face that appellants cannot recover any moneys that the Arkansas Power & Light Company has collected from the water consumers for the services rendered by it.
We cannot agree with this contention. Since we have determined that the contract was void in its inception, the ConsumersIce & Light Company acquired no rights thereunder which may be enforced either in law or in equity. The position of the Arkansas Power & Light Company rises no higher than that of its assignor. The general rule is that, where a contract is expressly prohibited by law, and the statute in terms declares the contract to be null and void, no recovery can be had under it, and a taxpayer has a right to maintain an action to recover back money when its officers neglect or fail to perform their duty in that respect. Capron v. Hitchcock, 98 Cal. 427; Winchester v. Frazier, (Ky.) 43 S. W. 453; Milford v. Milford Water Co., 124 Pa. St. 610.
The status, however, of appellees does not come strictly within the prohibition of the rule just stated. The prohibitory statute here involved does not, in terms, declare the contract to be “null and void.” The rule seems to be that, in the absence of the prohibitory words “null and void” and where the contract has been performed by the parties in good faith, compensation may be retained measured by the reasonable value thereof. Such recovery, however, is not because of the contract, but is grounded squarely upon the proposition that valuable services having been rendered which have been accepted by the parties, it would be inequitable and unjust to permit one party to substantially gain under the contract to the great and irreparable damage of the other. Smith v. Dandridge, 98 Ark. 38, 135 S. W. 800; Spearman v. Texarkana, 58 Ark. 348, 24 S. W. 883; Frick v. Berkley, 61 Ark. 397, 33 S. W. 527; Ark. State Highway Commission v. Keaton, 187 Ark. 306, 59 S. W. (2d) 481.
For the errors indicated, the case will be reversed, and the cause remanded with directions to overrule appellees’ demurrer and proceed not inconsistent with this opinion.
McIIaney, J., dissents. | [
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Smith, J.
This suit was brought to recover on a policy of life insurance, and was heard in the court below on an agreed statement of facts reading as follows:
‘ ‘ 1. It is agreed that the life insurance policy numbered 63572, in the sum of $1,000 was issued and delivered by the Life & Casualty Insurance Company of Tennessee to Harmon Goodwin on June 21, 1926; that semi-annual premiums were due thereon on June 15 and December 15 of each year; that all premiums were paid up to and including the 15th day of December, 1932; that on said date the policy lapsed for the nonpayment of the premium then due; that at the time of the lapse of the policy there was a loan outstanding against the same in the sum of $82, and it had a reserve or loan value of $90, leaving a net reserve of $8 and an unearned interest credit thereon of $2.46, making an aggregate reserve value under the policy at the time of its lapse, December 15, 1932, and on the date of the death of the. insured, August 28, 1933, of $10.46; that all premium notices were sent out and received by plaintiff in due time;
“1 y2. That upon the lapse for failure to pay said premiums the policy was then immediately commuted to a paid-up policy as provided under its terms.
£<2. It is agreed that the insured received notice from the defendant company by letter of March 27, 1933, that his policy had lapsed, and that under the terms thereof he was entitled to paid-up insurance, in the sum of $32.43, but said letter did not notify insured the reserve value of his policy; that the insured died on August 28, 1933; that prior to his death he could read and write, and had the policy in his possession at all times after its delivery, and that he never exercised or made any effort to exercise any of the. options provided under the ‘non-forfeiture provisions’ thereof.
“3. It is further stipulated and agreed that the amount of paid-up insurance the policy reserve would purchase at the time of forfeiture and death was and is the sum of $32.43, and that this sum has heretofore, by the defendant, been tendered to the plaintiff and the tender refused, and the amount paid in lawful currency into the registrar of the court.
“4. It is further agreed that, provided the ‘non-forfeiture provisions’ or ‘automatic provisions’ of the policy should be held of no effect, that the amount of the reserve was sufficient to extend the benefits provided in the policy under the extended insurance clause thereof beyond the date of the death of the insured.
“5. It is contended by the plaintiff that the. amount of extended insurance is the face of the policy less any indebtedness outstanding, which is admitted to have been the sum of $82; it is contended by the defendant that the amount of extended insurance is reduced under the terms of this policy in the same pro rata as the outstanding indebtedness bears to the reserve value. It is admitted that, if the provisions of the policy, including the last two paragraphs under the heading ‘non-forfeiture provisions’ are held to sustain the contention of the defendant, then the amount of extended insurance which the reserve of the policy would have purchased, provided the automatic provisions for commuting the insurance to a non-forfeitable paid-up policy should be held of no effect, would be the sum of $116.
“6. It is further agreed and stipulated that the reserve value of the policy was not sufficient, even if so applied, to have paid the premiums necessary to keep in force the policy, with all benefits therein provided, up to the date of the death of the insured.
“7. All questions of fact are herein agreed upon, and there are two issues presented to the court:
“First: Was this policy irrevocably commuted upon lapse for failure to pay premium, and upon the passing of the ninety days provided therein, to a paid-up non-forfeitable policy in the admitted sum of $32.43.
“Second: If the ‘automatic non-forfeitable provisions’ contained in said policy should be, by the court, held of no effect, then is the amount of the ‘extended’ in - • surance reduced in the same ratio as the admitted indebtedness of $82 bears to the reserve of $90, or is the full face of the policy extended less any indebtedness thereon.”
The policy sued on contained the following provisions relating to the nonpayment of premiums and the effect thereof after as many as three annual premiums had been paid (as had been done by the insured in this case), to-wit:
“Non-forfeiture provisions. After three full annual premiums shall have been paid, if default be made of any payment of any subsequent premium, this policy shall automatically at time of lapse be unconditionally commuted to non-forfeitable paid-up insurance as provided below, payable at the same time, and on the same terms, save as to amount, as this policy.
“Within ninety days after said commutation, the insured, in lieu of this automatic unconditional non-forfeit-able paid-up insurance, may upon written demand ad dressed to the. home office of the company, receive either of the following options: >
“ (1) Receive the cash surrender value of this policy, less any indebtedness to the company hereon. The ca'sh surrender value shall be the reserve on this policy at the date of default, less a surrender charge, which in no case shall be more than two and one-half per cent, of the sum insured; or
“(2) Receive extended insurance from date of default for an amount equal to the face of this policy, for such term in years and months from the date of default as is provided below, but without the right to loans and cash surrender values.
“The amount of the paid-up insurance or the. term for which the insurance will be extended shall be such as the cash surrender value will purchase as a net single premium at the attained age- of the insured at the date of default according to the New York Standard Intermediate Table of Mortality, with interest at the rate of three and one-half per cent, per annum.
“Any indebtedness to the company under this policy will be deducted from the cash surrender value; and such indebtedness will also reduce the amount of paid-up insurance, or the amount which is continued as extended insurance, in such ratio as the indebtedness bears to the cash surrender value at due date of premium in default. ’ ’
The trial court rendered judgment for $1,000, the face of the policy, less $82, the amount of the policy loan, together with the statutory penalty and an attorney’s fee. In rendering this judgment the court made the following declaration of law:
“Under these facts, the court declares the law to be, that it was the duty of the insurer, instead of exercising the option itself, after the nonpayment of the premiums on the 15th day of December, 1932, and commuting assured’s policy to a non-forfeitable paid-up policy in the sum of $32.43, to have notified the insured that the $10.46 would buy that kind of commuted insurance, or, if he desired, he could take the option of extended insurance, and to have notified the insured how many months that sum would extend his policy of insurance. Without giv ing the assured that information, he wasn’t bound to take the option selected by the insurer, or either of the others, until that information had been given him by the insurer; and in the meantime it was the duty of the insurer not to allow the policy to lapse, and to have used the funds towards keeping the policy in force. Having thus failed to notify the assured, he wasn’t bound to take the option selected by the insurer, and the court finds, as a matter of law, that the reserve of $10.46, had it been applied towards the payment of premiums, it would have extended this policy, and the same would have been in force and effect, for a longer period than the date of the death of the assured, in August, 1933, and therefore at the time of assumed’s death in August, 1933, the policy was in full force and effect as extended insurance, and the plaintiffs, as beneficiaries, are entitled to recover the sum of $1,000; and that the judgment of the court will be in favor of the plaintiffs for the sum of $1,000, together with twelve per cent, penalty, as provided by statute, and a reasonable attorneys’ fee.”
The case, of Metropolitan Life Insurance Co. v. Stewart, 188 Ark. 903, 68 S. W. (2d) 1017, is cited in support of this declaration of law and the judgment rendered pursuant thereto.
The policy there sued on was a participating contract, which required the company, on the 31st day of December of each year, to ascertain and apportion any divisible surplus accruing thereon. It was there said: “The undisputed testimony reflects that the premiums had been paid for full five years and one month, and that one year only of the divisible surplus or profits provided for in the policy had been allocated to the insured, or, at least, no notice of the balance due him out of the divisible surplus or profits had been sent to him. These paragraphs must necessarily be read together in connection with the option paragraphs in order to properly construe them, and, when read together, mean that, before the policy would be converted automatically from a profit-participating into a non-participating, paid-up, endowment insurance policy for a nominal sum on account of the failure to pay premiums for three months, appellant should ascertain the amount due the insured out of the divisible surplus, so that it might be applied to the payment of the monthly premiums, and thereby prevent a lapse of the policy.”
Théi policy here sued on was a non-participating policy, having exáct values and options not dependent upon the company’s earnings. A table printed upon the policy contained three columns, showing, at the end of each year for a period of twenty years, when the policy became paid-up, the following options: In the first column the cash or loan values; in the second column the amount of paid-up insurance then available, and in the third column the extended insurance from that date.
Cases are cited to the effect that forfeitures^ are not favored, and that the insurer may not allow a policy to lapse for non-payment of premiums when it had sufficient funds in its hands to pay the premiums necessary to keep the policy in force. We reaffirm these holdings, but they do not control this case. There is no question of lapse or forfeiture in this case. The policy did not lapse, and there has been no forfeiture. The question is, what are the contractual rights and liabilities of the parties under the contract of insurance under the facts stipulated? Now, it is stipulated that the insured did not pay the semi-annual premium due December 15,1932, and that the insured died on August 28, 1933, without having paid it.
The non-forfeiture provisions were intended to cover, and do cover, the exact state of facts set out in the agreed statement. They provide that, after three full annual premiums have been paid (and here six such payments have been made), if default be made in payment of any premium subsequent to the third (as is the case here), the policy shall automatically at the time of lapse be converted to non-forfeitable paid-up insurance, as shown in column 2 of the table above referred to.
Now, if the policy contained nothing else as to nonforfeitable provisions after three annual premiums had been paid, no question would or could be raised, but there is a further provision. It is this. After this commutation, which is automatic, requiring no action on the part of either the insured or the insurer, the insured has ninety days after commutation aforesaid within which time, upon written demand upon the insurer, to take either of the other two options which the policy gives him.
Otherwise stated, the policy provides that, upon default in paying premiums after three annual premiums have been paid, the policy is automatically converted into one for paid-up insurance unless within ninety days after default in paying premiums the insured, upon written demand addressed to the home office of the insurer, shall elect to take either the cash surrender value of the policy or the extended insurance. After default in paying-premiums, it is the insured’s move, and, if he does not exercise this right, and within the ninety days limited for that purpose, he is bound by the automatic conversion of the policy into paid-up insurance as is provided by the contract. The contract so expressly provides, and we have no authority to change it, nor have we the right to refuse to enforce it.
The fact — and in this case it is a fact — -that the insured had borrowed the full loan value of the policy at the time the loan was made does not alter the provisions of the policy above described, although the loan does affect the value of those options.
Here, the insurer tendered, along with its answer, the full amount of the paid-up insurance to which the insured became entitled upon his failure to accept the other options, as he might have done but did not do. The insured, not only had the notice which the policy in his possession gave, as to his duty to elect within the ninety days allowed for that purpose, but it is stipulated that he received actual notice in the form of a letter from the company as to the action which it had taken.
In Couch’s Cyclopedia of Insurance Law, vol. 3, § 641a, page 2082, it is said: “But where the policy gives an option, and provides for paid-up insurance for a reduced amount if an election has not been made within a specified time, the policy automatically becomes such a paid-up one at the expiration of the period, no prior election having been made, and the insured can claim no alternative right.”
The exact question here presented was considered and decided by the Supreme Court of South Carolina in the case of Ginyard v. Lincoln Ins. Co., 135 S. C. 48, 133 S. E. 227. The policy there sued on contained the provision that “If the insured shall not, within 30 days after default, surrender this policy to the company at the home office for its cash surrender value, as provided in option (a), or term insurance, as provided in option (b), the cash value, less any indebtedness, will be applied to the purchase of paid-up insurance, as provided in option (c). The insured did not surrender the policy and accept options (a) and (b), and the company, under the third privilege of the option, converted the policy into paid-up insurance, amounting to $114, and, as has been hereinbefore stated, this sum was paid to the respondent as administratrix, and was afterwards tendered back to the company, and the company declined to receive it.”
It was there contended, as is contended here, “that all the clauses of the policy must be construed together, that the provisions of the policy must be construed most strongly against the insurer and in favor of the insured, and, if the policy of insurance can be lawfully saved, this will be done, ’ ’ but it was pointed out that, inasmuch as the insured did not apply to have his extended insurance, under option (b) above referred to, as he could have done, the beneficiary might not later claim the benefit of that option. In so holding the court said: “The insured had the policy in his possession, and was acquainted with its terms. He had a right to accept either one of the three options which he deemed most beneficial to himself, and declined to make, his election; whereupon the respondent (insurance company) exercised the right expressly given it under the terms of the policy, and converted the. cash value into paid-up insurance, amounting to $114.”
The court further said: ‘ ‘ The company had no right to exercise this option so long as the option remained to the insured to exercise a different option if he saw fit,” but that, failing to exercise this right within the time limited for that purpose, the contract must be enforced according to its terms.
So, here, the insured having made no election as to the option he would accept, the rights of his beneficiary must be determined by the provisions of the contract applicable to a case where no election was made. In this connection, it may be said that, had the insured lived for a longer period of time than the reserve of $10.46 would have continued the policy in force, his beneficiary would have been entitled to collect the paid-up insurance, a small amount, it is true, but made small by the fact that the insured had himself borrowed from the insurer the full amount of the loan value.
It follows, from what we have said, that the tender made covered the full liability, and judgment should have been rendered for that amount only, and the judgment for the face of the policy, less the amount of the policy loan, will therefore be reversed, and judgment will be entered here for $32.43, the sum tendered. | [
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Butler, J.
Claude'Gray, the appellee, brought this action to recover damages for an injury which he sustained, alleged to have been occasioned by the negligence of a fellow-servant. The answer specifically denied the allegation of negligence, and, as affirmative defenses, pleaded assumption of risk and contributory negligence. At the conclusion of the testimony, the appellant, defendant in the court below, moved for a directed verdict, which motion was overruled. The case was submitted to the jury on instructions declaring the law as to negligence, assumption of risk and contributory negligence which are conceded to be correct.
The sole ground urged for reversal is based on the contention that there was no substantial testimony tending to establish the negligence of the fellow-servant, but, on the. contrary, that the injury to appellee was the result of one of the ordinary risks of employment which he had assumed.
The argument is made that the. testimony of appellee himself fails to show any negligence on the part of his fellow workman and affirmatively discloses the fact that the injury complained of happened because of the inherent dangers to be expected and those ordinarily incident to the character of work being done. To sustain this argument, certain parts of the appellee’s testimony are quoted which do tend to support the contention. During his examination it is apparent that he became con fused, causing him to make some contradictory statements, but these serve only to affect his credibility, and the jury resolved that question in his favor.
There were only two witnesses to the incident out of which the injury grew, Gray, the appellee, and Bob Dean, his fellow-servant. Their testimony is in conflict as to the vital question in the case, that of Dean tending' to show that, if any accident happened to the appellee, it was one which could not have been foreseen or avoided, and that Dean, himself, was at all times acting with due prudence and caution.
It appears that appellee and Dean were working-in the finishing- department of appellant’s manufactory, each operating- a machine used in spraying varnish on the finished products. They worked in a large room containing the equipment used in that particular department in which steel drums containing liquid varnish were stored to be used in that room as needed. These drums were about three or four feet long, made so a spigot could be inserted in one end through which the liquid could be drawn as required. When in use, they were placed on racks about eighteen inches above the floor, high enough to set a five gallon can under the spigot. The drum used by Dean became empty. He asked the appellee to help him move another to, and upon, the rack. A drum filled with varnish was lying about fifteen feet from this place.
When appellee’s testimony is considered as a whole and fairly interpreted, it tends to establish these facts: Appellee took hold of the drum at the spigot end and Dean at the opposite end. They lifted it about twelve or fourteen inches from the floor and moved toward the rack, Dean going- backward. It was intended that the end where the spigot was to be inserted would rest on the rack, and this made it necessary for them to turn. This movement began when they were about three feet from the rack and, when completed, would place appellee.and his end next to the rack so that it could first rest thereon. As they were making this turn, or immediately after it was made, Dean unexpectedly and suddenly elevated his end of. the drum throwing the entire weight upon the appellee, who (as he expressed it) had to hold up the weight of the drum because he had no opportunity to get out of the way. When this occurred, he felt pain in the region of the small of his back, and when they had placed the drum on the rack he told Dean that he had hurt or wrenched his back in some way. At that time he did not appreciate the extent of his injury, and made no complaint to Dean relative to the manner in which the latter had handled his end of the drum. After placing the drum, appellee resumed his ordinary work, which required no great physical exertion, and continued to work for about three days. On the morning of the fourth day he was unable to rise. A doctor was called, and appellee has been unable to perform any labor since that time, that is to say, from the 24th day of October, 1933, down to the date of trial, March 7, 1934.
Dean denied that there was any change in the manner in which they were carrying the drum, but stated that they carried it straight from where it was lying to the rack, and placed it upon it — that there was no sudden uplift by him of the end of the drum he was carrying.
This testimony raised an issue of fact which the jury resolved in favor of the appellee.
The appellee testified that he had helped carry drums many times and helped set them on the racks; that at this time they were proceeding to perform that work in the usual and customary manner. He also stated that it was unnecessary for one carrying an end of the drum to warn the other at the time they were about to lift it and placé it on the rack, and that one of ordinary common sense would know that it was time to lift and that both would then lift upward to place the drum in position. These statements, and other similar statements made by appellee, are the basis for the contention that the risk was assumed by him. This overlooks, however, the sudden and unexpected lifting of the drum so that the greater part of its weight would suddenly and unexpectedly be shifted upon the appellee, as testified by him, and was sufficient to submit to the jury the question as to whether or not Dean, at the time, was acting with due care for his fellow-servant. The jury might doubtless have found that, in carrying a drum of the shape and weight of the one in question, those carrying it would be in a strained and unnatural position, and thus be liable to injury from unexpected and sudden movements, and that due care required that no such movements be made.
It is our conclusion that this evidence warranted the conclusion reached by the jury, and, as the amount of the verdict is not questioned, the judgment of the trial court is affirmed." | [
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Mehaffy, J.
The appellant, Anthony Morgan, was indicted, tried and convicted of the crime of assault with intent to rape, and his punishment fixed at three, years in the penitentiary. To reverse the judgment of conviction, he prosecutes this appeal.
His first contention is that the court erred in not granting him a postponement of the trial. He was indicted on the 15th day of May, 1934, and his trial was had on May 22, 1934.
The crime was alleged to have been committed on the 23d day of January, 1934, approximately four months before the trial. Appellant was immediately arrested, and waived a preliminary hearing. He had all that time to employ counsel, and he need not have waited until the indictment was returned before employing counsel. This court said: “We must repeat the settled rule that motions for continuance are addressed to the sound discretion of the trial judge, and a refusal to grant such a motion is not ground for a new trial unless it clearly appears to have been an abuse of such discretion and manifestly operated-as a denial of justice.” Hamilton v. State, 62 Ark. 543, 36 S. W. 1054. Moreover, the motion to continue did not comply with the statute, and we think the court did not abuse its discretion in refusing a continuance.
It is next contended that the evidence is insufficient to .justify the conviction. In testing the legal sufficiency of the evidence to support the verdict, we must view the evidence for the 'State in the light most favorable to it, and if that evidence is legally sufficient to support the verdict it cannot be disturbed on appeal. ‘This court, in commenting on this rule, stated: “The reason is that the jury are the judges of the credibility of the witnesses, and have decided that question in favor of the State by returning a verdict of guilty. Hence we need only to refer to the evidence adduced in favor of the State.” Begley v. State, 180 Ark. 267, 21 S. W. (2d) 172.
The prosecuting witness, Lurleen Burks, a fourteen year old girl, and her twin sister, attended a party on the night of January 23, 1934, at the home of Boon McDonald, in Greene County, Arkansas. Kathleen Burks, the twin sister of the prosecuting witness, met Galen Hatcher at the party, and made a date with him to take her to her sister’s home after the party. When the party broke up, Kathleen Burks got in Hatcher’s car, and her sister got in the car with them. Kathleen Burks was seated next to Hatcher, and Lurleen was sitting on her right. As they started to drive off the appellant appeared and requested Hatcher to let him ride. Hatcher replied that it was all right with him if it was with the girls, whereupon Lurleen Burks objected to his going. The appellant said he was going to the corner and climbed into the car. The prosecuting witness testified that she then sat on her sister’s lap, and that the appellant afterwards pulled her over into his lap. They then started toward the home of Lurleen’s married sister, but turned off that road. When they got a half-mile or three-quarters be yond the home, he stopped and asked Lurleen to have intercourse with him, and she told him she would not. He said: “Yes, you will, too”, and she again said she would not. About this time the prosecuting witness looked back and saw Vernon Drafton in the rumble seat, and he got out, came around and asked the appellant for Ms overcoat. Appellant gave Drafton his overcoat, and Drafton then got back into the rumble seat. Lurleen testified that the appellant had his clothes down, and got one of her bloomer legs off, and exposed Ms private parts, pulled her dress up, and had her down in the seat holding her, and that he really tried to have intercourse with her then. At this time the sister of the prosecuting witness got out and ran to Mr. Hopkins’ house. Lurleen then got out of the car, and she and her sister walked to the home of her married sister about a half-a-mile, and did not see the boys any more that night. The testimony on the part of the'State showed that appellant was wrestling with Lurleen, trying to push her down on the seat underneath him, and all the time Lurleen was trying to get him to quit and tried to push him off of her, but she could not. It appears from the evidence that he did not desist until the twin sister had gotten out of the caFand gone to Mr. Hopkins’ house, and then Lurleen was permitted to get out of the car and go, and her clothing was torn, and after the girls got out the boys drove away. The Hatcher boy was attempting the same thing with Kathleen that the appellant was with Lurleen.
The evidence on the part of the defendant goes to show that he did not use any force; but it also shows that, while he was trying to get her to have intercourse with him, he did not desist until the sister had gotten out of the car and gone to the Hopkins’ house, and then they drove away. The appellant testified and said that it was not his car, but was Hatcher’s car, and he got in with them to ride, and asked one of the girls to sit in his lap, admitted that he tallied with her about having intercourse, admitted that Hatcher and the other girl left the car, and when Hatcher came back with the other girl she jerked loose from him and ran to the house, and Hatcher then told appellant to let Lurleen out of the car, and tliey let her out and then turned the car and left.
Hatcher was put on the stand, hut declined to answer questions because it would incriminate himself. It appears from the record that he is a co-defendant, that is, he was called a co-defendant, and is probably indicted in a separate indictment.
The evidence is not entirely satisfactory, but the jury may have concluded that he intended to have intercourse with her against her will, and desisted only because the twin sister escaped and appellant thought that other parties would be notified. At any rate, these were questions for the jury, and not for this court. This court has said: “The evidence is far from satisfying, but we cannot say that it is not legally sufficient to sustain the verdict. * * The jury has passed upon her evidence, and we cannot say it is not legally sufficient to support the verdict.” Gray v. State, 125 Ark. 272, 188 S. W. 820. This court said in a very recent case: “It is well settled that an assault with intent to rape is an effort to obtain sexual intercourse by force and against the will of the person assaulted, and the intent is to be ascertained from the commission of some act or acts at the time or during the progress of the assault. The force actually used need be of no specific degree or character, but comes within the meaning of the law if it is reasonably calculated to subdue and overcome; nor need it be persisted in until the assailant’s design is accomplished; if the assault is actually begun and the intent can be inferred from the acts committed, the offense is complete, notwithstanding the fact that the assailant may, for some reason, relent and forbear from the consummation of his purpose.” Boyett v. State, 186 Ark. 815, 56 S. W. (2d) 182.
It is finally contended that the court erred in refusing to give instruction No. 1 requested by appellant. That instruction reads as follows: “You are instructed that force is the essence of the crime of rape, and that persuasion and solicitation coupled with caressing and attempting to force the will of the female to consent to the act of sexual intercourse is not sufficient to justify a verdict of guilty.”
The court did not err in refusing to give this instruction. It not only singles out certain testimony, but it also tells the jury that persuasion and solicitation coupled with caressing and attempting to force the will of the female is not sufficient to .justify a verdict of guilty. If he were attempting to force her will, it could not be said as a matter of law that this was not sufficient to justify the jury in finding that he intended to have intercourse with her against her will. Besides, the court gave instruction No. 4, which fully states the law to the jury. They are told in that instruction that they must find from the evidence beyond a reasonable doubt that the appellant feloniously, wilfully and with malice aforethought did assault Lurleen Burks, with the intent to carnally know her, forcibly and against her will.
It appears that the jury were fully instructed as to the law and as to the sufficiency of the evidence, of which the jury, and not this court, is the judge.
We find no error, and the judgment is affirmed. | [
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Baker, J.
This is a suit brought by the U-Drive-Em Corporation et al., against Earl ft. Wiseman, as Com missioner of Eevenues, alleging the invalidity of § 31 of act No. 11, approved February 12, 1934.
A rather lengthy complaint was filed in which the plaintiffs alleged that various' taxes and licenses have grown heavier and heavier' and greater and greater until the passage of act No. 11, including the said § 31, which has imposed a burden upon the plaintiffs, and which, added to the other burdens already carried by taxicab operators, means that they cannot exist or continue to do business; that § 31 discriminates grossly between taxicab operators and in favor of buses using streets of cities and towns, and buses using State highways, and the ordinary automobiles used for business and commercial purposes. It is also urged that the State at one time surrendered its right to impose the collections now insisted upon, and that cities and towns have been permitted, under the laws of the State, to impose taxes or assessments by way of regulatory ordinances, and that, if the present alleged discriminatory taxes are insisted upon, as said § 31-is construed by the defendant Commissioner of Eevenues, that part of § 31, imposing 'taxes so insisted upon, is void as being in contravention of Amendment No. 14 of the Constitution of the United States and § 21 of article No. 2 of the Constitution of the State, of Arkansas, and therefore void; that the enforcement of the tax insisted upon by the Commissioner of Eevenues would deprive the plaintiffs of equal protection of the laws, contrary to Amendment No. 14 of the said Constitution and § 18 of article 2 of the State Constitution.
It is unnecessary to set out more fully the effect of the complaint, demurrer and answer, as set forth in the pleadings. Proof was taken and exhibits, were made, to the testimony of witnesses, the effect of which proof is to show that several of the plaintiffs, according to statements filed, were not only not making any money or profits in the operation of their taxicabs, but that they were taking losses as they carried ■ on their several businesses.
This proof will not he set forth except as it becomes pertinent in the discussion of the questions argued as necessary to conclusions reached in this opinion.
This is a class suit affecting- all taxicab operators in the State. A history of the legislation affecting the highways in the State is not necessary. It is sufficient to say that at the time of the enactment of act No. 11, approved February 12, 1934, the State had defaulted in its bond payments and the interest thereon, and it became necesr sary to refund the bond issues, and at the same time to provide a method to meet accruing liabilities. It must be conceded at this time that the bonded indebtedness was excessive as compared-with the State’s ability, to pay, and. the necessary effect of such conditions was to impose somewhat onerous burdens upon those subject to taxation to save the State from future and further defaults in its indebtedness. It was necessary .that, in addition to the tax on gasoline or motor fuel, there should be a tax on motors or automobiles, trucks, buses, etc.
Section 31 classified motor vehicles-and imposed a tax upon these classes to be collected by the Commissioner of Revenues. One of the classifications, that being the one about which appellants are complaining, provided that “ automobiles equipped with pnuematic tires used for the transportation of persons f-or hire shall be charged a fee of 45 cents per horsepower generated or developed by the motor propelling such vehicle, and in addition there shall be charged a’ fee, based upon the-gross weight of.the vehicle of $1.50 per hundred pounds or fraction thereof. ’ ’ The tax so imposed is substantially ■ higher than the tax imposed upon the same automobile or same type of motor vehicle when not so used to transport persons for hire. ■
It is strongly urged by appellants that the classification made by the State is unfair and unequal. For the purposes of argument, that proposition might be conceded, and, even if that were true, it. would not be a real reason for declaring § .31, or any part of it invalid. It is a principle very generally recognized by all of the courts that almost any system of taxation results in many inequalities and perhaps unfairness to particular classes, and very frequently seriously affecting individuals composing a particular class. This arises more often, not out of the law itself, but out of the peculiar conditions under which classes, or individuals, may find themselves in their manner of doing business or location, rather than out of the classification.
This is illustrated in the brief filed for appellants in this case. They argue the fact rather seriously that they confine their operations to the streets of cities and towns, as distinguished from the system of State highways. It should be observed, however, that classification in itself does not confine them to the municipalities. They urge also that they are subject to licenses or taxes in the respective cities and towns in which they operate, and that these taxes or licenses are burdens; that they pay other taxes to the cities, municipalities, schools, etc., and that argument suggests, when considered, the fact that the burdens imposed by said § 31 are seemingly oppressive only by reason of the fact that there are other exactions, no one in itself which, as distinguished from the others, might be considered excessive.
Appellants recognize in their brief that the State has power to tax, but they ask us to construe § 31 aforesaid so as to grant relief from what they urge is an over-burdensome rate of taxation.
There is no ambiguity in said § 31. The. language used, when given its ordinary meaning, is clear and understandable, and there is nothing to invite construction or interpretation. To attempt to read into this section any meaning, other than that which is clearly set forth upon its face, would be an invasion by the court of the legislative field, a course of action we feel unauthorized and unwilling to pursue. Our province can go no further than try to determine, the legislative intent and to give effect to it, but in no instance shall we attempt to defeat the legislative intent so clearly expressed, and when it is not in violation of public policy as defined by the Constitution.
But it is urged that the act as written, if enforced by the Commissioner of Revenues, will be violative of the Fourteenth Amendment of the Constitution of the. United States and of § 21 of article 2 of the Constitution of the State of Arkansas.
Section 31 is not in conflict with either the State or United States Constitution. We call attention to a most recent case, decided by the United States Supreme Court, A. Magnano Co. v. Hamilton, 292 U. S. 40, 54 S. C. R. 599. The Supreme Court of the United States had under consideration the statute passed and enforced in the State of Washington, which levied an excise tax of fifteen cents per pound on butter substitutes sold in the State. That statute expressly exempted from taxation butter substitutes when sold for exportation to any other State of the nation, and more particularly the doing of any act which would constitute an unlawful burden on the sale or distribution of butter substitutes in violation of the interstate commerce act. The act was such that it did not impose any burden upon interstate commerce. Plaintiff in that case was selling a preparation called “Nucoa, ” which was a form of Oleomargarine, from the sale of which it derived a large net profit in the State of Washington. The plaintiff urged that the tax was prohibitive; that plaintiff could not, after the passage of that act, except in violation of it, make any intrastate sales; that the imposition of the tax had the effect of depriving the complainant of its property without due process of law, and of denying to it the equal protection of the laws, in violation of the Fourteenth Amendment; that the tax was not levied for a public purpose, but for the sole purpose of burdening or prohibiting the manufacture, importation and sale of Oleomargarine, in aid of the dairy industry.' The court held (1) that, in respect of the equal protection clause, the differences between butter and Oleomargarine were sufficient to justify their separate classification for purposes of taxation, and (2) that the tax was for a public purpose, and this was disclosed by the use. which was to be made of the revenue derived from the tax, and that there was no ulterior motive or purpose which may have influenced the Legislature in passing the act. That court said in the case: “The point may be conceded that the tax is so excessive that it may or will result in destroying the intrastate business of the appellant; but that is precisely the point which was made in the attack upon the validity of the 10 per cent, tax imposed upon the. notes of State banks involved in Veazie Bank v. Fenno, 8 Wall. 533, 548, 19 L. ed. 482, This court there disposed of it by saying that the. courts-are without authority to prescribe limitations upon the exercise of the. acknowledged powers of the legislative departments. ‘The power to tax may be exercised oppressively upon persons, but the responsibility of the. Legislature is not to the courts, but to the people by whom its members are elected. ’ Again in the McCray case, su,pra, answering a like contention, this court said (page 59 of 195 U. S., 24 S. Ct. 7-69,'778) that the argument rested upon the proposition ‘that, although the tax be within the power, as enforcing it will destroy or restrict the manufacture of artificially colored Oleo-, margarine, therefore the power to levy the tax did not obtain. This however is but to say that the question of power depends, not upon the authority conferred by the Constitution, but upon what may be the consequence arising from the exercise of the lawful authority.’ And it was held that if a tax be within the lawful power of the Legislature, the exertion of the-power may not be restrained because of the results to arise from its exercise. ’ ’
• This court in the case of Fort Smith v. Scruggs, 70 Ark. 549, 550, 69 S. W. 679, upheld an ordinance of the city of Fort Smith imposing a privilege, tax, such as we have under consideration, upon buggies and wagons, making a distinction or classification of the same. The tax for a one-horse buggy or phaeton carrying not more than two persons was $2 per annum'and for a one-horse delivery wagon $4 per annum. The power to impose such a tax and making such classifications' was upheld, though the case was reversed for other reasons.
This court said, in the case of Standard Oil Co. v. Brodie, 153 Ark. 114, 239 S. W. 753: “It is not essential to the validity of a tax, either upon property or upon privilege, that it be absolutely free from inequalities or discrimination. The lawmakers have some discretion, even in legislating with reference to the power of taxation as restricted by the terms of the Constitution, and they may determine the scope and extent of the exercise of the taxing power, and a mere incidental inequality or discrimination does not affect the validity of the statute. ’ ’
It is unnecessary to pursue this argument further than to call attention to the case of Fitzgerald v. Gates, 182 Ark. 655, 32 S. W. (2d) 634, in which case practically every question raised by the complaint in the instant case was settled by this court. In effect the last cited case decided the validity of the classifications and the imposition of a privilege tax upon those who operate motor vehicles for hire. This court said in that case: “Whether a license tax is prohibitory is primarily a legislative question. ‘All presumptions and intendments are in favor of the validity of the tax; in other words, the mere amount of the tax does not prove its invalidity. ’ The reasonableness of an occupation tax does not depend on whether or not a hardship results in an isolated case, but instead upon the general operation of the tax in the class to which it applies. The amount of the. tax is not to be measured by the profits of the business taxed, and the mere fact that the particular person taxed conducted his business at a loss does not of itself make a tax unreasonable.” Cooley, Taxation, (4th ed.) 3433. See also Wright v. Hirsch, 153 Ga. 229, 116 S. E. 795; Western Union Tel. Co. v. Decatur, 16 Ala. App. 679, 81 So. 199; N., C. & St. L. v. Attala, 118 Ala. 364, 24 So. 450; N., C. & St. L. v. Ala. City, 134 Ala. 414, 32 So. 731; Veazie Bank v. Fenno, 8 Wall. 553, 19 L. ed. 482; Merchants’ Transfer & Warehouse Co. v. Gates, supra.”
It necessarily follows that the decision of the chancery court is correct. It will therefore be affirmed. | [
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McHaney, J.
Appellee sued appellant to recover for eight months’ salary as superintendent of its orphanage in Texarkana, Arkansas, at $85 per month, and for certain expenditures he claimed to have made in improving its property and in operating it, in a total sum of $862.49. He claims to have been employed by appellant in such capacity for a period of one year from November 10,1932, to November 10, 1933, and that it failed to pay him his salary, except for a period of three months; that it, through its board, demanded his resignation on June 1, 1933, notified him his contract of employment would no longer be recognized and repudiated it. He prayed judgment in said amount, that it be declared a lien on its property, and that same be foreclosed and the property sold. Appellant defended the action on the ground that, although appellee had been employed by it as superintendent of its orphanage at a salary of $85 per month, he had been discharged by its board of trustees for cause on July 15, 1933, and that, if appellee had vacated the orphanage on that date, as he should have done, it would have been indebted to him in the sum of $382.50, which amount it offered to pay him, but same was refused, and that he refused to vacate said orphanage after his discharge, continued to remain in possession and supported himself and family out of the funds donated to care for the orphans. It further alleged that he was discharged after an investigation of his moral fitness for the position after an investigation by the board at his request. Cross-complaint was filed against him seeking to recover possession of its property and for damages in the sum of $1,000. A trial of the ease resulted in a decree in appellee’s favor for $793.35, and required him to vacate the property and deliver possession within 10 days from the date of the decree. Thereafter appellee sued out a writ of garnishment against J. B. Richardson and caused execution to issue on said judgment. Timely motions were made to quash said writs, which were overruled by the court. This appeal challenges the correctness of said decree in rendering judgment for appellee, and the action of the court in overruling said motions to quash said writs.
In view of the disposition we make of the case, it becomes unnecessary to discuss or decide whether the funds or property of a public charity may be lawfully subjected to a writ of garnishment or the levy of an execution on a judgment.
For the purpose of this decision we assume that appellee had a contract for one year as superintendent of appellant’s orphanage, although this allegation in the complaint was denied in the answer, and there is little, if any, evidence in the record to support it. But, assum ing that there was such a contract, the law does not impose the burden on appellant of compliance therewith for the full term at all hazards. Disability, death, resignation or disqualification for cause, such as gross immorality, theft, embezzlement or other criminal conduct rendering him unfaithful or unfit for the performance of his duties, would discharge appellant of its further obligation to perform the contract. See 39 C. J., p. 84 et seq. The fact is that certain charges of immorality had! been made against appellee relating to misconduct with his adopted daughter. The board of trustees met on June 7,1933, pursuant to adjournment. At the previous meeting these charges or accusations against appellee were considered and certain witnesses were heard. Other witnesses were heard at the June 7 meeting, including appellee, his wife, adopted daughter, inmates and former inmates of the orphanage. The minutes of this meeting read in part as follows: “The board retired to give the matter due consideration as to the truthfulness of the charges and to render to the best of their ability a proper decision. After due consideration, the board found that the alleged accusations and rumors were in the main true.
“Whereupon a motion was made and unanimously adopted that it would be for the best interest that Eld. A. T. Wilson be discharged, his resignation being called for effective July 1, 1933, and, if resignation not be made by then, the office of superintendent be declared vacant, and that he be discharged and that he- and family vacate by July 15th.”
This record clearly shows he was discharged for cause after a full and fair investigation. He was asked to resign effective July 1, but, if he failed to resign by that time, the office was “declared vacant, and that he be discharged and that he and his family vacate by July 15.” He was so notified immediately. He refused to resign, and he refused to vacate. The board had the. right, and it was its duty, to make the investigation it did make. Its judgment in the premises is final since no review thereof was sought, and there is nothing in this record to show the board’s action to be arbitrary. Appellee’s employment ceased on July 15, 1933, and appellant was not liable for further salary under the contract. He thereafter had no right to remain in the institution, but he continued to do so until about the middle of December, some five months, with his wife and children, maintaining himself and family for such time out of donations to the orphanage. Appellee contends, however, that he remained on duty, performed services, accepted orphans, etc., all with the knowledge and acquiescence of the board. It is true he remained after his discharge, but not with the consent of the board. A committee was sent to the institution to check him out, make an inventory, etc., but appellee refused them the right to do so. In order to prevent more trouble and undue publicity to an institution dependent upon charity for support, the board refrained from the use of physical force or court procedure to remove him. It cannot be said it estopped itself or approved his action so as to make it liable for his expenditures or salary during such time.
It is admitted that appellant is indebted to appellee for salary unpaid in the sum of $382.50, but we are of the opinion that the upkeep for himself and family during the time he unlawfully and wrongfully remained in possession of the institution after his discharge should be offset against this amount. The record does not show what this would reasonably be worth. The judgment will be reversed, and the cause remanded with directions to determine this amount and to offset same to the extent thereof against the amount due for salary in the sum of $382.50. | [
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McHaney, J.
Appellee brought this action against appellants to recover damages for personal injuries sustained by her when struck by Daniel McG-rew, the other appellant’s messenger boy, on a bicycle, as she attempted to cross East Markham Street between the intersection in the 500 block in the city of Little Rock, on April 21, 1933. In the midst of the trial after a number of witnesses had been examined, the following occurred:
“The court: At this point in the trial, the court is advised that there is a message to one of the jurors, Mr. Allen Johnson, to the effect that his sister is at the point of death. Whereupon the court excuses Mr. Johnson from the jury, and announces its intention of proceeding with the trial with eleven jurors. The defendant moves the court to declare a mistrial, which the court declines to do.” “Mr. Lincoln: The defendant excepts.”
The case proceeded over appellants’ objections before the eleven jurors, and a verdict was returned against appellants signed by all eleven jurors, upon which judgment was entered and from which comes this appeal.
For a reversal of the judgment against them appellants first insist that the court erred in continuing the trial with only eleven jurors over their protest. This assignment of error must be sustained. Section 7 of the Declaration of Rights, which is § 7 of article 2 of our Constitution, reads as follows: “The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law.”
In construing this section, this court in Minnequa Cooperage Co. v. Hendricks, 130 Ark. 264, 197 S. W. 280, held that it referred unquestionably to the jury trial as known and recognized by the common law, and further held that the word “jury” at common law means twelve men, and that the Legislature could not abridge the number. The earlier decisions of the court in construing similar provisions of an earlier Constitution were there reviewed. Section 7, article. 2, of our Constitution was amended by amendment No. 16, so as to read as follows: “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law; and in jury trials in civil cases, where as many as nine jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury; provided, however, that where a verdict is returned by less than twelve jurors, all the jurors consenting to such verdict shall sign the same.” This amendment to the Constitution clearly recognizes that a jury must consist of twelve jurors. Of course, the parties could have consented to a continuation of the trial with eleven jurors,but appellants did not consent. On the contrary, they moved for a mistrial because the juror was excused, and excepted to the refusal of the. court to order a mistrial.
But appellee says that appellants waived the legal number of jurors by proceeding with the trial and their acquiescence therein, by the questioning of witnesses and moving the court for a peremptory instruction, all of which, it is insisted, amounted to a waiver of a jury of twelve persons. We cannot agree with this argument. Cases cited by counsel for appellee are not in point. Appellants had the constitutional right to a trial by a jury of twelve persons, and cannot be held to have waived this right by proceeding to defend this action before a jury of eleven. They were compelled to do so by order of the court or else abandon further participation in the case. Nor does the fact that all eleven of the jurors signed the verdict help the situation, as appellants were entitled to have twelve jurors present, and it cannot be said that the result would have been the same had the twelfth man been present. This, however, could make no difference as to whether the result might or might not have been the same, as appellants’ constitutional rights were invaded.
Other questions are argued by counsel for appellants for a reversal of the judgment, but, inasmuch as they may not occur again in a subsequent trial, we refrain from a discussion of them.
For the error indicated, the judgment will be reversed, and the caused remanded for a new trial. | [
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Smith, J.
On November 27, 1922, Mrs. Clara Taylor borrowed $531 from the ¡Bank of Taylor, of Taylor, Arkansas, and to secure the payment thereof executed a deed of trust, by the terms of which she conveyed to a trustee for the bank three lots in the town of Taylor, upon which a small building was located. Before the maturity of the note, the Bank of Taylor borrowed $10,000 from the Farmers’ Bank & Trust Company, of Magnolia, Arkansas, and indorsed and delivered Mrs. Taylor’s note, along with other notes, as collateral security for that loan. About the time Mrs. Taylor’s note fell due, Romie Taylor, her husband, paid the amount thereof to the Bank of Taylor, and at the time of payment was advised that the bank did not have the note in its possession, but that the note would be obtained and delivered to him. He did not inquire where the note was, and was not advised. Soon thereafter the Bank of Taylor became insolvent, and was taken over by the State Banking Department for the purpose of liquidation, and the Farmers’ Bank & Trust Company notified Mrs. Taylor that it held this note as collateral'. The exact date when the Bank of Taylor was taken over for liquidation does not appear, but the payment by Mr. Taylor was made before that time.
The Farmers’ Bank & Trust Company filed suit against Mrs. Taylor on the note and prayed the foreclosure of the deed of trust securing it. M. E. Britt filed an intervention, and was made a party to this suit.
It appears that when Mrs. Taylor’s note was pledged by the Bank of Taylor, no marginal notation was made of that fact upon the record where the deed of trust was recorded. But it does appear that, when Mrs. Taylor’s husband made the payment above stated, the cashier of the Bank of Taylor indorsed payment and settlement of the note upon the deed of trust and delivered that instrument to Mr. Taylor as having been cancelled and satisfied, and on January 24, 1923, which appears to have been about the date of payment, the vice president and cashier of the Bank of Taylor made an indorsement upon the margin of the record where the deed of trust was recorded, which was duly attested by the clerk and recorder, reading as follows: “I hereby acknowledge receipt in full of the notes set up in this instrument and declare the lien created thereby fully satisfied and released, this the 24th day of January, 1923. (Signed) Bank of Taylor, by L. K. Welborn, Y. P. & Cash. Attest: Emmett Atkinson, Clerk.”
Mrs. Taylor testified that she thought the debt had been paid, and that she so advised Britt when she sold him the lots covered by the deed of trust. Britt admitted knowing that the deed of trust was of record, but was assured that the debt which it secured had been paid, and he thought Mr. Taylor was in possession of both the note and deed of trust. As a matter of fact, Taylor was in possession only of the deed of trust, but Britt testified: “I thought it was clear. I figured him having the note and mortgage and the record being satisfied, it was clear,” but before completing the purchase of the lots Britt went to the office of the clerk and recorder and read the marginal indorsement upon the record, set out above.
The court rendered judgment against Mrs. Taylor for the amount of the note, but refused to decree a foreclosure of the deed of trust, and the Farmers’ Bank & Trust Company has appealed from that decree. The judgment for the amount of the note is correct, and is not questioned.
We are also of the opinion that the court was correct in refusing to decree a foreclosure of the deed of trust. The case of Kinney v. North Memphis Savings Bank, 178 Ark. 716, 11 S. W. (2d) 486, which has several times been adhered to and followed, is decisive of the question. It was there said: “Section 2 of act 374 of 1917 (which appears as § 7399, Crawford & Moses’ Digest) gives to any person who, according to the face of the record, is the owner of any of the liens there mentioned, the right to satisfy the liens of record by indorsements on the margin of the record where the instrument is recorded, and, when this is done, the subsequent purchaser, mortgagee, or the judgment-creditor, is protected against such lien, ‘unless there shall appear on the margin of the record where such instrument is recorded a memorandum showing that the said mortgage, deed of trust, vendor’s lien, lien retained in deed or note, or other evidence of indebtedness secured thereby, has been transferred or assigned, which said memorandum shall be signed by the transferrer or assignor, giving the name of the transferee or assignee, together with the date of such transfer or assignment, said signature to be attested and dated by the clerk.’ * * * In other words, the assignee of the note or debt secured by the lien takes, by the assignment, the lien securing the debt, but, if he neglects to have indorsed on the margin of the record the memorandum showing that the lien has been transferred to him, he is subject to have his lien defeated if satisfaction of the lien is indorsed on the margin of the record by the apparent owner of the lien.” See also Rockford Trust Co. v. Purtrell, 183 Ark. 918, 39 S. W. (2d) 733; Vance v. White, 180 Ark. 470, 21 S. W. (2d) 853; Lehmann v. First National Bank of St. Louis, ante p. 604, Hughes on Arkansas Mortgages, § 205.
There having been no compliance with the require- • ments of § 7399, Crawford & Moses’ Digest, Britt acquired title to the lots free from the lien of the deed of trust, and the decree so adjudging is affirmed. | [
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Mehaffy, J.
In the general Democratic primary election held in Prairie County on August 14,1934, J. P. Simms and J. J. Holmes were candidates for the office of county and probate judge, of said county.
On August 17, 1934, the county central committee canvassed the returns of said primary election and certified J. J. Holmes to be the nominee for said office.
On August 21, 1934, J. F. Simms commenced in the. circuit court at DeVall’s Bluff, an action against J. J. Holmes to contest the certificate of nomination issued by the committee. Thereafter J. J. Holmes filed a motion to dismiss the action on the ground that the jurisdiction of actions to contest primary elections was not by law vested in the circuit court for the Southern District of Prairie County. The circuit court overruled the motion, and thereupon J. J. Holmes, the defendant in the election contest case, filed in this court an application for a writ of prohibition against W. J. Waggoner, circuit judge of the Prairie Circuit Court, to prohibit said court from exercising jurisdiction in the suit brought at De-Vall’s Bluff to contest the election.
The only question for our consideration is whether the circuit court at DeVall’s Bluff had jurisdiction to try the election contest case. "
Section 12 of article 7 of the Constitution of the State of Arkansas is as follows:
“The circuit courts shall hold their terms in each county at such times and places as are or may be prescribed by law.”
The Legislature in 1885 passed an act establishing separate courts in Prairie County. The county was by the act divided into two judicial districts, Des Arc being the county seat of the county.
Section 3' of the act provided that the circuit court should hold the same number of sessions in the town of DeVall’s Bluff as by law were held at the county seat of said county, and at such times as might be designated by law. There can be no doubt that, under the provision of the Constitution above quoted, the time and place of holding court was designated by this act, and that De-Vall’s Bluff was designated as the place for holding the circuit court.
Section 24 of article 19 of the Constitution is as follows:
“The General Assembly shall provide by law the mode of contesting elections in cases not specifically provided for in this Constitution.”
'The initiated act provided for contesting’ elections. Crawford & Moses’ Digest, § 3772. It provides: “A right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee. The action shall be brought in the circuit court. If for the office of representative or a county or township office, in the circuit court of the county; and if for a circuit or district office., within any county in the circuit or district wherein any of the wrongful acts-occurred; and if for United States Senator or a State office, in the Pulaski Circuit Court. The complaint shall be supported by the affidavit of at least ten reputable citizens and shall be filed within ten days of the certification complained of, if the complaint is against the certification in one county, and within twenty days if against the certification in more than one county. The complaint shall be answered within ten days.”
It is contended that the action must be broug’ht at Des Arc, the county seat, and that the circuit court held at DeVall’s Bluff had no jurisdiction.
In the case of Pearce v. Doyle, 145 Ark. 371, 224 S. W. 740, there was an election contest filed in Lawrence County at Powhatan, and summons was served on the defendant in Pulaski County, Arkansas. The defendant in that case challenged the jurisdiction of the court and the validity of the service. It was alleged that all the acts complained of occurred in the Eastern District of Lawrence County, and also that the defendant was a citizen of the Eastern District of Lawrence County, and that the circuit court for the Western District had no jurisdiction. The court said that the appellee set up in his motion the act of 1887 establishing’ two separate judicial districts in Lawrence County. The Lawrence County act and Prairie County act are identical in the sections involved. The circuit court dismissed the cause in the case of Pearce v. Doyle, supra, and an appeal was prosecuted to this court. The court also said: “The court erred in dismissing the appellant’s complaint. Section 4 of act 85 of the Acts of 1887, establishing two separate judicial districts for the county of Lawrence (the eastern and the western), and providing that no citizen or resident of one district should be liable to be sued in the other “in any action whatever,” had reference to ordinary civil actions. In Logan v. Russell, 136 Ark. 217-221, 206 S. W. 131, we held that contest proceedings under the law regulating primary elections, supra,‘‘ do not constitute civil actions within the meaning of our Code of Civil Practice. ’ ’
Under our primary election law, contests for the office of county and probate judge shall be brought in the circuit court of the county wherein any of the wrongful acts complained of occur. In the case of Pearce v. Doyle, supra, it was said:
“The Brundidge Act takes no notice of the division of counties into separate judicial districts for the purpose of election contests provided therein, but, for the office of representative, and for county and township offices, the county is considered as an entirety.”
In the case of Logan v. Russell, supra, the court said: “The contest proceedings provided by this statute do not constitute civil actions Avithin the meaning of our Code of Civil Practice. It has been so decided by this court with reference to election contests authorized under another statute. In the case of Davis v. Moore, 70 Ark. 240, 67 S. W. 311, it was expressly decided that election contests are special proceedings and not civil actions under the Code, and everything must be done therein according to the statute regulating such proceedings Avhere such statute, exists. * * * The provisions of the statute under consideration should receive a liberal interpretation-so as to effectuate the wholesome purposes intended by its framers, but, the proceedings authorized thereunder being special, Ave cannot, without doing violence to Avell settled rules of interpretation, extend those provisions beyond the plain meaning of the language employed.”
The purpose of the primary election law and the provision in that law for contesting elections should receive a liberal interpretation. The law provides that any candidate may contest an election, and that, if for a county office, the action to contest the election must be in the circuit court, and in the county where the election was held. We think, under any reasonable interpretation, the statute means in the circuit court wherever held in the county.. The act creating separate judicial districts provides where cases shall be brought, but this means civil actions and not special proceedings.
In a civil action, as a rule, the parties have, a right to a jury trial, and there appears to be some reason why it should be tried in the district where the defendant resides. No such reason exists with reference to an election contest or any other special proceeding of this kind. The same judge tries the case, no matter in which district it is brought.
We now hold that an action to contest an election for a county office may be brought in the circuit court in either district, if in a county that has more than one judicial district.
The case of Cowger v. Ellison, 175 Ark. 478, 299 S. W. 1031, so far as it conflicts with this opinion, is overruled.
The circuit court at DeVall’s Bluff has jurisdiction to try the case, and the writ is therefore denied. | [
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Mehaffy, J.
On June 1,1923', the appellant, Metropolitan Life Insurance Company, issued and delivered to the International Paper Company of New York, in said State, its group policj^ No. 1864G-, insuring* and agreeing to insure the lives of certain employees of the said International Paper Company. The employees of the Southern Kraft Corporation were eligible for insurance under the group policy.
On December 1, 1928, appellant, Metropolitan Life Insurance Company, executed a certificate, No. 15,881, and delivered same to the International Paper Company to be by it delivered to the appellee, Curtis Harper, this certificate evidencing that the said Curtis Harper was then insured under the group policy above mentioned.
This policy provided, among other things, that, upon receipt at the home office in New York City, of due proof that the insured had become, while insured thereunder, and prior to his 60th birthday, totally and permanently disabled, as a result of injury or disease, so as to be prevented thereby from engaging in any occupation or performing any work for compensation or profit, it would pay the insured a stipulated sum per month for a certain number of months.
The appellee, Curtis Harper, continued in the employ of the Southern Kraft Corporation at Camden until April 7, 1933', on which date he received an injury as a result of being kicked 'by a mule, which caused his permanent and total disability.
Suit was brought by the appellee in the Ouachita Circuit Court on July 14,1933. The appellee alleged the execution and delivery of the certificate to him, and the execution and delivery of the group policy to the International Paper Company, and that appellee was in the employ of the Southern Kraft Corporation at the time of his injury, and that the certificate was in full force and effect. He alleged that he was injured prior to his 60th birthday, by being kicked on his head and other parts of his body by a mule; that, as a result of said injuries, his skull was fractured, and there was a severe injury over his right eye, one over his left eye, injury to his left ear, and severe injury to his back and kidneys, and that he became totally and permanently disabled; that he duly notified the appellant of his injuries and disability, and requested blank forms upon which to make proof; and that the appellant refused to furnish such forms. It was further alleged that he was entitled, under the certificate, to recover 20 monthly payments of $71.45 each, aggregating $1,429, for which sum he prayed judgment. The group policy and the certificate were attached to the complaint as Exhibits A and B, and the total and permanent disability clause was copied in his complaint.
On October 3, 1933', the appellant answered, admitting that it is a corporation chartered under the laws of New York and authorized to do business in Arkansas; denied that the certificate contained the provisions alleged in the complaint; denied that appellee, from the date that the certificate was issued, was continuously in the employ of the International Paper Company until April 7, 1933; denied that on that date the insurance in force was $1,400, or any other sum; denied that appellee was in the employ of the International Paper Company; denied that appellee was required to drive and feed certain mules; denied that he was kicked on the head and other parts of the body by one of the mules; denied that he was permanently injured. It specifically denied the injuries mentioned in the appellee’s complaint; denied that appellant was notified and requested to furnish blank forms on which to make such proof; denied that it refused to furnish forms; denied that it denied liability prior to the filing of the suit; denied that appellee is entitled to recover $71.45 for 20 months or any other sum; denied that it is liable to appellee in any sum. It further denies any repudiation of the contract, but expressly affirms the contract as expressed in the policy sued on.
Appellant then pleads certain paragraphs of the group policy as a defense, and denies that appellee received injuries while he was insured under said group policy. Appellant further states that the contract was made in New York, is not an Arkansas contract, and that appellee cannot recover 12 per cent, penalty or attorney’s fees.
Appellee introduced^ the group policy and the certificate above mentioned, and he testified about his age and about working for the International Paper Company and his injuries.
Physicians were also introduced who testified as to the injuries. The appellant also introduced physicians who testified. Their testimony was in conflict, and it would serve no useful purpose to set it out.
The following stipulation was introduced: “It is stipulated and agreed by and between counsel for plaintiff and defendant that: The first and only notice, claim or proof that plaintiff had become totally and permanently disabled as defined in the policy was by letter of June 20,1933, written by Lawrence E. Wilson, as attorney for plaintiff, and addressed to the Metropolitan Life Insurance Company, New York City. (Original of said letter hereto attached as part of this stipulation.) That defendant company replied to said letter under date of June 27,1933, and on same date wrote the assured, International Paper Company, requesting information as to the status of plaintiff’s claim. (Copies of said letters hereto attached as part of this stipulation.) That on July 6, 1933, the defendant again wrote the attorney for plaintiff sending’ him the forms GH 24-C on which to make claim as requested, and on the same date and on July 11,19 and 21 it wrote other letters seeking information as to the status of plaintiff’s insurance claim. (Copies of said letters hereto attached as part of this stipulation.) That, without further notice or time, this suit was filed on July 14,1933', and summons issued. That shortly thereafter notice of summons was received by the defendant. That prior to the filing of this action no denial of liability had ‘been made by the defendant.
It is further stipulated and agreed that Master Insurance Policy No. 1864-Gr, pleaded in the complaint, was made, executed and delivered in the State of New York, between the defendant and the International Paper Company, both New York corporations, and dated June 1, 1923. That the certificate, exhibited with the complaint, was executed and delivered to said International Paper Company in New York for the use and benefit of plaintiff and 'by said paper company delivered to plaintiff in Camden, Arkansas, on December 1, 1928. That at the time of such delivery to plaintiff he was a citizen and resident of Arkansas, and defendant was authorized to do business in said State.”
Certain correspondence was introduced, which will be referred to hereafter. The case was tried before a jury, and a verdict for appellee was returned for $1,429. The case is here on appeal.
It is first contended by the appellant that the action was prematurely brought. It is contended that the action could not 'be brought until proof of disability was received by the home office in New York City. The policy provides that the first monthly installment will be paid upon due proof of total and permanent disability. There is nothing in the contract as to the character of proof required. The injury occurred on April 7, 1933, and on June 20 the attorney for appellee wrote a letter to the appellant, stating that appellee was insured under the group policy, giving the. number, and stated to tbe appellant in this letter that be bad made an effort to procure blanks upon which to file claim under the policy, but had failed to receive them; and said further: “This is to advise you that he expects to assert his rights under the total and permanent disability benefits provided for in the said policy. I will appreciate you writing me at your earliest convenience advising me the proper person to communicate with, in the event you have a State representative.”
This letter was written on the 20th of June. Thereafter, on June 27, the appellant wrote the attorney that-it had received his letter of the 20th, and that it was necessary that it know the present status of claimant’s insurance, and that it was writing to the group policyholder for this information.
Although appellant was informed on June 20th that appellee had made an effort to get blanks to make proof, the appellant, seven days thereafter, wrote to him, not sending him blanks to make proof or requesting any proof, but stating to him that they were writing the group policyholder. They introduced a letter which the evidence shows that they did write to the group policyholder.
On July 6th, the evidence shows a letter was written, in which the statement was made that they were attaching two forms, SH 24 C, on which claim was to be made. Three months had elapsed since the accident to appellee, before this letter was written, and the company had been informed on June 20th that the appellee intended to assert his rights under the. total and permanent disability benefits provided for in the .policy. While the letter states that blanks to make proof of claim were attached, Mr. Wilson testifies that they were never received, and presented papers, and said that that was all that he had ever received from the company.
This evidence was admitted without objection. Of course it was competent for the appellee to prove that he never received the blanks, although it might be admitted that they were mailed. But in their first letter in response to Wilson’s letter of the 20th, appellant not only did not furnish, blanks, but it did not ask for any information or proof, but manifested an intention to get its information from the group policyholder. Appellant was then in the attitude of either treating Wilson’s communication as proof, or of refusing to send him blanks to make the proof; but in either event he would have a right to bring his suit.
The policy provides that the first installment will be paid upon receipt of due proof of disability. Appellant either accepted Wilson’s communication as proof, or declined to furnish him blanks at that time, and did not at that time ask for any additional proof or information. Appellee had a right to treat this as a breach of the contract. If he was entitled to recover at all, liability attached on the 7th of April, and the suit was not brought until July 14th. Immediately on the bringing of the suit, the appellant was again advised of appellee’s claim and the facts he relied on.
When one party to a contract breaches it, the other party may immediately bring suit to recover .damages for the breach. It is true that appellant, in its answer, expressly disavows any repudiation of the contract, but it is also true that it denies that appellee was continuously in the employ of the. International Paper Company until April 7, 1933; it denies that on that date appellee had any insurance in force; and also denies that appellee was in the employ of the paper company on April 7th. It might very well say that it admitted issuing the group policy, and at the same time say that the appellee was never in the employ of the paper company, and never had any policy, and this would be a repudiation of the contract with appellee, notwithstanding it states in its answer that it does not repudiate the contract.
Insurance policies, as we have frequently said, are liberally construed in favor of the insured, and strongly against the insurer. National Life & Acc. Ins. Co. v. Whitfield, 186 Ark. 198, 53 S. W. (2d) 10.
The next contention of appellant is that the verdict is not supported by the evidence, and is contrary to the law and the evidence. The evidence was in conflict as to the. extent of appellee’s injuries, and that question was settled by the jury under proper instructions, given both at the request of 'the appellee and the appellant.
There was sufficient evidence to submit the question of total and permanent disability to the jury. This court has frequently decided what constitutes total and permanent disability, and we do not deem it necessary to discuss this question here. Among the cases discussing this question are the following: Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600; Mo. State Life Ins. Co. v. Johnson, 186 Ark. 519, 54 S. W. (2d) 407; Guardian Life Ins. Co. v. Johnson, 186 Ark. 1019, 57 S. W. (2d) 555; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; Travelers Prot. Ass’n v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364; Mutual Life Ins. Co. v. Marsh, 186 Ark. 61, 56 S. W. (2d) 433.
It is next contended that the verdict of the jury is excessive. The policy provided for the payment of 20 monthly installments of $71.45 each. At the time of the suit, there were four installments due. The other installments were due, one every thirty days.
“The breach of the contract, the appellant company’s refusal to pay under its terms, and denial of any liability thereunder, gave the insured the right to sue. for gross damages for such breach of contract, and the court has held that the measure of such damages is the present cash value of the past and future installments of the weekly indemnity, based on the life expectancy of the insured.” Nat. Life & Acc. Ins. Co. v. Whitfield, supra; Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335.
The recovery was for $1,429, the aggregate amount of the monthly installments. It should have been for the present value of the installments. As we have said, four installments were already due, and that left 16 installments that were to become due, one every 30 days. The four installments which were already due, together with the present cash value at the time of the trial of the 16 other installments, aggregate $1,362.92. The verdict should therefore have been for this amount, instead of $1,429, and it is modified so as to give judgment for $1,382.92.
It necessarily follows that the 12 per cent, damages should be 12 per cent, of $1,382.92, instead of 12 per cent, of $1,429, and the judgment will -be modified accordingly.
In this case the policy or certificate was delivered to appellee in Arkansas, and it was not effective until delivered. The statute as to damages and attorney’s fees is therefore applicable.
We do not deem it necessary to set out the instructions, but we have carefully examined the same, and have reached the conclusion that the jury was fairly instructed. All questions of fact were settled by the verdict of the jury, and the jury’s finding- of facts is conclusive here.
The judgment will be modified as above indicated,, and, as so modified, affirmed.
Smith, McLIaney and Butler, JJ., dissent. | [
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Humphreys, J.
This was. a suit brought by appellee against appellant on two acceptances or drafts with bills of lading attached, drawn by appellee on W. IT. Burford for cans shipped by appellee to him for the purpose of canning tomatoes, etc., the payments of which acceptances were guaranteed in ninety days by “Citizens’ Bank” and “The Citizens’ Bank,” in Marion County, which failed before the payment of the drafts and which were taken over by the appellant for the purpose of being liquidated as insolvent concerns.
The record reflects that the cans were shipped by appellee to W. H. Burford and delivered to him upon guarantees of said banks executed on the 26th day of July, 1930, and the 1st day of December, 1930, respectively, through their officers at the time they were going concerns ; that the custom had been for the banks to accommodate their customers by guaranteeing the payment for the cans so they could get and fill them and sell same to the trade in time to take up the drafts or acceptances before they became due, and to enable them, as well, to pay the banks a ¡part, or all, of what they might owe them when they disposed of the tomatoes and other canned products; that Burford was a regular customer of the banks and owed them about $3,000 when the guarantees were made; that the officers of the banks guaranteed payment of the acceptances or drafts, without any written authority from the boards of directors of said banks, but that the boards of directors had turned the business of the banks over to the presidents and the cashiers and knew said officers were hypothecating and pledging the credit of the banks by guaranteeing the payments for the cans and had been conducting the business in this manner for several years.
The trial court rendered a judgment against appellant for the amount of the drafts or acceptances, from which is this appeal.
Appellant contends for a reversal of the judgment on the ground that since the passage of the amending statute of act 252 of the Acts of 1931, to act 113 of the Acts of 1913, that the officers of the banks were without authority to hypothecate the credit of the banks by guaranteeing the payment of said drafts. Under act 113 of the Acts of 1913, this court ruled in the case of Bank of Morrilton v. Skipper, Tucker & Co., 165 Ark. 49, 263 S. W. 54, that the bank had authority to guarantee payment of a debt or to make a contract of guaranty, where same was made in connection with its own business or for its own protection or benefit. This ruling was confirmed in the case of Citizens’ Bank of Booneville v. Clements, 172 Ark. 1023, 291 S. W. 439.
The court found in the instant case that the guaranties were for the benefit of the banks. The evidence detailed above was sufficient to support the finding. The amendatory statute has no application in the instant case because it was not passed until after the guaranties were made.
No error appearing, the judgment is affirmed. | [
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Butler, J.
Gr. Gr. Kennedy brought this action to recover for injuries sustained by reason of a street car belonging to the appellant company coming in contact with his automobile at or near the intersection of 23d and State streets in Little Rock, Arkansas. A trial of the case resulted in a verdict and judgment in his favor, from which is this appeal.
The principal claim made for reversal is that the undisputed evidence establishes negligence on the part of the plaintiff which directly contributed to his injury, and that the trial court should have, at defendant’s request, directed a verdict in its favor.
To make his case-, plaintiff testified in his own behalf and was corroborated by one Bell, who professed to have been an eyewitness to the collision and who described the circumstances attendant thereon. The street car motorman, and some passengers on the car testified on behalf of the defendant, and this testimony is in sharp conflict with the evidence adduced on the part of the plaintiff.
In discussing the plaintiff’s testimony, certain discrepancies in the account he gave of the occurrence are suggested which tend to discredit his testimony, and circumstances are argued which, it is claimed, cast doubt on the testimony of the witness Bell. The matters argued are not properly for our consideration, but were for the jury, and doubtless were presented to, and considered by it. The jury having resolved these questions in favor of the plaintiff, under settled rules we must accept its conclusion as final. The question then is, does the evidence on the part of the plaintiff, viewed in a light most favorable to him, justify us in declaring as a matter of law that it presents no question for the jury, but conclusively shows the failure of the plaintiff under the then existing circumstances to act as an ordinarily prudent person would similarly situated?
To sustain its contention, appellee calls to our attention the cases of Chicago, R. I. & P. Ry. Co. v. Abel, 182 Ark. 651, 32 S. W. (2d) 1059; Fair Oaks Stave Co. v. Shue, 184 Ark. 1041, 44 S. W. (2d) 670; Missouri Pac. Rd. Co. v. Trotter, 184 Ark. 790, 43 S. W. (2d) 762; St. Louis, S. F. R. Co. v. Tidmore, 185 Ark. 177, 47 S. W. (2d) 16, — and insists that the facts of the instant case are so nearly like those of the cases cited as to make it necessary for us to reach an identical conclusion.
In the case first cited, the plaintiff was an employee of the railway company and engaged in interstate commerce. His work, at the time he was injured, required him to be near the line of the railway over which trains were passing to and fro, and it was his duty to watch for the trains and get out of their way. The. work in which he was engaged made a great deal of noise so as to interfere with his hearing the approach of trains. While engaged in work and at a place where, his view was unobstructed for half a mile, he stepped upon the track without looking for the approach of trains and was struck by one passing at that time and was injured. On this state of facts it was held that according to appellee’s own statement he assumed the risk incident upon the performance of his duties without relying upon his own watchfulness to keep “in the clear,” as the rules of the company required, and therefore he was responsible, himself, for his injury.
In the Shue case, next cited, plaintiff and his wife procured a hand car to go on a mission for their own business and pleasure, and were operating the car at night on the log road of the defendant company. They were advised that a tractor with two cars attached to it •was being operated on the road by the company that night and were warned to look out for it. They pro ceeded on their journey without keeping any lookout for the tractor. The court said: “Although advised to look out for this equipment, neither did so, but blindly proceeded into a.collision, which resulted in her (the wife’s) death. ’ ’
In the Trotter case, suprat the injury to Trotter was caused by a passing railroad train as he stepped upon a railroad crossing. It was at night, the headlight of the locomotive was burning, casting a brilliant light down the track, the brightest point being about 700 feet ahead of the engine where it illuminated the track and entire right-of-way with a beam of light approximately 100 feet wide. The plaintiff admitted that he walked upon the track without looking or listening for an approaching train with his vision obscured by a sack which he was carrying upon his shoulder. He failed to observe the light of the approaching' train until it was so near that he could not spring aside and save himself from injury.
In the Tidmore case, supra, the person injured was an experienced workman of the railway company and, at the time of his injury, was engaged in interstate commerce. He admitted that at the place of his work, which was near the track of the railroad company, he was required by the rules of the company to look out for his own safety, and that he was injured because he carelessly got in the way of a moving train. In that case it was held that there was no evidence of any negligence on the part of the crew of the engine, but that the accident-occurred by reason of appellee’s inattention in taking a position sufficiently near the track to cause him to be struck by a moving car, which position it was unnecessary for him to occup} in the performance of his duty.
In the ease at bar the evidence accepted by the jury distinguishes it from the cases above cited, and tends to show that when Kennedy was attempting to turn into 23d Street from State in an automobile driven by himself, a car parked near the corner made it necessary for him to describe a greater arc than usual, which put him upon the track of the street railway; and because of some holes in the pavement he applied his brakes in an effort to lessen the speed of his car and inadvertently “stalled” Ms engine wMle still upon the track. At this time the street car was approaching, and was then about 150 feet away. Kennedy did not attempt to get out of his car, but tried to get it in motion, knowing at the time that he was in some danger. He succeeded in starting his engine, but before he could clear the track the street car struck him. Before this happened and while he was attempting to start his car, observing the inattention of the motorman, he sounded his horn to attract his notice to his predicament.
Invoking the rule that a duty rests upon the driver of an automobile to exercise ordinary care in its operation for his own and the safety of others (Northwestern Cas. & Surety Co. v. Rose, 185 Ark. 263, 46 S. W. (2d) 796), appellant argues that such care would require that appellee should have abandoned his car when he saw the street car 150 feet away approaching, and that the motorman was not keeping a constant lookout ahead; that, therefore, he should not have assumed that the motorman would stop before hitting him. Ark. P. & L. Co. v. Boyd, 188 Ark. 254. In support of this argument we are cited to a number of cases where an occupant of a stalled automobile was held negligent as a matter of law for failure to g*et out of it and reach a place of safety. We do not review these cases, but the general rule which governs them is stated in Va. & S. W. Ry. Co. v. Skinner, 119 Va. 843, 89 S. E. 887, cited in one of these cases; Dick v. Va. E. & P. Co., 158 Va. 77, 163 S. E. 75: “No one can be allowed to shut his eyes to danger in blind reliance upon the unaided care of another without assuming the consequences of the omission of such care.” We do not dissent from this doctrine, but under the facts of the case at bar we think it a question for the jury as to whether or not the plaintiff did this. For we cannot say that the minds of all reasonable persons would agree that appellee failed to act as a man of ordinary prudence under the circumstances. It develops that Kennedy used poor judgment in remaining in his car, but the jury might have justly inferred that he did not rely solely upon the motorman to stop the street car, and that he might reasonably have expected to be able to extricate both him self and the car from the place of danger before the street car reached him; and also that, if he were unable to do this, the motonnan would see his situation in time to keep from running him down.
The general rule by which the conduct of Kennedy is to be measured is stated in Berry on Automobiles, vol. 1 (6th Ed.) p. 165, approved by this court in Ark. P. & L. Co. v. Crooks, 188 Ark. 513, where it is said: “The driver of an automobile or other vehicle stopped for any temporary cause in front of a street car cannot be held guilty of contributory negligence as a matter of law if he does not desert his vehicle, at least until it is reasonably certain that an impact is unavoidable. He has a right to assume that those in charge of the operation of the approaching street car, seeing his predicament, will not recklessly run him down. He has a right to make a reasonable effort to start his vehicle, if it is susceptible of being started, and so save it and its occupants from injury. Whether his acts in so doing or attempting to do were unreasonable and negligent would be a question of fact, which it would be the province of the jury to determine, in view of all of the circumstances of the particular case. ’ ’
As a further ground for reversal, it is argued that the court erred in giving certain instructions to the jury at the request of the plaintiff. We do not deem it necessary to set out these instructions, since it is our opinion that they are clear declarations of well-settled principles supported by the evidence in the case. We do not think that the objections made to these instructions are sound, and there was no error in giving them.
On the whole case we find no reversible error, and the judgment of the trial court is therefore affirmed. | [
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Smith, J.
Mrs. Pierson, the plaintiff below, alleged and offered testimony legally sufficient to establish the fact that she had been invited to ride in and to drive a car owned by a Mr. Shrigley — the defendant below — the steering gear of which was defective, and because of the defect she was unable to control the car, which ran off the road, turning over, and inflicting upon Mrs. Pier-son serious and permanent injuries. Mrs. Pierson drove the car from Clarksville, of which city she and Mr. Shrigley were residents, to Fayetteville, a trip any one would be pleased to take who knew what to expect in the way of scenic beauty. The purpose of the trip was to drive Mrs. Shrigley’s mother and father to Fayetteville and leave, them there to visit another daughter, and Mrs. Shrigley made the fourth member of the party. Mrs. Shrigley and Mrs. Pierson were returning alone, when, according to Mrs. Pierson’s testimony, the steering gear locked, and she lost control of the car, which ran off the road and turned over.
There was testimony to the effect that Mr. Shrigley had been informed by a mechanic who did some repair work on the car that the steering gear was not in good order, and he was advised by the mechanic to have it put in repair, but he neglected and failed to do so. This was denied by Shrigley, and the testimony on his behalf was to the effect that.-the work of the mechanic put the car in good condition, and that he was advised of no defect in the steering gear. The testimony on Shrigley’s behalf was to the further effect that the steering gear was not out of order even after the car had turned over, and that the. accident was caused by a nail which had punctured one of the rear tires.
The cause was submitted to the jury under instructions, to which Shrigley objected and excepted, to the effect that, if he invited Mrs. Pierson to take the trip and drive the car, he was liable for any damages suffered by her by reason of a defect in the steering gear, if lie knew, or, in the exercise of dne care, should have known, of the defect. Instructions were requested by Shrigley to the effect that he would not be liable, even though he had invited Mrs. Pierson to accompany his wife, and the finding was made that the injury to Mrs. Pierson was occasioned by a defective steering gear, unless he knew of the defect.
From a verdict and judgment in favor of Mrs. Pier-son is this appeal. We think the law should have been declared as requested by Shrigley in the respect above stated. The case of Howe v. Little, 182 Ark. 1083, 34 S. W. (2d) 218, was a suit by an invited guest against the owner of a car in which the owner and the guest were riding when the guest was injured. There was some question as to whether the plaintiff was an invited or a self-invited guest, but we adopted the rule — which was said to be the modern rule and the one supported by the weight of authority — that no distinction was to be made as to the kind of a guest, as the duty was identical, whether the guest ivas invited or self-invited.
In discussing the duty owing the guest, it was there said that “the guest takes the automobile and driver as he finds them, ’ ’ and that there was no duty of inspection for defects so far as the guest was concerned. We there quoted from 1 Blashfield, Cyclopedia of Automobile Law, page 967, the following statement of the law: “With respect to the condition of the automobile, the rule is that one invited to ride therein by the owner or driver accepts the machine of the host as he finds it, subject only to the limitation that the driver or host must not set a trap or be guilty of active negligence, contributing to the injury of the guests.”
There appears to have been no other error at the trial, but for the error indicated the judgment must be reversed, and the cause will be remanded for a new trial.
Johnson, C. Jv and Mehaeey, J., dissent. | [
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RITA W. GRUBER, Judge.
|,Appellant Jennifer Batchelor appeals from convictions for driving while intoxicated, first offense, and failure to yield to an emergency vehicle. Appellant’s sole point on appeal is that the trial court erred in denying her motion to suppress. We affirm appellant’s conviction.
On September 9, 2011, appellant was stopped on Interstate 540 in Benton County by Lieutenant Andy Lee. At the time of the traffic stop, Lieutenant Lee was em ployed by the Bentonville Police Department. He testified that he had been commissioned by the Benton County Sheriffs Office as a deputy sheriff and, on the night he stopped appellant, he was working drug interdiction for the county on the interstate. At the time he encountered appellant, he was parked on the shoulder of the interstate with the emergency lights activated while he was concluding a traffic stop. Appellant passed Lieutenant Lee’s car in the lane closest to the shoulder. Lieutenant Lee testified that there was no traffic preventing her from moving 12to the lane farthest away from his car, as required by law, so he pulled her over. He testified that after he initiated the traffic stop, he smelled the odor of alcohol; asked appellant if she had been drinking — to which she replied that she had; performed a field-sobriety test — which appellant failed; and notified the Benton County DWI unit to come and complete the investigation.
Appellant moved to suppress the evidence of her intoxication discovered at the traffic stop because Lieutenant Lee, employed by the City of Bentonville, did not have a letter from the Arkansas State Police allowing him to patrol the interstate. The circuit court denied her motion to suppress and found appellant guilty of driving while intoxicated, first offense, and failure to yield to an emergency vehicle. On appeal, appellant challenges only the court’s denial of her motion to suppress.
"When reviewing the denial of a motion to suppress evidence, the appellate courts conduct a de novo review based on the totality of the circumstances, recognizing that the trial court has a superior opportunity to determine the credibility of witnesses and reversing findings of historical fact only if they are clearly erroneous. Martin v. State, 2013 Ark. App. 110, at 5, 426 S.W.3d 515, 518.
Arkansas law prohibits municipal police officers from patrolling “controlled-access facilities” — which the, parties do not dispute includes Interstate 540 — unless authorized by the director of the Arkansas State Police. Ark.Code Ann. § 12-8-106(h) (Supp.2013). This law does not apply to county sheriffs. And a deputy sheriff possesses all of the powers of, and may perform any of the duties required by law to be performed by, the sheriff.- Ark.Code Ann. L§ 14-15-503 (Repl. 2013).
Appellant argues that Lieutenant Lee was a city police officer and, thus, had no authority to conduct the traffic stop and the evidence should be suppressed. We held in McKim v. State, 2009 Ark. App. 834, 2009 WL 4672733, that a trial court erred in denying a defendant’s motion to suppress where a city pólice officer who conducted a traffic stop on the interstate did not have a letter from the Arkansas State Police authorizing the stop. There is no dispute in this case that Lieutenant Lee did not have a letter from the director of the Arkansas State Police authorizing his activities. The only issue in this case is whether the circuit court’s finding of fact that Lee was acting on behalf of the county when he conducted the traffic stop is clearly erroneous.
Lieutenant Lee testified that on the night of the traffic stop, he was working interdiction on Interstate 540 to locate drugs in vehicles as a deputy sheriff commissioned by the Benton County Sheriffs Department. The State then introduced a Benton County Sheriffs Department identification card showing that Andy Lee was commissioned from January 1, 2011, through December 31, 2012, as a deputy sheriff. He testified that, after discovering that appellant appeared to be intoxicated, he notified Lieutenant Randy Allsup of the Benton County Sheriffs Department. Lieutenant Allsup came to the scene to continue the investigation because, according to Lieutenant Lee, Lieutenant Allsup was specifically working DWI investigations and Lieutenant Lee was working interdiction.
14After conducting a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error, and deferring to the superior position of the circuit court to determine the credibility of witnesses and to resolve evidentiary conflicts, we hold that the court did not clearly err and affirm its decision. Collins v. State, 2014 Ark. App. 574, at 4, 446 S.W.3d 199, 203.
Affirmed.
WYNNE and BROWN, JJ., agree.
. Interstate 540 has been redesignated Interstate 49.
. Unlike here, the officer in McKim did have a letter from the director of the Arkansas State Police authorizing general patrol, but the letter specifically prohibited "selective traffic enforcement or interdiction." 2009 Ark. App. 834, at 2, 2009 WL 4672733. | [
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JIM HANNAH, Chief Justice.
|TThe issues in this appeal involve a pay-if-paid clause in a construction subcontract and the scope of a surety’s obligations under a lien-release bond. Appellant, BCC Construction, LLC, d/b/a Boyd Cor-ley Construction, LLC (“BCC”), and ap-pellee, Sweet’s Contracting, Inc. (“SCI”), entered into a subcontract on August 7, 2008. BCC, as the general contractor, hired SCI to perform excavation work on a Walgreens project in Batesville, Arkansas. The subcontract contained what is commonly known in the construction industry as a pay-if-paid clause. The pay-if-paid clause in this case specified that BCC’s receipt of payment from the project owner for work performed by SCI was an absolute condition precedent to BCC’s obligation to pay SCI for that work. After a dispute arose regarding how much compensation SCI was owed under the subcontract, SCI filed a materialmen’s lien against the Walgreens [2project, and BCC filed a bond in contest of the lien. Appellant, Travelers Casualty & Surety Company (“Travelers”), issued a lien-release bond as surety on behalf of its principal, BCC.
SCI filed suit against BCC and Travelers, seeking recovery against BCC for breach of contract and against both BCC and Travelers under the lien-release bond. The case proceeded to a jury trial in which SCI sought $70,184.38 in damages. At the close of SCI’s case, both BCC and Travelers argued that they were entitled to a directed verdict because SCI failed to prove that it had complied with the terms of the subcontract, that SCI’s evidence of damages was speculative, and that SCI’s claim for the work it performed,for another subcontractor, RAW, LLC, was barred by the statute of frauds. They also argued that they were entitled to a directed verdict pursuant to the pay-if-paid clause contained in the subcontract between BCC and SCI because SCI failed to present any evidence showing that the owner had paid BCC for the work SCI alleged it had performed. In support of their argument, they cited Brown v. Maryland Casualty Co., 246 Ark. 1074, 442 S.W.2d 187 (1969), in which this court held that a conditional-payment clause in a contract created a condition precedent to payment, explaining that “ ‘a provision for the payment of an obligation upon | sthe happening of an event does not become absolute until the happening of the event.’ ” Id. at 1080, 442 S.W.2d at 191 (quoting Mascioni v. I.B. Miller, Inc., 261 N.Y. 1, 184 N.E. 473 (1933)).
Based on our decision in Brown, the circuit court directed a verdict in favor of BCC, ruling that the pay-if-paid clause in the subcontract barred recovery from BCC because there was no evidence that BCC had been paid by the owner for the work SCI alleged it had performed. Accordingly, the circuit court dismissed the claims against BCC with prejudice. The circuit court declined, however, to direct a verdict in favor of Travelers, and the case against Travelers on the lien-release bond was submitted to the jury. The jury reached a verdict in favor of SCI and awarded damages against Travelers in the amount of $25,478.20.
After trial, Travelers filed a motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial on the same grounds as its motion for a directed verdict. SCI filed a motion to alter or amend ruling, requesting that the circuit court reverse its decision to direct a verdict in favor of BCC pursuant to the pay-if-paid clause. The circuit court denied all the posttrial motions.
BCC and SCI also filed motions for attorney’s fees. The circuit court denied BCC’s motion, rejecting BCC’s contention that it was entitled to fees as the prevailing party in the suit between BCC and SCI. The circuit court granted SCI’s motion in its suit against Travelers, and awarded SCI $48,197.45. Travelers and BCC appeal, and SCI cross-appeals. On appeal, Travelers contends that the circuit court erred in denying Travelers’ motion for directed verdict, motion for judgment notwithstanding the verdict, and motion for a new trial because (1) a surety’s liability on a lien-release bond cannot exceed the liability of its principal, (2) there was not substantial evidence for the jury to find that SCI complied with its subcontract with BCC, (3) there was not substantial evidence of SCI’s damages to support the verdict, and (4) SCI did not present evidence of a writing or consideration to support its claim that BCC agreed to be responsible for RAW, LLC’s debt to SCI. Travelers also contends that the circuit court abused its discretion in granting SCI’s motion for attorney’s fees because Travelers’ liability cannot exceed the liability of BCC and because SCI was not entitled to attorney’s fees under the material-men’s lien statute. BCC contends that the circuit court abused its discretion in denying its motion for attorney’s fees because BCC was the prevailing party in its suit against SCI.
On cross-appeal, SCI contends that the circuit court erred in granting a directed verdict for BCC on the pay-if-paid clause. SCI also contends that the circuit court erred in ruling that the subcontract was ambiguous on the issue of fill and in allowing parol evidence. Finally, SCI contends that this court should grant SCI attorney’s fees and costs for both defending the action below and for those incurred in this appeal.
We hold that the circuit court erred in denying Travelers’ motion for directed verdict and that the circuit court did not err in granting BCC’s motion for directed verdict. We reverse the award of attorney’s fees to SCI, and we do not address BCC’s argument concerning attorney’s fees. Accordingly, we affirm in part and reverse in part on direct | .¡appeal, and we affirm in part and reverse in part on cross-appeal.
Many of the issues raised by the parties are intertwined. For clarity and ease of discussion, we first address SCI’s point on cross-appeal that the circuit court erred in granting a directed verdict for BCC on the pay-if-paid clause.
I. Grant of BCC’s Directed-Verdiet Motion
The underlying dispute between BCC and SCI arose pursuant to the pay-if-paid clause in the subcontract.
A typical “pay-if-paid” clause might read: “Contractor’s receipt of payment from the owner is a condition precedent to contractor’s obligation to make payment to the subcontractor; the subcontractor expressly assumes the risk of the owner’s nonpayment and the subcontract price includes this risk.” Under a “pay-if-paid” provision in a construction contract, receipt of payment by the contractor from the owner is an express condition precedent to the contractor’s obligation to pay the subcontractor. A “pay-if-paid” provision in a construction subcontract is meant to shift the risk of the owner’s nonpayment under the subcontract from the contractor to the subcontractor.
Robert F. Carney & Adam Cizek, Payment Provisions in Construction Contracts and Construction Fund Statutes: A Fifty State Survey, 24 Construction Law, 5, 5-6 (2004). The subcontract between BCC and SCI contained the following provisions:
Subcontractor will receive payment from the contractor once the contractor has been paid by the owner. No monies are owed to the subcontractor until BCC has received payment from the owner for the subcontractor’s work.
The parties hereto agree and acknowledge, that as an absolute condition precedent to Progress Payments to the SUBCONTRACTOR [SCI], the CONTRACTOR [BCC] must receive corresponding payment from the OWNER for SUBCONTRACTOR’S [SCI’s] Work. In the event of nonpayment by OWNER, SUBCONTRACTOR’S [SCI’s] remedies are against the OWNER.
[N]o payment from CONTRACTOR [BCC] to SUBCONTRACTOR [SCI] shall be due unless the CONTRACTOR [BCC] receives payment from OWNER for the |fiWork of the SUBCONTRACTOR [SCI]. In the event of nonpayment by OWNER, SUBCONTRACTOR’S [SCI’s] remedies are against the OWNER.
The circuit court directed a verdict in favor of BCC, ruling that the pay-if-paid clause in the subcontract barred recovery from BCC because there was no evidence that BCC had been paid by the owner for the work SCI alleged it had performed. SCI contends that the circuit court should not have considered the affirmative defense of the pay-if-paid clause because BCC failed to plead or argue it under Arkansas Rules of Civil Procedure 8(c) and 9(c) (2014). Generally, in deciding whether the grant of a motion for directed verdict was appropriate, appellate courts review whether there was substantial evidence to support the circuit court’s decision. E.g., Switzer v. Shelter Mut. Ins. Co., 362 Ark. 419, 432, 208 S.W.3d 792, 800 (2005). This particular point on cross-appeal, however, requires us to construe a court rule; therefore, our appellate review is de novo. E.g., Kesai v. Almand, 2011 Ark. 207, at 3, 382 S.W.3d 669, 671.
We hold that the circuit court correctly ruled that the pay-if-paid clause was not an |7affirmative defense that must be specifically pled under Rule 8(c). “The basic rule as developed under the common law is that any issue raised by the plaintiff in the complaint may be countered by a general denial in the answer, but any issue raised in the answer for the first time constitutes a new matter that must be specifically set out by the defendant as an affirmative defense.” Poff v. Brown, 374 Ark. 453, 455, 288 S.W.3d 620, 622 (2008). An affirmative defense must be pled when a defendant admits the material allegations of the complaint but seeks to avoid the effect of such admittance by an affirmative allegation of new matter “avoiding plaintiffs case.” Id., 288 S.W.3d at 622. In this case, SCI asserted in its complaint that BCC had breached the subcontract by failing to do what the subcontract required it to do. BCC answered and denied that it had breached the subcontract and denied that it had failed to do what the subcontract required it to do. BCC never admitted the material allegations of the complaint — that it breached the subcontract— so it was not required to plead an affirmative defense.
SCI next contends that the circuit court’s order granting a directed verdict in favor of BCC should be reversed because the pay-if-paid clause upon which it was based is unenforceable. Specifically, SCI asserts that the pay-if-paid clause cannot be enforced because |8it conflicts with the materialmen’s lien statute. This argument is not preserved for our review because SCI did not make this argument at trial in response to BCC’s motion for directed verdict. See, e.g., Grandjean v. Grandjean, 315 Ark. 620, 621, 869 S.W.2d 709, 709 (1994) (“An appellant may not change the basis for his argument or raise a new argument on appeal; he is limited to what was requested in the trial court.”).
Similarly, three of SCI’s remaining arguments concerning the circuit court’s grant of BCC’s directed-verdict motion are not preserved for our review. SCI contends that the circuit court erred in denying BCC’s motion for directed verdict because (1) the jury should have been allowed to consider whether BCC violated the duty of good faith and fair dealing and whether BCC acted in a manner to frustrate the purpose of the contract, (2) the pay-if-paid clause is contrary to public policy, and (3) this court’s decision in Brown, which upheld a conditional-payment clause, should be overruled. SCI did not raise these issues at trial; rather, SCI raised these issues in a posttrial motion. An objection made for the first time in a post-trial motion is not timely. See, e.g., Cochran v. Bentley, 369 Ark. 159, 176, 251 S.W.3d 253, 266 (2007). Stated another way, an issue must be presented to the circuit court at the earliest opportunity in order to preserve it for appeal. Id., 251 S.W.3d at 266-67. For that reason, a party cannot wait until the outcome of a case to bring an error to the circuit court’s attention. Id., 251 S.W.3d at 267.
We hold that the circuit court did not err in granting BCC’s motion for directed verdict on the pay-if-paid clause. As such, we need not address SCI’s contention that the circuit court erred in ruling that the contract was ambiguous on the issue of fill and in | flallowing parol evidence.
II. Denial of Travelers’ Motion for Directed Verdict, Motion for Judgment Notwithstanding the Verdict, and Motion for New Trial
We now turn to Travelers’ contention on direct appeal that the circuit court erred in denying its motion for directed verdict, motion for judgment notwithstanding the verdict, and motion for a new trial because a surety’s liability on a lien-release bond cannot exceed the liability of its principal. In this case, the circuit court found that, because the subcontract between BCC and SCI contained a pay-if-paid clause and because SCI failed to present evidence that BCC had been paid by the owner, BCC was entitled to a directed verdict under the terms of the subcontract and under the lien-release bond. But the circuit court allowed the action to proceed against Travelers, BCC’s surety, under the lien-release bond. Travelers asserts that the circuit court’s ruling was erroneous because (1) generally, a surety’s liability cannot exceed the liability of its principal, (2) Travelers, as BCC’s surety, was entitled to rely upon the pay-if-paid clause as a defense, and (3) the circuit court’s dismissal of BCC extinguished Travelers’ liability under Arkansas Code Annotated section 18-44-118 (Supp.2013). Typically, this court reviews the circuit court’s denial of a inotion for directed verdict, denial of a motion for judgment notwithstanding the verdict, and denial of a new-trial motion for whether there is substantial evidence to support the jury’s verdict. E.g., Miller Brewing Co. v. Ed Roleson, Jr., Inc., 365 Ark. 38, 43, 223 S.W.3d 806, 811 (2006). Here, |10however, the issues presented are questions of law, and we review questions of law de novo. See, e.g., Gulfco of Louisiana v. Brantley, 2013 Ark. 367, at 11, 430 S.W.3d 7, 13-14.
We begin with the basic principles of surety law. This court has defined a suretyship as a contractual relation whereby one party engages to be answerable for the debt or default of another. See F & M Bldg. P’ship v. Farmers & Merchs. Bank, 316 Ark. 60, 64, 871 S.W.2d 338, 340 (1994); Fausett Builders, Inc. v. Globe Indem. Co., 220 Ark. 301, 304, 247 S.W.2d 469, 471 (1952); see also Hall v. Equitable Sur. Co., 126 Ark. 535, 539, 191 S.W. 32, 34 (1917) (“Where the contract takes the form of ordinary suretyship, the agreement of the surety is that he will do ■ the thing which the principal has undertaken.”); Howard W. Brill & Christian H. Brill, Arkansas Law of Damages § 17:11 (5th ed.2004) (“The surety contract fulfills an obligation that is owed by the principal to a third party.”). Because a surety’s liability is derivative, it ordinarily does not exceed that of the principal, see Travelers Cas. & Sur. Co. of Am. v. Ark. State Highway Comm’n, 353 Ark. 721, 729, 120 S.W.3d 50, 54 (2003), and generally, a surety may invoke all defenses available to the principal, see Restatement (Third) of Suretyship & Guar. § 34 (1996); see also Berman v. Shelby, 93 Ark. 472, 477, 125 S.W. 124, 126 (1910) (recognizing that if a principal has a complete defense to a claim, the surety is discharged). Finally, in a surety-ship, the principal’s contract and the bond or undertaking of the surety are to be construed together as one instrument. F & M, 316 Ark. at 65, 871 S.W.2d at 341.
The bond in this case states as follows:
MECHANIC’S LIEN RELEASE BOND
_LyKNOW ALL MEN BY THESE PRESENTS:
That we, Boyd Corley Construction, LLC (name of principal) and Travelers Casualty and Surety Company of America (name of surety), organized under the laws of the State of Connecticut authorized to transact surety business in the State of Arkansas as Surety, are held and-firmly bound unto Sweet’s Contracting, Inc. (lien claimant) ... herein after known as Claimant in the sum of §116,319.86 DOLLARS lawful money of the United States of America, for the payment of which, well and truly made, we bind ourselves, our heirs, legal representatives, successors and assigns, jointly and severally firmly by these presents;
Whereas, the Principal entered into a contract with Claimant under which Claimant agreed to perform construction services (state terms of contract) at the Walgreens — Batesville, AR project;
Whereas, Claimant has filed a lien in the amount of $73,171.93 against that property as security for alleged labor and materials in connection with construction services (nature of claimant’s job) and that claim was recorded at Book (or Reel) 2009, Page (or image) 769, Official Records of Independence County, Arkansas;
Whereas, the principals dispute the correctness of this claim; and
Whereas, that lien is released in accordance with Section 18-44-101 et seq. of the Civil Code of the State of Arkansas;
Now, therefore, if the principal shall pay or cause to be paid any sum which the Claimant may recover on the claim together with the Claimant’s cost of suit in the action in the event of recovery of the suit, then this obligation shall be voided; otherwise, it shall remain in full force and effect.
The bond references the subcontract between BCC and SCI. Under the terms of the subcontract, BCC and SCI agreed that BCC would pay SCI for performance of “the Work,” if the owner paid BCC for SCI’s performance of the Work. Travelers’ obligation |19on the bond was coextensive with and measured by the promises of BCC to SCI contained in the subcontract. See Fausett Builders, 220 Ark. at 306, 247 S.W.2d at 472. In other words, Travelers, by the bond, bound itself only to the performance of the acts that BCC had promised to perform as part of the subcontract. See id., 247 S.W.2d at 472. BCC agreed in the subcontract to pay SCI if the owner paid BCC for SCI’s work. Because the owner did not pay BCC for SCI’s work, BCC was entitled to invoke the pay-if-paid clause as a defense. Travelers, as BCC’s surety, was entitled to invoke the same defense.
Still, SCI contends that, even if the pay-if-paid clause allowed BCC to avoid liability, the clause does not absolve Travelers because Travelers had an independent obligation to SCI under the surety bond issued pursuant to the materialmen’s lien statute. We disagree.
Here, SCI filed a materialmen’s lien against the Walgreens project, BCC filed a bond in contest of the lien, and Travelers issued a lien-release bond as surety on behalf of BCC. If the bond is filed and approved by the circuit clerk, and the claimant, after notice, does not question its sufficiency or form, the lien is discharged and the claimant shall have recourse only against the principal and surety upon the bond. See Calton Props., Inc. v. Ken’s Discount Bldg. Materials, Inc., 282 Ark. 521, 522-23, 669 S.W.2d 469, 470 (1984); Ark.Code Ann. § 18-44-118(b). If an action to enforce the lien is filed within the time prescribed for enforcement of a lien against the surety, “the surety shall be liable in like manner as the | ^principal.” Id. § 18 — 14—118(c)(2) (emphasis added). Thus, consistent with well-settled tenets of surety law, under the statute, Travelers, the surety, was liable in like manner as BCC, the principal. Because BCC was not liable, then it follows that Travelers was not liable. We hold that the circuit court erred in denying Travelers’ motion for directed verdict.
III. Attorney’s Fees
Because we have concluded that the circuit court erred in denying Travelers’ motion for directed verdict, SCI is no longer the prevailing party and is not entitled to attorney’s fees under either the subcontract or Arkansas Code Annotated section 16-22-308 (Repl.1999), the attorney-fee statute, see, e.g., Riceland Foods, Inc., 2009 Ark. 520, at 14-15, 357 S.W.3d 434, 443, and it is not the “successful party” entitled to attorney’s fees under Arkansas Code Annotated section 18-44-128 (Supp. 2013) of the materialmen’s lien statute. Accordingly, we reverse the award of attorney’s fees to SCI.
Finally, we turn to BCC’s argument on attorney’s fees. Following the circuit court’s grant of a directed verdict in favor of BCC, BCC filed a motion for attorney’s fees, arguing that, pursuant to both the attorney-fee statute and the terms of the subcontract, BCC was entitled to attorney’s fees and costs as the prevailing party on SCI’s breach-of-contract claim. In its order denying BCC’s motion for attorney’s fees, the circuit court found that BCC was not the prevailing party and, that, “even if BCC was the prevailing party, the court would not award fees to it because of its failure to assert the ‘pay-if-paid’ clause early in the process which caused them to run up a bunch of attorney’s fees; and that it would be unconscionable to reward it for that conduct.” BCC challenges the ruling that it was not the prevailing party, l^but it does not challenge the alternative, independent ruling that it should not be awarded attorney’s fees due to its conduct in the case. When a circuit court bases its decision on two independent grounds and the appellant challenges only one of those grounds on appeal, this court will affirm without addressing either. E.g., Coleman v. Regions Bank, 364 Ark. 59, 64, 216 S.W.3d 569, 573 (2005).
Affirmed in part, reversed in part on direct appeal; affirmed in part, reversed in part on cross-appeal.
BAKER and HART, JJ., dissent.
. At trial, stipulations of the parties were read to the jury:
The original subcontract price between BCC, the general contractor for the project, and SCI, a subcontractor, was in the amount of $276,419. In addition, the parties agree that the amount of $13,160 for rock excavation was approved and added to the contract price for a total agreed upon amount of $289,579.
SCI has been paid a total of $236,675.90 by BCC. BCC approved in [sic] SCI did 830 cubic yards of undercutting at a price of $16.48 per yard for a total of $13,648.40 of undercutting. The parties are in disagreement as to whether this amount should be added to the contract price.
. There is no dispute that BCC has not been fully paid by the owner for SCI's work.
. This appeal was originally filed in the court of appeals. We granted SCI's motion to transfer the appeal to this court pursuant to Arkansas Supreme Court Rule 1 — 2(d) (2014).
. At trial, Chuck Sweet, President of SCI, testified that he knew the pay-if-paid clause was in the subcontract and that he agreed to that provision when he signed the subcontract.
. Although SCI contends on appeal that, pursuant to both Rule 8(c) and 9(c), BCC waived its right to raise the pay-if-paid clause as a defense, at trial, SCI’s argument was based solely on Rule 8(c). SCI did not argue at trial, as it does now, that BCC was required to plead the pay-if-paid clause as an unfulfilled condition precedent under Rule 9(c). A party is bound by the nature and scope of the arguments made at trial and may not enlarge or change those grounds on appeal. See, e.g., Yant v. Woods, 353 Ark. 786, 794, 120 S.W.3d 574, 579 (2003). A challenge to the pay-if-paid clause under Rule 9(c) is not preserved for our review.
. Under Rule 8(c), "an affirmative defense must be set forth in the defendant’s responsive pleading.” Poff v. Brown, 374 Ark. 453, 454, 288 S.W.3d 620, 622 (2008). Although Rule 8(c) lists a number of affirmative defenses, "the list is not exhaustive and includes 'any matter constituting an avoidance or affirmative defense.'" Id., 188 S.W.3d at 622 (quoting Ark. R. Civ. P. 8(c)). Defenses under Rule 8(c) must be specifically pled to be considered by the circuit court, and the failure to plead an affirmative defense can result in the waiver and exclusion of the defense from the case. See, e.g., Felton v. Rebsamen Med. Ctr., 373 Ark. 472, 480, 284 S.W.3d 486, 492 (2008).
. We note that Travelers renewed its directed-verdict motion, on all grounds, at the close of all evidence.
. Pursuant to Article 3 of the subcontract, the Work “comprises the construction required by the Contract Documents and includes all labor necessary to produce such construction, and all materials and equipment supervision incorporated in such construction.” Generally, SCI was to "[p]rovide labor, material, and equipment to perform the demolition, excavation, erosion control, storm drainage, and sanitary sewer main scope of work in accor dance with the contract documents outlined in accordance with the contract documents.” | [
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S. W. Williams, Special Judge.
There are two cases-—Nos. 104 and 105 — pending between the same parties, which have been submitted by counsel on the same briefs,, and as the two cases are closely related, and very largely dependent alike upon the same city ordinances and laws,, and must be determined upon the solution of similar questions raised in each, they may well be determined together.
They are both proceedings in the Phillips circuit court,, in which the appellant sought to enforce, by mandamus-against the city of Helena, certain rights claimed by compelling it to issue certain bonds to him. In No. 104,. which was brought more than a year before No. 105, he demanded forty-five thousand dollars in bonds, and in the-latter suit he demanded one hundred thousand dollars in. bonds.
In the first case, it appears that the city of Helena, by an ordinance, dated May 26, 1866, without any authority of law whatever, ordered an election for subscriptions of fifty thousand dollars to the Helena and Iron Mountain Railroad. The proof discloses the fact that this election was a special one and irregularly held, not only as not being authorized, by any statute, but the vote was taken when the people were-not called upon to turn out and vote for any other purpose..
This railroad company had been chartered by special act: of the legislature, approved December 31, 1860, to run-from Helena to Iron Mountain or northern boundary of the-state. Its franchises were granted for ninety-nine years.
By the sixteenth section of the charter, the company was-required to complete its road in fifteen years from date of' the act. By an ordinance of twenty-fifth January, 1866,. the mayor of Helena was. authorized to subscribe fifty thousand dollars payable in bonds of the city, to the capital stock of the company, which as the testimony of Dr. G-rant,. the mayor at that time, shows was done and was an unconditional subscription, made at Wittsburg in 1866. ,
On the sixth day of February, 1867, an act of the legislature of Arkansas became a law, the second section of which reads : “Sec. 2. Be it further enacted that, if the city of Helena has or may hereafter vote to take stock in the Iron Mountain and Helena Railroad, or any other road beginning or terminating at said city, the mayor, by the consent of the council, may issue the coupon bonds of the city.”
In the view we take of this case, it is not material to decide whether the vote of the city of Helena, in this act means a popular vote, or merely the vote of the municipal government. It is evident from the whole act that its true meaning, though vaguely expressed, was that bonds were to be issued to the railway to whom bonds were voted, and as-it appears in this case, that there was a vote of Helena of both kinds. We proceed to other questions in the case; for it is claimed and proven that an. election was held before the passage of the act, at which the question had been submitted and voted. This is admitted in the answer, but it is there claimed that the subscription was never in fact made, but the proof abundantly establishes the contrary.
On the seventh day of March, 1870, by an ordinance of the city council of Helena, the mayor was authorized and empowered to issue and deliver to the Iron Mountain and Helena Railroad Company fifty bonds of the city of Helena, of one thousand dollars each, payable ten years after date, bearing interest at eight per cent, per annum, in payment of stock subscribed by said city, whenever ten miles of said • road commencing at that city were completed, or whenever a contract should be entered into for the building of said ten ■miles, which should be satisfactory to the mayor and aider-men of Helena. In some transaction five of these bonds were afterwards delivered. The proof discloses frequent applications by the railroad company for the issue of the balance of these bonds on .the claim that the ten miles of road were under contract for construction. But the city council repeatedly refused to comply, and were not satisfied •that the contracts would result in completion, and the sequel fully vindicated their judgment. This ordinance of 1870 was the first ordinance passed under the act of 1867. In the view we take of this case, it is unnecessary for us to determine whether this ordinance was necessary to give effect to the subscription of 1866. It is proven and admitted that this ordinance and subscription was made in lieu of that of 1866, or as a modification of it, and this action of the city council was accepted by the railroad company, and both parties ever acted upon this ordinance, and the plaintiff’s order for the bonds recites the conditions of this ordinance, and this suit is based on it. We regard it as clear that-the ordinance of 1866 was waived, and the contract novated by this ordinance of 1870, and the action of the company under it, and if it were not so, it is admitted here that the subscription of 1866 is barred by limitation.
On. the fifth day of January, 1871, the mayor was authorized and empowered by another ordinance to make additional subscriptions to the company of one hundred thous- and dollars, payable in bonds running twenty yeai’S, bearing eight per cent, interest, to be delivered whenever said railroad should be completed from said city of Helena to the junction of said road with the Memphis and Little Rock Railway in St. Francis county; by the provisions of the .•same ordinance this proposition was to be snbmitted to a •vote of the people of Helena, upon twenty days’ notice to be previously given of the time, etc., of the election. The •issue of these bonds was demanded in ease No. 105.
It is admitted in the pleading in 105, that this election was held on the nineteenth day of December, 1871, but it is contended by the appellee that there was fraud and irregularity in the election, and that it was a special election. In the ordinances and proceedings of the city council afterwards, in reference to this matter, it was admitted that the proposition was carried almost unanimously at this election. There is nothing in the act of 1867 which required the city to submit the proposition at a general election, and .no fraud or irregularity is proven.
This subscription of one hundred thousand dollars was made conditionally from the beginning. The city of Helena contends here that the first subscriptions of fifty thousand dollars exhausted the powers given under the act ■of 1867. We do not so construe the act.
On the twenty-third of September, 1874, the city council passed an ordinance which recited these two conditional ¡subscriptions as above stated, and provided that the mayor •should sign and issue forty-five bonds of the city7- of one ■thousand dollars each, payable ten years after date, bearing •eight per cent, interest per annum, payable semi-annually, ■on the first days of April and October of each year, and also •one hundred bonds for one thousand dollars each, payable twenty years after date, bearing eight per cent, interest, payable on the first days of January and July. It was further provided by said ordinance, that the bonds when prepared, were to be placed in the hands of David B. .McKenzie, who was to hold them as a trustee, in trust, to •deliver them to the railroad company as follows: The vforty-five ten year bonds were to be delivered when ten •miles of the railroad should be completed, commencing at Helena, and should be ready for transporting freight and passengers; and the one hundred twenty year bonds were ■to be delivered when the road should be completed from Helena to the junction- of the said road with the Memphis; and Little Rook road in St. Francis county, on or before the first day of January, 1876. This condition of time' applied to both classes of the bonds, and were so understood by the railroad company and the city at the time, and in all future [transactions in reference to the subject. On the eleventh of November, 1875, the city council, at the request of the railroad company, extended the time for complying with these conditions to the first of January, 1877, at the same time and by request of the company upon the-representation that a part of the time having already run on the bonds in McKenzie’s hands, the forty-five ten year-bonds were extended so as to run to twenty years. At the like request of the company, on the alleged ground that they could be “placed” easier if a longer time and for smaller sums, it was provided that the new bonds, which: were to be for five hundred dollars each, in all ninety bonds, running twenty years, were substituted for the-forty-five bonds for one thousand each in McKenzie’s, hands. All these changes were acquiesced in by the road, and were a part of the proceedings in which further time of' one year was given.
After the first of January, 1877, it appears that the conditions of the subscriptions were not perfoi’med, and by resolutions of the city council these bonds were all directed to be burnt, and were so destroyed, and the city, after the-first of January, 1877, took no part as stockholders of the-road, and disclaimed all interest in or liability to the road.
It is averred in the petition in case No. 104, by the-plaintiff, that on or about October, 1880, the ten miles, from Helena, northwest, were completed, commencing at the city of Helena, and that it was ready for transporting-freight and passengers, that for six months before that time the railroad had been transporting passengers to Marianna on its own line, and from thence over a part of another road, for eight miles, to Helena, and that for six months prior to bringing suit, No. 104, in May of 1881, the road had been running from Helena to Marianna, a distance of twenty-six miles, and was in process of rapid completion to Forrest City. These allegations were substantially proved, ■■and we take the time of completion of the ten miles of road required in the contract of subscription set out in case No. 104 for forty-five thousand dollars of bonds, as October, 1880.
This petition admits the conditional character of the subscription, and the mandamus for the bonds is claimed on the ground of compliance on the part of the railroad company with it. Incase 105, which sought to compel the issue of the one hundred thousand dollars above referred to, and it is averred in the petition by plaintiff in this case, that the road was completed to the junction with the Memphis and Little Rock Railroad, in St. Francis county, qn or .about the thirty-fh’st day of December, 1881. The petition in this case was filed January 13, 1882. It is proved that .about the last day of December, 1881, the road was completed as stated, and that trains have run over it to the junction with the Memphis and Little Rock Railroad at Forrest City.
On the thirtieth day of April, 1881, the railroad company, by its president, gave Jacks an order, which was approved by the board of directors by a resolution dated 'May 7, 1881, whereby the assignment previously made by 'the president of the road for the bonds was satisfied. The •order for the forty-five thousand dollars of bonds is in these, words : “To the mayor and council of the city of Helena. You will please deliver to Dr. J. M. Jacks or order forty-five thousand dollars in the bonds of the city of Helena, •due the Iron Mountain and Helena Railroad Company, when ten miles of the road was completed, or a contract satisfactory to the mayor and city council had been entered into.” Jacks presented this order to the city council and demanded the bonds in a petition which was refused, and he brought suit, No, 104, to compel the city by mandamus. •
The defendant, the city, answered, setting up sundry defences. All of those which are maternal are common to-both cases. In his petition, Jacks sets out all the-ordinances and resolutions above referred to, so far as they apply to the subscription of fifty thousand dollars of bonds. There was much oral testimony at the hearing; and the-court below denied the petition. Jacks moved for new trial, filed a bill of exceptions and appealed.
In case No. 105, Jacks set nut a similar order on the city, made and approved in the same manner and at the-same time as the other order, which requested the city to* deliver the one hundred thosand dollars of bonds to be delivered when the road should be completed to the junction, which order recites the condition of the subscription,, and in its form is recognized the fact that the road was not at its date completed. ’ The city having refused to issue these bonds, Jacks filed his petition on the thirteenth day of January, 1882, in the circuit court of Phillips county, to* compel the issuance of them by mandamus. This case took substantially the same course, and shared the fate of number 104.
The substantial questions raised by the pleadings and: evidence are, that the appellee contends first that, under the-constitution of 1874-, no interest bearing indebtedness can be issued by any city except to pay indebtedness existing at a(j0p{j0n 0f it, and that as the charter limited the time,, within which the road should be completed, to fifteen years, and as the road company procured an extension of this time by the legislature, after the adoption of that constitution, therefore they were brought under its provisions as to all things, and drew after them under it, the city of Helena and her contracts. As the legislature chose to- relieve the- road from a cause of forfeiture of charter, instead of enforcing it by quo warranto, that would not destroy or impair existing contracts unless it was made a condition of the relief and was accepted.
It is next claimed by appellee in her answer, that Helena had no power under the act of 1867 to make a conditional . . tit subscription, but the power was to make an absolute one, and that this was barred by limitation.
As to the absolute subscription of 1866, of fifty thousand dollars, that is clearly barred, and is out of the case unless the ordinance of March, 1870, cures it by pi’oviding for a conditional renewal of it. This the appellant’s counsel' admits. As the greater includes the less, we think the power to subscribe conditionally was given by this act. We cannot see anything in the charter of the company or the act of 1867 to forbid a conditional subscription under such charter, and under permissive legislation like this, it has often been decided that a conditional subscription is good-such as this, that the road should run by a certain town, or should be built on a certain route and the like, and these-when so intended and so expressed become conditions precedent, to which the ordinary rules governing contracts apply ; that the conditions precedent must be complied with before any binding calls can be made. Everything,, which by the express provisions of the charter, or the general-laws of the state, or when the thing is required to be done, or which is required by the terms of the contract of subscription before payment, becomes a condition precedent and must be performed before calls shall be made-, and is an important element in the consideration in the agreement to take stock in the company, it should ordinarily be regarded as a condition precedent. 1 Redfidd on Railways,, sec. V, No. 51, p. 171, and notes and authorities sited.
But while we hold that this subscription was not absolute, and therefore not barred by lapse of time,, we holdy under the facts and circumstances of this case, that compliance on the part of the company with the condition must have taken place within a reasonable time — the general rules applicable to all contracts applies as well to conditional subscription of stock. See 1st Redfield on Railways, sec. IX, Xo. 55, p. 188; Vicksburg, Sherman and Texas Railway v. McKean, 12 La. Ann.
We find, as to both subscriptions, that nearly eleven years .after the passage of the ordinances under which they were made, had elapsed before the work required was done — a period longer than the bonds were given to run to maturity under the first ordinance, and more than half the period under the second,
In view of the condition of Arkansas as to projected railroads in 1866 until 1876, in view of the importance to the trade, well being, and even to the very existence of towns and cities in this state, at the date of these subscriptions, .and the anxiety manifested by the city to have an early completion of this road, so as to connect her with the people ■■above her on Crowley’s Ridge before she lost their trade, we cannot regard this long delay as reasonable, or that there is here a fair and equitable compliance with the terms •of the contract. Here we have no bonds in innocent hands. It is shown that the work was done under contracts made after Helena had disavowed her liability, and burnt the bonds after full notice, and after nearly' a year’s extension of time beyond that which she had first set, and we attach great weight to the fact in this case that both parties recognized the conditional character of the subscription, and that the road not only acquiesced in the fixing of time but asked and procured its extension, getting at the same time altered and favorable changes as to the size and time of maturity of these bonds. Jacks was, during all this period, a citizen of Helena, for many years during the occurring of these transactions, a director of the road. His own deposi tion discloses the fact, as does all the proof, that at the time he took these orders, he was fully cognizant of all the facts, and especially knew that Helena had declared the subscription contract at an end, several years before the work was done or commenced.
Under all the circumstances of this case, the impression left on us, is that these suits are merely speculative, and that these subscriptions were really no loans of 'credit upon which the road was built. We do not think at any rate that there is in either of these cases, such a clear right in Jacks, and a duty resting upon Helena, as asks for the interposition of this extraordinary remedy.
Let the judgments be affirmed.
Hon. W. W. Smith, J., did not sit in this case. | [
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OPINION.
The theory of the defendants that Gates continued to be the creditor of McNeil, after receiving from Meyer the-amount of his debt, is not readily comprehended and is besides totally irreconcilable with the facts proved. If it was true, then it would seem to follow- that Meyer has been lending money to Gates at an usurious rate of interest. For the constitution and laws in force when this transaction was had, unlike those under which Gates and McNeil contracted, avoid all contracts that are tainted by usury,, and the lender can recover neither principal nor interest. But we are satisfied that the transaction between Gates and Meyer is not a loan, but a sale of the debt due by McNeil. The full amount of principal and interest to that date was-paid. Gates made no note or other promise in writing to-refund. The papers were surrendered to Meyer, and he thenceforward received whatever McNeil had to pay, controlled the collection of the debt and conducted all negotiations relating thereto.
On another point also the testimony is very persuasive. 'Meyer and not Gates bought the land at the trustee’s sale. It was Meyer who managed the whole affair, and employed counsel to conduct the sale. No moneys passed, and Gates ■very soon afterward quit-claimed to Meyer. And it was 'Meyer who made the agreement with McNeil for redemption.
Now, the dealings of a trustee with the trust property , . . „ . _ J ■are narrowly scrutinized by courts of equity. If impugned, J J l j i. © 7 they cannot stand unless characterized by the utmost good ■faith and candor. And the burden is upon the trustee to -show their entire fairness. In particular, it is an inflexible rule in these courts that a trustee to sell for others cannot, •either directly or indirectly, purchase for his own bentit. In Adams’ Doctrine of Equity, 60, it is said : “ The most •obvious instance of the abuse of a fiduciary character is -where a trustee for sale or purchase attempts to buy from •or sell to himself. The permitting of such a transaction to •stand, however honest it might be in the particular case, would destroy all security for the conduct of the trustee. ” See also Sto. Eq. Jur., secs. 321—2; Lenox v. Notrebe, Hempstead’s Rep., 151; Brittin v. Hanly, 20 Ark., 381; Imboden v. Hunter 23 Ark,. 622.
In such cases there is a conflict of duty and of interest. -As trustee it is his duty to sell for the highest price that •canbe obtained, while as purchaser his interest is to buy .as cheaply as possible.
McNeil may set aside the sale of the trustee to himself, if he has not confinnedit with full knowledge of the facts. But it appears that he did acquiesce in the sale, stipulating •only for the privilege of redeeming.
Here again the decided preponderance of the testimony is that Meyer, on the day of sale and before, agreed that McNeil might redeem within twelve months upon payment •of a sum of money equal to that for which the land should .-sell and interest at the rate of 10 per cent, per annum. ^ objected that a parol agreement of this sort is void by the statute of frauds ; certainly it does not fall within, sixth clause of sec. 2951 of Gantt’s Digest, because* eyen agreement antedated the sale, it might have been performed within the year. Brown on Statute of Frauds, sec. 274, et seq. Nor is it entirely clear that it was such a contract for the sale of lands, or any interest in or concerning them, as is required by the fourth clause to be in writing. In Griffin v. Coffee, 9 B. Mon., 452, where land sold under execution was subject to redemption, for a limited time, the Court of Appeals of Kentucky decided that the time might be extended by parol contract without interfering with the statute.
Waiving this question, the case falls within the principle of Trapnall v. Brown, 19 Ark., 39, that it would be a. fraud in a purchaser, who has obtained property at a price greatly below its value by means of a verbal agreement, to. keep the property in violation of the agreement.
Reversed, and remanded with directions to the court below to enter up a decree that upon the payment into court of $346.70, with interest at 10 per cent, per annum from the third day of March, 1879, to the twentieth day of January* 1880, the plaintiff be permitted to redeem, and if the money is not paid in, to set aside the trustee’s sale and order a resale, the property to be set up at Meyer’s bid. The court, will make the necessary orders for setting aside deeds, re-conveyance or divesting title out of the defendants, and theappellees are to pay all costs of both courts. | [
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Eakin, J.
Appellant brought this suit in equity to fore•close a deed of trust, alleged to have been executed by Theodore B. Mills and his wife, to secure the payment to ■complainant of a note for $2,000. The trustee is also made ■a party. The grounds of the suit, in short, are that Mills ■and wife had executed a note to E. W. Parker & Co. on the twenty-second of August, 1876, for the sum of $2,000, payable with interest, at six months, and, to secure it, had .given a deed of trust upon a certain bouse and lot in Little Rock, the property of the wife. That Parker & Co., having demanded payment, the defendants procured the money from complainant Donahue to take up the note, and gave him their joint promissory note for the same amount, bearing interest; and at the same time executed to a trustee a deed of trust on the same property to secure it. Both notes and both deeds of trust are exhibited, which are alleged to have been duly executed and acknowledged by Mills and wife. There is a prayer for foreclosure of the last trust deed ; and •also by supplemental or amended bill, filed after answer, a prayer that, if the second deed of trust should be held invalid for defect or irregularity, the complainant may besubrogated to the rights of the beneficiary under the first deed. There was due service on all the parties, and, after-pleadings and proof, the chancellor on hearing held the-second deed of trust void as to Mrs. Mills for want of due execution and acknowledgment; and that the first deed of trust had been satisfied so that complainant was not entitled to subrogation. All relief, directly against her, was refused. A personal decree, however, was rendered against the husband for the debt, and it was further held that he was entitled to curtesy in the property, now inchoate, but subject to the lien of the trust. An order for the sale of thiscurtesy was made, to convey an interest to vest in the purchaser on the death of the wife, in case the husband should survive, -and to continue during his life. Donahue appealed,, and Mrs. Mills on her part took a cross-appeal on account of the embarrassment which the execution of the decree-would create in her power to dispose of the property - Mills, the husband, acquiesces.
Amongst other defenses that of usury was set up. Of that it is enough to say that it was sustained by no proof.
The material grounds of her defense were that the property belonged to her separately; that she did not execute the first deed voluntarily, but was led and impelled thereto-by the fraud and undue influence of her husband. As to-the second note she denied that she executed it at all. She admitted that she signed the second deed of trust, but. alleged that it was by the compulsion and undue influence-of her husband, who used violent language, and threatened the abandonment of her and her children unless she should comply. She denied that, in the absence of her husband, she had acknowledged to the notary, who made the certificate that she had executed the trust deed voluntarily, but alleged that she had declared to him in the presence of her husband and other members of the family that, although she- had signed it, she had done so under compulsion and undue influence.
The principal issue in the case is the validity of her c 1 J acknowledgment of the second trust deed. The of the notary is in full as follows :
“State oe Arkansas, )
County oe Pulaski. )
“Be it remembered, that on tbe nineteenth day of May, 1877, in the county aforesaid, before me, J. L. Bay, a notary public, in and for said county, personally appeared Theodore B. Mills and Hannah A. Mills, his wife, grantors in the above deed of conveyance, of full age, to me well known, who acknowledged that he had voluntarily executed and delivered the same for the purposes and considerations mentioned, and desired the same to be so certified.
“And I do further certify that on this day voluntarily appeared before me --- - , to me well known as the-person whose name appears upon the within and foregoing-deed, and in the absence —:---— said husband declared that--had of her own free will executed the foregoing deed for the purposes therein contained and set forth, and that she relinquishes her dower in and to the-property conveyed freely and without compulsion or undue influence of her husband. Given under my hand and seal,”' etc. [Signed by the notary.]
It is evident that the blanks, which probably were left inadvertently in the use of printed forms, make no obscurity. Only two names were on the deed — one male and one female — Theodore B. and his wife Hannah Mills. They both appeared before the notary. He had certified the husband’s acknowledgment. The following one, using feminine pronouns and referring to the name signed to the deed, could by no construction be made to apply to any other person than his wife. Upon its face the certificate2. is sufficient. Is it conclusive ? If not, has it been come by proof? These are the vital questions, for it may be said in passing that, if there be a proper acknowledgment, no fraud nor undue influence actually exercised over the wife by the husband can vitiate her conveyance if the grantee be no party to the improper influence and has no knowledge of it.
It is now the settled doctrine of this court, as laid down in t-he opinion by Chief Justice English, in Meyer v. Gos-sett, and we still think the only safe doctrine, that whilst a wife may, against all the world, show that she never made any acknowledgment at all, and that the certificate is either a forgery or an entire fabrication of the officer, yet if she has actually made some kind of acknowledgment before an officer qualified to take it, his certificate will be conclusive as to the terms of the acknowledgment, and the concomitant circumstances, in favor of all persons, who themselves innocent of fraud, or of collusion to deceive or influence her, have taken the instrument on the faith of the certificate. 38 Ark., 377. The doctrine rests upon public policy. Whilst she, as all other persons are, will be protected against a mere foi’gery, or the fraudulent machinations of those persons, or their agents, who seek to derive a benefit from their dishonesty; yet if she does appear before the officer and make any acknowledgment with regard to the instrument, he is authorized to give assurance by his certificate, to all innocent persons, of what the terms of the acknowledgment were, and of the fact that it was made on privy examination. To open any wider door for proof would put a vast amount of property adrift. The law pre■scibes no set terms in which acknowledgments must be formulated. They are orally made. The officer must judge of their meaning and effect. Manner and jesture even, may aid him in that, and he must judge whether the husband is far enough away, to enable him to certify that the examination was privy. Obviously it would not do to •allow the wife herself, or any bystanders, to show, in opposition to the certificate, and to the rights of innocent persons relying upon it, that the language properly construed did not amount to a negation of undue influence, or confess free and voluntary action ; or that her husband was actually so close at hand as to be able to influence her representations or responses. Human memory is too unreliable for that, even if there were not still greater dangers from human caprice, and the bias of human interests. The public must be reasonably protected in the confidence which it is compelled to extend to official action.
-Mrs. Mills in her answer admits that she signed the deed of trust to Reeve, the one now in question, but says she ■executed it under threats of desertion, and the pressure of hai’sh and offensive language. She was well advised of its purport and effect, for she says she first refused to sign it, because the property was her own, and all the house they had for herself and their two minor children, and she was unwilling to part with, or encumber it. She says that Mills brought the notary to their residence to take her acknowledgment, but denies that in his presence and in the absence ■of her husband, she declared that she had executed it for the purposes therein contained, of her own free will, and without compulsion or undue influence of her husband; but ■says that she did declare, in the presence of the notary and her husband, and “other members of the family,” that, ■although she had signed the trust deed, she had not, and would not do so voluntarily and freely, but had done so under compulsion and undue influence of her husband against her own free will and consent.
In her deposition, which being in her own behalf, was properly admitted, she says, with regard to this second trust deed, that she signed it in the presence of the notary but did not know what it was about. It occurred in a room about twenty feet square. When she signed, she says, Mr.. Mills stood near the desk, and there were no persons in the-room but herself, Mr. Mills and the notary, and that her husband remained in the room until the notary left. She-said she had no conversation whatever with the notary in the absence of her husband and beyond his hearing; that he-did not read the trust deed to. her., nor did she read it herself. She does not think any explanation of its contents was made to her by anyone. She says she knew nothing of the said trust deed until the month of June, 1879 ; that her husband was in the real estate business, in the course of which it was often necessary for her to acknowledge conveyances .
The notary, with regard to the trust deed in suit, says, that he took the acknowledgment of Mrs. Mills in one. end of the long parlor. The husband was in the room, in the-other end, in a corner, with his back turned. Pie does not recollect that Mrs..Mills stated to him whether.or not she-executed the instrument freely and without compulsion, but. says it was alwaj^s his custom to put the usual questions-required by law, • and that he has no reason to believe that he made an exception in this case. He remembers no> irregularity connected with the acknowledgment, nor any objection made by her. She came into the room with her husband. The notary observed pothing like compulsion, and does not remember her saying anything except “yes” or “no” in response to his enquiries. He does not remember whether Mrs. Mills signed in his presence or not.
We lay little stress upon the apparent discrepancy between the answer and the deposition of Mrs. Mills. The-answer was doubtless drawn by her attorney, and he, in drawing it, and she, in adopting it, might well have confused the time of events and conversations. It is quite probable indeed that Mrs. Mills, with her husband, and in the presence of her children, had earnestly protested and! pleaded against the encumbrance of the house ; and for the ¡protection of the last shelter for herself and children, against -the desertion which she foresaw might come, and which did •after all. Her deposition must be taken as her deliberate statement of the occurrences at the time of the alleged .acknowledgment.
Doubtless, undue influence, of the most reprehensible •character, had been brought to bear upon this unfortunate wife — such as no ordinary woman would be able to resist. .But the preponderence of the proof, in connection with the notary’s certificate, is still in favor of the supposition that ■either by words or gesture she gave the notary to understand that she assented to all that the law required to make •it valid. It is indisputable that she acknowledged the signature, the contest being only as to the expression of her free will. The husband was in the room, but it was a matter for the notary to determine, in the first instance, whether- or not he was near enough to be considered present. This court held in Meyer v. Gossett, supra, that it was not necessary for the husband to be out of sight. That was a ¡stronger case of the presence of the husband than this. The wife’s acknowledgment was made on horseback, and the husband was near her on another horse only six or eight feet away. In that case, too, the wife denied positively that the officer asked her any questions, or that she made -any acknowledgment, and so testified. This court, in that case, sustained the deed on the grounds that neither the trustee nor the beneficiary had any knowledge of, or par•ticipation in, any fraud which might have been perpetrated. We think the case of Meyer v. Gossett, in accord with the best authorities, and that we cannot set aside this trust deed without overruling it.
I may be excused the individual remark, that it is a matter of infinite regret that no system has yet been devised, ■either here or in England, by which property may be set- tied to the use of a married woman in such manner as to-enable her to have the beneficial use of it without being subject, as remarked by an eminent English chancellor, to have-it kissed out of her by an improvident husband, or kicked out of her by a brutal one. But marital influences are too-secret and subtile to be eluded by law, and the happiness of women is too much dependent upon the kindness, affection and protection of the husband to enable her to resist them.. But such, as yet, is the imperfection of the law, and the time has passed when chancellors may, in each individual case, act upon their innate sense of justice. They must act. upon general principles, established by precedent, or in new cases in analogy with them. I have no hesitation in adding-that in the brief of Mrs. Mills’ attorney, and out of it, I have carefully sought some sound principle which, without violation of all authorities on the subject, might enable me to declare this wretchedly extorted deed of trust invalid. But the court is of opinion that it cannot be done, whilst the facts show an actual appearance before the officer and some soi’t of acknowledgment, where the certificate shows that the acknowledgment was proper, and the facts show that both the trustee and the beneficiary are wholly clear of any participation in the fraud or coercion, and that the latter gave full consideration, in good faith, without anything to excite his suspicion or put him on inquiry. The blanks in the certificate cannot reasonably be considered to have that effect. They are so obviously the result of carelessness in filling up a previously prepared form, that to hold them to be a device to make the instrument, by a strained construction, speak otherwise than according to its obvious intent, would be absurd. Not a man in a thousand would suspect a notary of having done that. Until the legislature may impose upon those who lend money, or do anything else-upon the faith of a married woman’s security, the primary duty of personal inquiry as to her free will, the law must be administered even as it has been established.
The court holds, upon the appeal of Donahue, that there-was error in refusing a foreclosure of the interests of all the parties in the lots.
This disposes of the appeal of Mrs. Mills which, in any view of the case, could not have been successful. The property was either her separate estate, or it was not. If the husbands marital rights were excluded by the terms-under which she held, then her acknowledgment under the constitution of 1874 was unnecessary. There was no denial1 of the execution of the deed by signature, nor any proof of fraud on the part of Donahoe. If, on the other hand, it were not separate property, then the husband’s curtesy was bound and the decree was as favorable to her as she could ask. The determination, however, of Donahue’s appeal, renders it unnecessary for us to determine the exact status of the property. It can only affect the disposition of the residue which will be under the control of the-chancellor.
Reverse and remand with directions to decree a foreclosure in accordance with this opinion, and for further proceedings, in accordance with the principles of equity and the practice in chancery, | [
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OPINION.
In the instruction moved for appellant, the facts in evidence, that he was a member of the firm of Gatlin & Co., the owners of the saloon at Ticon, and that Wilkerson was merely the bar-tender, are ignored, and the instruction was properly refused. If the doctor had handed the dollar to some person going to Ticon, who had no interest in the saloon, and requested him to purchase for him a quart of his favorite whiskey, at the saloon of Gatlin & Co., where it was kept, and he had done so, it would have been a sale at Ticon. But the money was handed to appellant at Mulberry, and he went to the saloon at Ticon, of which he was part owner, got the whiskey, returned, and delivered it to the doctor at Mulberry, so it was in legal effect a sale by appellant at Mulberry.
The instruction given by the court to the jury was a correct announcement of the law, applicable to the facts in evidence.
To decide otherwise might open a wide gap for invasion, by keepers of saloons, or liquor sellers, of districts placed under the protection of local option law for the protection of churches and schools.
One engaged in the sale of liquors, might go to such a district, receive money and orders for liquors from any ¡number of persons, go back to his place of business, fill the orders, return to the district and deliver the liquors without being subject to indictment.
Whilst the courts should administer the law fairly and ompartially, they should not favor schemes for its evasion.
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English, C. J.
At the April term, 1882, of the circuit court of Perry county, Monroe James was indicted for failing to work on a public road. The substance of the charge was that on the fifteenth of September, 1881, the accused party being subject to road duty, in road district No. 3 of said county, was warned to attend and work, and failed to pay for the time he was warned, or attend and work, or to furnish a substitute, etc.
He pleaded not guilty, was tried by a jury, convicted and fined $15, filed motions in arrest of judgment and for a new trial, which were overruled, and he took a bill of exceptions and appealed.
I. The ground of the motion in arrest was that the indictment had never been filed, and was not a matter of record in the court. ■
On the hearing of this motion the court found that the record showed that the indictment was returned into court by the grand jury on the thirteenth of April, 1882, and filed, but that the clerk had omitted to endorse it filed. The court thereupon ordered the clerk to endorse it filed nunc pro tunc, and then overruled the motion in arrest of judgment. There was no error in this. A court has power at any time, on sufficient showing, to amend its records so as to make them speak the truth.
It is matter of no consequence that there had been a change of the judge and of the clerk between the time of the return of the indictment into court and the time the amendment was ordered. The record entries showed all the necessary facts to make the amendment by.
The motion for a new trial was grounded upon exceptions taken to rulings of the court at the trial.
II. The bill of exceptions shows that on the trial * State introduced Marion Barber as a witness, who testified that he was overseer of road district No. 3 during the years 1881 and 1882, which said road was during said years a public road in Perry county, and that he as such overseer warned appellant to work on said road three days, etc. ■
Appellant objected to witness proving his appointment as overseer of the road by parol, and insisted that the State should produce the record of his appointment by the county court as the best evidence, and the court overruled the objection.
Although secondary evidence, as a general rule, is inad missible, unless it be shown that the primary or higher grade of evidence is unattainable, • yet this rule has its exceptions; and proof that an individual has acted as a public officer is prima facie evidence of his official character and may be shown by parol. This is well established as to sheriffs, constables, justices of the peace, and a variety of other officers, and is applicable to overseers of roads. State v. Stroope, 20 Ark., 202.
So it was competent for Barber to testify that he was overseer of the road without the production of the record of his appointment. Wharton on Criminal Evidence, (8th Ed.) secs. 164, 833.
III. Barber further testified that he was furnished a list of road hands apportioned to him by J. C. Hamilton, apportioning justice, a justice of the peace of Fourche La Fave Township, Perry county, the apportioning justice for road district No. 3, and he produced the list of hands so furnished him, signed by J. C. Hamilton as such apportioning justice. To parol proof that Hamilton was such apportioning justice, appellant objected, and insisted that the State should be required to produce the record of his appointment by the county court as the best evidence, and the court overruled the objection.
What we have said above, in relation to proof of the official character of the overseer, applies to this objection. IY. Barber further testified that a copy of the list furnished him by Hamilton was in the clerk’s office. Here the ' in the clerk’s office was produced and identified as a copy of the one furnished the witness by Hamilton. Appellant objected to its introduction because it was not marked filed, etc. The State introduced the clerk as a witness, who testified that the list was in his, the clerk’s, office, with the other lists of hands apportioned to overseers, but there was no endorsement of filing thereon.
The statute provides that the apportioning justice shall '■make out two lists oí the hands apportioned to each overseer, and shall deliver one to the overseer, and shall file the other in the office of the county clerk. Gantt’s Dig., sec. 5,340.
The list produced from the clerk’s office signed by Ham ilton, and a copy of that delivered by him to Barber, was identified, and the failure of the clerk to endorse it filed, if it was his duty to do so, did not render it inadmissible in evidence. Hamilton discharged his duty when he filed one of the lists in the clerk’s office and delivered the ■other to the overseer, and the failure of the clerk to endorse the list filed could not be made to prejudice the public.
Barber testified that at the time he warned appellant to work on the road, he was living on the place of J. W. Harper in his road district. That on a Monday morning, about sun up, within one year before the finding of the indictment, he warned him to work on the following Thursday, Friday and Saturday; that he failed to attend and work, or to furnish a substitute, or pay for the time, etc.
V. Defendant attempted to prove by J. W, Harper at the time he was warned by Barber to work on the road, Harper had a mail contract, and that he was employed Harper as mail rider, and was -engaged to ride three days in -each week, Thursdays, Fridays and Saturdays, and to work for Harper on other days, but the court excluded the •evidence.
The statute does not exempt mail riders from labor on /highways. Gantt’s Dig,, secs. 5,331-4.
VI. Appellant proved that before he moved into Barber’s road district he had been warned by another overseer in ■another road district in Perry county, and worked two days, and that after he left Barber’s district and moved into another district in Perry county, he was warned and worked •one day on a road there.
The court ruled, in effect, that proof that he had worked on a road in another district after Barber had warned him,, and he had left Barber’s district, was no excuse for failing to work when warned by Barber, and inadmissible.
There was no error in this. Appellant could not excuse himself for his failure to obey Barber’s warning by proving that he had afterwards gone into another district and. worked there.
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OPINION.
Since the decision of Lund v. Fletcher et al, 39 Ark., 325, it must be taken as the settled doctrine of this court, that a mortgage of articles of merchandise containing a provjsj0Uj tjjg mortgagor may remain in possession and sell, and no provision that the proceeds of sale shall be applied to the mortgage, or so invested as to fix a continuing trust upon them for the purposes of the mortgage, is invalid save between the parties. The doctrine-in that case was cautiously qualified and guarded, because of the doubts which have perplexed other courts in analogous cases, and the multiplicity of conflicting decisions in different state and federal courts.
This case does not- come within the purview of that principle ; and we must now proceed further and determine whether or not, as against creditors having no notice at the time the credits were given, a mortgage of personal chattels can be sustained which, upon its face, presents no inherent vice, and concerning which there is no express allegation, nor proof of actual fraud ; but under which the mortgagees or trustees have taken no possession, and have allowed the mortgagor or grantor to remain in possession, and sell without giving any account of the proceeds. That is the case presented by this record. It is not conceived that, if recorded at all, the time of recording can, in this case, make any difference. If not valid against creditors if recorded in the lifetime of the grantor, it would not be so if recorded after his death. If it would have been valid if recorded in his lifetime, it would be equally so when recorded after his death, for general creditors have no special liens to be displaced ; and our statute, which makes all mortgages liens from the time they are filed for record, contains no provision that they shall be filed in the lifetime •of the grantor.
It is no longer open to question in this State, that a mort■gage of real property unaffected with fraud, but unrecorded, ■creates a valid lien, remaining after the death of the gagor, against administrators, heirs, devisees, and general •creditors, and there is no reason why the same doctrine ■should not apply to personalty. See Haskill, adm’r., v. Sevier, ad., et al,25 Ark., 156. And this applies whether the debts of the creditors were in existence when the mortgage was made, or were created subsequently, upon the faith of the property, without notice of the mortgage, and regardless of the merits of the creditor’s claim. Upon the ■other hand it is as much closed from question that an unrecorded mortgage, however honestly made, is wholly invalid ■against attaching creditors, or persons obtaining a specific lien, or even subsequent purchasers who take with the full knowledge that they are defeating another’s lien, and who intended to do so. See 9 Ark., 112; 20 lb., 190; 18 Ib., 105; 33 Ib., 203; 37 Ib., 94.
These rules have now become so fixed that it would be unwise, in this court, to attempt their change or modification. Whatever in them there may be incongruous or shocking to a sense of equity, has resulted from efforts to-effect legislative intention, aud it devolves on the legislature to bring our equity jurisprudence in harmony with the-moral sense of the most civilized peoples. The simple question left for us here is, was this mortgage fraudulent, either in fact or by legal presumption ?
It was neither alleged nor proved to have been made with-[base motives, but may beheld fraudulent if the facts justify the conclusion. It has many of the indications of fiaud by presumption, which existed in the well known Twynne’s- ; case. That presumption may grow, not alone from the face of the instrument, but from concurrent acts, surrounding circumstances and subsequent conduct of the parties to the instrument, reflecting light upon their original intention, The more modern and better doctrine is that this is a presumption of fact, and that no conclusive legal presumption arises from the fact that the vendor remained in possession, and that even such a presumption of fact does not necessarily arise where the possession accompanies or follows the deed, or where there is a mere mortgage. It is a question for a jury, or, in equitj', for the chancellor, under all the-circumstances.
If the mortgage had been merely of articles, beneficial in the use, such as tools, agricultural implements, railroad equipments, horses, mules, etc,, then it would be natural and proper that the owner should remain in possession and have that use, not only for his own convenience, but the-better to enable him to pay the debt; and future acquisitions-of such property may be brought within the mortgage, and provisions for their change .and replacement as necessity or convenience may require, may be properly made. See case of Lund v. Fletcher, supra.
But drugs in stock are kept soleljr for merchandise and have no other use than for sale, and disappear on selling. The parties would not have been allowed to provide that the mortgagor might remain in possession and dispose of drugs in the course of trade, without applying the proceeds to the debt, or in some way attaching to them or their fruit, a continuing trust, and at the same time make continual additions to the stock, all to be protected by the mortgage against creditors. It is evident that one might continue business all his life that way, secretly investing all surplus profits for the benefit of himself and family, and always keeping enough in stock to satisfy the demands of his trade, with perfect impunity — that is if his mortgagee were allowed thus to protect and shield him. It is no answer to say that by this course the mortgagee’s security is diminished also. That would be his own business if true, but he would have no right at his own risk to enable his debtor to defraud every body else. That would violate the maxim of “sic utere tuo” etc. Besides it would be an easy matter to keep always in sight enough to satisfy the mortgage and not enough more to tempt other creditors to grasp after the surplus. According to ordinary human motives, a creditor thus favoring a debtor, might rely upon his complaisance to that extent.
Why should parties be allowed to do with impunity the very things which the law tells them they shall not agree to dof Yet it seems to us¿that the able counsel for appellants are urging upon us that they must be ; because, as they say, the mortgage contains no such stipulations and is not void upon its face, and that matters are not necessarily fraudulent when done, which the law would have held fraudulent in them to stipulate to do.
In this case it appears that when the grantor gave the deed of trust he was largely in debt, at least to one other creditor, who was his clerk; owing him not only by note, but for unpaid services ; that it was kept secret even from this clerk, who of all others would have been apt to know it, and was most interested to know it, and who in good faith ought to have been advised of it. That the grantor, with the assent, at least tacitly given, of the trustees, proceeded in the business as if he were true owner, for more than three and a half years, selling and replenishing, and rendering no account of the proceeds to anybody; that he went on availing himself of the services of his clerk, without paying him, that the clerk "relied upon his employer’s apparent ownership and increased his credit; that after the grantor’s death, the trustees, or one of them, accepted the administration of the estate, getting control and possession thereby of the stock; and then having all in their own hands, they advertised a sale of the property under the trust deed.
Whatever views the trustees and the grantor may have had of these transactions, we think the chancellor did right in enjoining the sale perpetually. Conceding honesty of intention, and the complainant' does not seem to desire to question that, this belongs to the class of cases in which courts hold transactions fraudulent from public policy.
The perpetual injunction is against Austin and Martin, in their charactar as trustees. It will not prevent Austin from proceeding as administrator with such sales as the probate court may direct.
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Smith, J.
The object of this bill, exhibited by the heirs of John Stayton, Sr,, against the legal and personal representatives of Bartlett R. James, was to affect certain lands in the hands of the defendants with a trust in favor of the plaintiffs. It is alleged that James had purchased the lands upon credit at a public sale of school lands in the year 1858 ; that his bid was in reality for the benefit of Stay-ton who was his father-in-law, and that Stayton afterwards furnished the money to pay off the purchase bond, and went upon the lands and improved them, but died without obtaining a deed.
The answer traversed these allegations ; set up title in the defendants by descent from James, to whom the school commissioner had in 1867 conveyed the premises, and interposed the statute of limitations and the staleness of the demand. But the circuit court divested the title out of defendants and vested the same in the plaintiffs.
The evidence that Stayton paid the purchase money of the lands, or furnished James with funds for the purpose* is of the most meagre and unsatisfactory description. But •suppose that he did, a purchase in the name of a child is regarded prima facie as an advancement and not as a resulting trust for the father. In Baker v. Leathers, 3 Porter, (Ind.) 558, the rule was held to apply to a purchase in the-name of a son-in-law.
But there is another ground upon which we prefer to rest our decision, as about it there cannot be any doubt. Courts-will not enforce a resulting trust after a great lapse of time,, or laches on the part of the supposed cestui que trust.
The advances were made by Stayton, if at all, in 1863. James received his deed in 1867. Stayton knew to whom the deed had been made. He lived for more than a year afterwards, yet made no complaint. His heirs were all of full age at his death, and it is not shown that they were at •that time under any disability to sue, or that the facts, out -of which their cause of action arose, were concealed from them, James survived until 1875, yet fifteen years were .suffered to elapse between the receipt of the deed by James and the commencement of this suit. During all this time the plaintiffs have slept upon their rights, and no excuse is given for their inaction. No one has been in the actual occupation of the land. Stayton cleared a small part of it and built a cabin, but never fenced it, and abandoned it in 1862. One of his sons built another cabin in 1866, the ■first one having been burned during the war, but left it the ■same year at his father’s request. James and those who claim under him have held the legal title, have paid the taxes, and have claimed the land openly and adversely to the plaintiffs. Never, since the execution of the deed until the present bill was filed, had Stayton, or any of his legal representatives, asserted any claim to the land, or exercised any acts of dominion over it.
In Conway v. Kinsworthy, 21 Ark., 9, the owner of an unlocated donation claim executed a sealed instrument, which was duly acknowledged and recorded, reciting that he had sold his claim and covenanting to make the vendees a •deed, after the issue of his patent. Here was an express trust. Three or four years after, the patent was issued and shortly afterwards he sold and conveyed the lands to another person, through whom by sundry mesne conveyances they finally came to the hands of Kinsworthy. Thirteen years after this sale and conveyance, Conway, who had succeeded to the rights of the three original cestuis que trustent, filed his bill in chancery to establish and quiet his title to one-third of the lands. And this court held that he was barred of all relief by his own supineness, neglect and unexplained acquiescence in the adverse right of others.
In that case, as in this, the lands were wild and uncultivated, but the court ruled that they were constructively in the possession of the holder of the legal title.
In Guthrie v. Field, 21 Ark., 379, foreclosure of a mortgage after the lapse of fourteen years was refused, the mortgagee never having got possession.
In Prevost v. Gratz, 6 Wheat., 481, the lapse of forty years and the death of all the original parties were deemed sufficient to presume the discharge and extinguishment'of a trust, proved once to have existed by strong circumstances. Here twenty-four years had passed since the date of the sale at which James purchased.
In Hume v. Beal’s Ex’trix., 17 Wall., 336, a bill by >cestuis que trustent was dismissed, where all the grouuds of action had occurred between twenty and thirty years, and the alleged breach of trust had taken place thirty-seven years before the bill was filed, and the trustee was dead, notwithstanding the complainants were women and the •trustee a lawyer, who had married their half-sister.
To warrant a court of equity decreeing the execution of a stale trust, not only must the trust be clearly established, but the facts must have been fraudulently and successfully concealed by the trustee from the knowledge of the beneficiary. Badger v. Badger, 2 Wallace, 87.
Reversed and a decree will be entered here, dismissing the bill for want of title to equitable relief. | [
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Johnson, C. J.
This action was filed by appellee against appellant on March 8, 1933, seeking a recovery upon a certain insurance policy issued by appellant in favor of appellee on August 2, 1921, the pertinent provisions thereof being: “If the insured becomes wholly, continuously and permanently disabled and will for life be unable to perform any work or conduct any business for compensation or profit, or has met with the irrecoverable loss of the entire sight of both eyes, or the total and permanent loss by removal or disease of the use of -both hands or of both feet, or of such loss of one hand and one foot, and satisfactory evidence of such disability is received at the home office of the company, the company, will, upon the acceptance of such proof, if all premiums previously due have been paid, waive the payment of all premiums falling due thereafter during such disability, and if such disability existed before the insured attained the age of sixty years, the company will immediately pay to the life beneficiary the sum of ten dollars for each thousand dollars of the sum insured and will pay the same sum on the same day of every month thereafter during the lifetime and during such disability of the insured.
“Any premium waived or monthly payment made by the company on account of this provision will not be deducted from any settlement under this policy, and the sum insured and loan and cash surrender value will be for the same amount as if the premiums waived had been paid in cash.
“The foregoing benefits for disability are conditioned upon the representatives of the company .being permitted to examine the insured before the acceptance of proof and during twelve months thereafter. ’ ’
Appellee alleged that prior to his sixtieth birthday and while the policy was in full force and effect he became permanently and totally disabled within the purview of said policy.
Appellant filed an answer to the complaint which denied all the material allegations thereof and affirm a - tively pleaded the five year statutes of limitation in bar of the action; also that no notice had been given by the insured to the insurer of the alleged injury until 1932. Upon the issues thus joined a trial to a jury was had on January 16, 1934, which resulted in a verdict and judgment in favor of appellee for the sum of $1,750.
The testimony was amply sufficient to support the jury’s finding that appellee was totally and permanently injured prior to his sixtieth birthday and at a time when the policy was in full force and effect, but, since this point is not now urged upon us for consideration, we do not detail the testimony in reference thereto.
Appellant urges that appellee’s alleged cause of action is barred 'by §§ 6955 and 6960, Crawford & Moses’ Digest, because as it is argued the suit was not filed within five years after appellee attained his sixtieth birthday, and that the suit was not brought within five years after receipt of his total and permanent disability.
We have never held that suits upon insurance policies similar to the one under consideration must be brought within five years after receipt of total and permanent disability; neither have we ever held that such suits must be brought within five years after the insured attained the birthday designated in the policy as limiting liability thereunder.
In Ætna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S. W. (2) 912, we stated the applicable rule as follows: “If, therefore, the disability exists and commenced when the contract was in force, it is immaterial how or when proof is made, if within the statutory period, and recovery may be had for the damage sustained, excluding that occurring beyond six months from the time proof is made. As stated in the case of Hope Spoke Co. v. Maryland Cas. Co., supra, the proof of disability is intended to give the insurer an opportunity to investigate the facts affecting the question of its liability and the extent thereof. This end is served when the complaint is filed, and no prejudice can result if, as in the instant case, no claim is made for benefits accruing before the filing of the complaint or the statute (Crawford & Moses’ Digest, § 6155) prescribing a penalty or attorney’s fee is not invoked.”
Again in Missouri State Life Ins. Co. v. Foster, 69 S. W. (2d) 869, we reiterated the rule as follows: “We are definitely committed to the rule that liability attaches under contracts of insurance similar to the one under consideration, upon causation of the injury, and it necessarily follows from this that no subsequent act or acts of the parties can destroy the liability thus created.”
And again in the more recent case of Equitable Life Ins. Society v. Felton, ante p. 318, 72 S. W. (2d) 225, we stated the rule in the following language:
“We have repeatedly held in eases arising under contracts of insurance not dissimilar to the one here involved that liability against the insurer and in favor of the insured attaches and comes into being upon the happening of total and permanent disability. * * * The requirement for proof of loss or notice under this contract being a condition subsequent, suit might be maintained for the liability at any time until barred by the statute of limitations.”
The effect of the rule thus quoted is that, in policies of insurance similar to the one under consideration and which provides a monthly indemnity to the insured for life in the event of total and. permanent disability incurred during the effectiveness of the policy, suits may be instituted, prosecuted and maintained by the beneficiary at any time after receipt of such injury, but the aggregate recovery is limited to a five year period immediately prior to the filing of such suit. When the rule is thus interpreted, it appears that the trial court was correct in determining and submitting this issue. The doctrine thus stated is in full accord with the previous decisions of this court and is certainly not in conflict with our holdings in Smith v. Mutual Life Ins. Co., 188 Ark. 1111, 69 S. W. (2d) 874; Atlas Life Ins. Co. v. Wells, 187 Ark. 979, 63 S. W. (2d) 533.
It is next insisted that no notice was given by appellee to appellant of receipt of the injury complained of. On this point it suffices to say that the policy under consideration does not provide for notice. Moreover, were the following provisions of the policy, “The foregoing benefits for disability are conditioned upon the representatives of the company being permitted to examine the insured before the acceptance of proof and during twelve months thereafter,” construed as one for notice, it would fall clearly within the rule of a condition subsequent and not a condition precedent to recovery, as announced by ns in many cases. Hope Spoke Works Co. v. Maryland Cas. Co., 102 Ark. 1, 143 S. W. 85; Home Indemnity Co. v. Banfield Brothers Packing Co., 188 Ark. 683, 67 S. W. (2d) 203, and cases therein cited. Moreover, appellant was apprised of appellee’s disability in July or August, 1932, and had full opportunity to make such examination and investigation thereof as it deemed proper and expedient, as this suit was not begun for several months thereafter; therefore appellant was afforded timely opportunity to examine appellee which was the only right reserved in the clause of the policy just quoted.
Neither can we agree that prejudicial error is made to appear in admitting testimony in reference to the mental condition of deceased subsequent to his injury or the argument of counsel relative thereto. The insured’s mental condition was a circumstance tending to show his total and permanent disability; therefore such inquiry was relevant and proper.
Finally, it is urged that prejudicial error was committed by the trial court in refusing to grant a new trial because of newly-discovered evidence. This contention is grounded upon certain testimony of the War Department of the U. S. A. which tended to show that the insured was several years older than he had represented his age to be in the application which superinduced the issuance of the policy of insurance. No error is made to appear in this regard. First, no diligence was shown in procuring this testimony. Appellant’s witness, E. D. Leas, testified that he, the investigator and adjuster for appellant, made an investigation of this claim when filed (August, 1932) and appellee then advised witness that he enlisted in the United States Army at Memphis, Tennessee, but could not give the name of his general or colonel, but thought he had served under General Cook. Witness further testified that he pursued the inquiry no further at that time. This testimony demonstrates a total lack of diligence upon appellant’s part. If the law compelled a new trial under the facts and circumstances here presented, litigation would never end.
This suit had been pending more than ten months when finally tried, and seven additional months had been-consumed by appellant in investigation prior thereto; therefore this length of time certainly afforded ample opportunity to make all necessary inquiries. Fowler v. State, 130 Ark. 365, 197 S. W. 568; Lisk v. Uhren, 130 Ark. 111, 196 S. W. 816; Hinkle v. Lassiter, 142 Ark. 223, 218 S. W. 825. Moreover, the testimony offered is merely cumulative to the testimony produced by appellant, and such testimony is never considered sufficient to compel a new trial. Winn v. Jackson, 158 Ark. 644, 245 S. W. 812, and cases there cited. Not only this, but it has ever been the established doctrine in this court not to reverse a judgment because of newly-discovered evidence except in such cases as it clearly appears that the trial court abused its discretion. Arkansas Mutual Fire Ins. Co. v. Stuckey, 85 Ark. 33, 106 S. W. 203; McDonald v. Daniel, 103 Ark. 589, 148 Ark. 271; Banks v. State, 133 Ark. 169, 202 S. W. 43.
We have always held, first, that the granting of a new trial for newly-discovered evidence is within the trial court’s discretion; secondly, a new trial will not be granted for newly-discovered evidence, unless the applicant has shown due diligence; third, to warrant a new trial for newly-discovered evidence, it must appear that the evidence will probably change the result, was discovered after the trial, could not have been discovered before, the trial by due diligence, and is material, and not merely cumulative or impeaching. Arkansas Power & Light Co. v. Mart, 188 Ark. 202, 65 S. W. (2d) 39. It appears that the newly-discovered evidence here adduced, if admitted in evidence, would tend only to impeach the testimony of the insured. It will be remembered the insured testified to his age as it appears in his application which superinduced the issuance of the policy, and the purpose and effect of the offered testimony would be to tend to impeach his testimony. Not only this, but, were the testimony admitted, the result probably would not be changed because appellee testified in an affidavit in response to the motion for a new trial that he erroneously gave his age to the war department'. Certainly, if this were true, and the trial court so found, it would not change the result of the trial.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
Search warrants were issued by the circuit judge of Jefferson County under § 2637 of Crawford & Moses’ Digest on information that gambling devices commonly called slot or marble machines were kept contrary to law in a cigar store operated by S. A. Rosenberg and in a sandwich shop operated by Jerome Weaver in Pine Bluff. The sheriff executed the writs by taking into his custody certain slot marble machines which were ■being used at 'both places. The two causes were consolidated by order of court, and appellant herein, the owner of the machines, intervened, alleging that they were manufactured and used for the purpose of amusement, and not for the purpose of gambling.
On the hearing of the consolidated causes., the trial court found that the machines were gambling devices and ordered that they be destroyed, from which is this appeal.
The récord reflects that the machine seized at the cigar store was used a part of the time by the patrons for gambling and at other times for amusement only; that the. machine seized at the standwich shop had been used by the patrons for gambling until notice had been given by the circuit judge that marble slot machines would be confiscated, and that then it was used for the purpose of amusement only; that the máchines are so constructed that by putting a nickel in the slot ten marbles are released and are brought into play one at a time by pulling a lever on the side, and then by pulling another lever each marble is shot out to a large board containing holes which are numbered, into which the marbles drop; that the patron getting the largest score wins the game and the prize.
Section 2637 of Crawford & Moses’ Digest, under which the machines were seized, provides for the destruction of gambling devices, which § 2630 of Crawford & Moses’ Digest makes it unlawful to keep and exhibit. Said § 2630 is as follows:
“Every person who shall set up, keep or exhibit any gaming table or gambling device, commonly called A. B. C., E. 0., roulette, rouge et noir, or any faro bank, or any other gaming table or gambling device, or bank of the like or similar kind, or of any other description although not herein named, be the name or denomination what it may, adapted, devised or designed for the purpose of playing any game of chance or at which any money or property may be won or lost, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not less than one hundred dollars, and may be imprisoned any length of time not less than thirty days nor more than one year. ’ ’
Appellant contends that the marble slot machines owned by him and seized in these actions are not gambling devices inhibited by § 2630 of Crawford & Moses’ Digest, and that the order for their destruction should be reversed. The description of these slot machines make them gambling devices per se under the construction placed upon said § 2630 in the case of Howell v. State, 184 Ark. 109, 40 S. W. (2d) 782, and cases cited therein. We might add that they are gambling devices per se because the only reasonable and profitable use to which they may be put is use in a game of chance.
No error appearing, the judgment is affirmed. | [
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McHaney, J.
Appellee, for himself and as administrator of the estate of Babbette May, deceased, who was his wife, brought this action against appellant to recover damages for personal injuries received by her on January 22,1932, when she fell on the steps or while descending the steps leading from one part of the basement of appellant’s store in Little Bock to another part of the basement thereof. Mrs. May received severe and permanent injuries to her right leg, there being an oblique fracture of the right femur. She died on April 6, 1932, from this and other contributing causes.
A trial of the cause resulted in a verdict and judgment against appellant.
Several errors are assigned for a reversal of the judgment against it by appellant, but we consider it necessary to discuss only one of them which of itself calls for a reversal of the judgment. The condition of the nosing board at the head of the steps, whether in good or bad condition, was sharply at issue. During the course of the trial, appellant’s counsel requested the court to order the jury to go to the scene of the accident and view the condition of the stairway. This was not done. At the conclusion of all of the evidence, appellant’s counsel renewed his request to have the jury go look at the steps. The court inquired of the jury, whether it wanted to look at the steps. Whereupon juror W. C. Edwards said: “I went down and looked at them at noon.”
“Mr. Cobb (counsel for appellant): Note our objections. ’ ’
As the court reporter wrote it up, the court overruled the objection, and Mr. Cobb saved his exceptions, but the court struck from the bill of exceptions as prepared by the stenographer, the fact that the objection was overruled, and exceptions saved. Thereupon other members of the jury spoke up and said: “We will take his word for it,” referring to juror Edwards. “Mr. Cobb: Defendant requests that the entire jury go look at the steps, one member of the jury having already done so.” The court announced that he would not require the jury to go. Whereupon Mr. Cobb objected, his objection was overruled, and he saved his exceptions.
We are of the opinion that this constituted error. Under Crawford & Moses’ Digest, § 1293', it is provided: “Whenever, in the opinion of the court, it is proper for the jury to have a view * * * of the place in which any material fact occurred, it may order them to be conducted in a body under the charge of an officer to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person other than the person so appointed shall speak to them on any subject connected with the trial.”
Under this statute it would have been proper for the court to have ordered the jury to view the scene of the accident, if he thought it advisable, but only in accordance with the terms of the statute, that is, to be conducted in a body, under the charge of an officer and to be shown the place where the accident occurred and the alleged defective steps by^ some person appointed by the court, but it was highly improper for one juror to do so, unless by the consent of both parties. The reason is, as happened in this case, that such juror, when the jury has retired to consider of its verdict, may become a witness in the case for one of the parties and give his testimony to the jury as to what he found, without being-sworn as a witness and without being subject to cross-examination. For obvious reasons, this would not be proper. But appellee says that, even though this was error, no proper exceptions were saved to the action of the court. We. cannot agree with appellee in this regard. The above statement from the record shows that counsel for appellant did object when juror Edwards announced that he had been down at'noon and looked at the steps. According to the corrected bill of exceptions, the court did not rule upon the objection and the exceptions were not saved. But we are of the opinion that, when counsel for appellant made the request that the entire jury be ordered to go to look at the steps, since one member of the jury had already done so, which the court declined to do over appellant’s objection and exceptions, this amounted to an exception to one member of the jury viewing the steps in the absence of the others.
The other errors urged for our consideration may not arise on a retrial of the case, and we therefore refrain from a discussion of them.
For the error indicated, the judgment is reversed, and the cause remanded for a new trial. | [
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Smith, J.
-On July 2, 1931, H. S. Ragland purchased from C. D. Conrey Company, a domestic corporation dom-. iciled at Stuttgart, a new automobile for $610, of which $260 was. paid in cash. The balance was to be paid in 12 monthly installments, evidenced by promissory notes, each for $33.46, the first of which matured on August 2, 1931, and one on the second day of each month thereafter until all had been ¡paid. A sales contract or agreement was entered into, to which the notes referred, and the title was retained until all the notes and the interest thereon had been paid in full. It was provided that in case of default to make payments promptly the possession of the car might be retaken, wherever found, without notice to or demand upon the purchaser, and the car sold, either publicly or privately, and the proceeds of sale applied to the notes, which also recited the retention of the title. On the day of the execution of the contract of sale and the notes the Conrey Company, for a valuable consideration, assigned them to the Commercial Credit Company, Inc., hereinafter referred to as the Credit Company, a domestic corporation domiciled at Little Rock, and having no place of business or agent elsewhere. Installment payments were made as follows: The August 2d payment was made August 11; the September 2d payment was made October 7; the October 2d payment was made November 7; the November 2d payment was made November 30; the December 2d payment was made January 9, 1932; and the January 2d payment was made February 5. The Credit Company, the assignee and holder of the contract of sale and the notes, insists that no other payments were made. Ragland insists that a seventh payment was made to an agent of the Credit Company to whom other payments had been made and which had been remitted by the agent to his principal.
The last payment which the Credit Company admits receiving was made by a check, which was first dishonored by the bank upon which it was drawn, but was later redeposited for collection and was paid upon its second presentation.
The car had been converted into a truck, and Rag-land testified that this added to the actual and to the usable value thereof.
About the last of December, and before the payment due on the 2d of that month had been paid, a representative of the Credit Company went to Ragland’s place of business in Stuttgart to make collection of the payment then due. Ragland proposed to give a check, which the agent declined to receive, because of the trouble over the last check, and because it was then after banking hours. Ragland stated that he did not have the cash, but insisted that the check be taken and went into his office to draw the check. While Ragland was thus engaged the agent went to the ear and removed the ignition key and departed with it before the check could be delivered. Rag-land thereupon mailed the check to the Credit Company at Little Rock, and requested the return of the key. This check was deposited for collection, and' was duly paid, but the key was not returned. The Credit Company admits receiving an additional payment on February 5, covering the note due January 2. The return of the key was demanded at the time this payment was made, but the key was not returned. Ragland testified that he made other demands for the return of the key, but it was not returned, and he finally stated that he would make no more payments until the key had been returned. Ragland sought to acquire a key to the car from various sources without success, and he was unable to operate the car without it until he finally “wired around the ignition,” a method of operating the car winch was suggested to him by the machinist and foreman of the Conrey Company garage. This proved unsatisfactory, and largely destroyed the usable value of the truck, as “it would cause the ignition points to short out and the motor backfired, and the pistons kicked through the block.” This happened in the latter part of January, and the car was hauled to the Conrey Company’s garage, where repairs were made costing slightly more than $75. Payments on the repairs were made in installments of $25 each, the first payment being made March 1, the second March 16, and the last March 19. The testimony shows this damage was occasioned by the removal of the key and the attempt to run the truck by “wiring around the motor.” While the car was in the garage for repairs, a purchase-money note matured and was not paid. According to the credit company’s contention, there were two of these notes. The Credit Company advised the Conrey Company, as indorser, that notes were in.default, and the latter advised the former that the truck was in its possession, and, pursuant to directions so to do, the Conrey Company drove the truck to Little Rock and delivered it to the Credit Company. It is not seriously questioned that the conversion was the joint act of the two corporations. The Credit Company sold the car for $215.
Thereupon suit was brought against both corporations for the alleged wrongful conversion of the truck, its value being alleged to be $500. Judgment was also prayed for the cost of the repairs and for the usable value of the car.
A number of motions were made which questioned the jurisdiction of the court. As suit had been brought for the value of the car at the time of its conversion, the court sustained a demurrer to so much of the complaint as prayed judgment for the cost of the repairs and the usable value of the truck, whereupon the motion to dismiss was renewed as to the Credit Company, it having been served with process in Little Rock, but that motion was overruled.
Although the court sustained a demurrer to the action for repairs and for usable value, it permitted proof thereof to be made, as it was shown that both the repairs and the usable value of the car exceeded the two notes which the Credit Company claimed were due and unpaid at the time of the conversion of the truck. The theory upon which this testimony was admitted was that it tended to show that the Credit Company had no right to declare a forfeiture of the contract of sale, because, at the time it did so by converting the truck, damages had been sustained by Ragland which exceeded the notes then due, even though neither of them had been paid, that is, that the damages which had been sustained were greater than the notes claimed to be due.
It is true, of course, that the Credit Company, as the assignee of the sales contract, had the right to demand that the payments be made promptly as agreed, and to repossess the car in case of default. But it is true also that none of the payments were made when due — they were all made out of time — yet they were all accepted when made. Even the payment which was made by the check which Ragland was engaged in drawing when the ignition key was removed was accepted.
Having extended indulgences, which it was not required to do, by accepting the delayed payments, the Credit Company should, before taking possession of the truck, have advised Ragland that the practice would no longer be continued. General Motors Acceptance Corporation v. Hicks, ante p. 62. Indeed, Ragland was attempting in good faith to pay the only note then due when the truck was put out of commission by the removal of the ignition key, and that payment was actually received, as was also another payment, before the conversion occurred, and subsequent payments were not made only because of the continued refusal of the Credit Company to return the key. There appears to be no question- — at least the jury was warranted in so finding — that the Credit Company took the key for the purpose of preventing appellee having the use of the car. We conclude therefore that the jury was warranted in finding that the conversion was wrongful, and, as it was the joint act of both defendants, Ragland had the right to bring suit against both defendants in any county where either was domiciled and could bé served. The suit was brought in the county in which the Conrey Company was domiciled, and the service was therefore valid on the Credit Company in another county. Section 1176, Crawford & Moses’ Digest.
The case of Ames Iron Works v. Rea, 56 Ark. 426, 19 S. W. 1063, affords authority for the holding of the trial court that the damages for the repairs to the truck could be considered in determining whether anything was due the Credit Company at the time of the conversion. In the case cited a suit in replevin was brought to recover a cotton gin which had been sold under a reservation of title. The vendor had failed to deliver the property at the time and in the manner required by the contract of sale, and the vendee set up the damages thus occasioned as a counterclaim against the debt for the purchase money. It was there held that the purchaser had the right to recoup these damages and hold the property upon paying the balance of purchase money, less the damages.
So here, if, as the jury has found, the Credit Company was responsible for damages exceeding the debt then due, the right did not exist to retake the truck without allowing credit for the damages, and the conversion was therefore wrongful. When the additional wrong of conversion was added, the purchaser then had the right to sue for the value of the truck, less the purchase money due thereon.
Upon this issue the court, at the request of the defendants, charged the jury as follows: “You are instructed that, if you find that plaintiff is entitled to recover in this case, then the measure of his damage would be the market value of the automobile taken at the time it was taken, less the balance he is indebted to the defendant on the purchase price of the same, plus interest at six per cent, per annum on the difference of net balance from the time it was taken. ’ ’
The verdict of the jury for the sum of $223.45 was responsive to this instruction, and is fully sustained by the testimony. The judgment pronounced on this verdict appears to be correct, and it is therefore affirmed. | [
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Smith, J.
This suit was instituted hy the Administrator of Federal Emergency Relief in this State to enjoin the State Commissioner of Revenues from collecting a license tax on automobiles, and a tax on gasoline consumed in operating therein, which are used in this State and purchased out of funds made available to the State of Arkansas under the Federal Emergency Relief Act passed by the Congress on March 12, 1933.
The cause was tried under the following agreed statement of facts: “Under the provisions of the Federal Relief Act of the Congress of the United States approved May 12, 1933, the President of the United States appointed Harry L. Hopldns as Federal Emergency Relief Administrator, and the latter has duly appointed the plaintiff, W. R. Dyess, as Emergency Relief Administrator for Arkansas, who has duly qualified and is acting as such administrator and who brings this action in that capacity. The said W. R. Dyess, in such capacity as Emergency Relief Administrator, appoints and sets the salaries of all employees of Emergency Relief Administration, subject to the approval of the said Harry L. Hopkins, which Emergency Relief Administration is the name designate of the Arkansas unit of said Federal Emergency Relief Administration, of which said Harry L. Hopkins is the national head. The said W. R. Dyess, as such administrator, determines the amount necessary for federal relief in this State and presents said data to the Governor of the State of Arkansas, who signs requisitions therefor on blanks provided by said Emergency Relief Administration. A copy of such application is attached hereto. The Federal Relief Administrator then makes the grant for relief within the State and United States checks for the designated amount, which are payable to J. M. Futrell, Governor of Arkansas, are then forwarded by the agency of the Federal Government to said Governor. The latter indorses said checks, delivers them' to said W. R. Dyess as Emergency Relief Administrator and takes a receipt therefor, a copy of which is hereto attached. The said Emergency Relief Administrator then indorses said checks and deposits them in Little Rock banks, and other banks in the State, to the credit of Emergency Relief Administration, which dispenses same in accordance with said act of Congress and the amendments thereto. All expenditures are supervised by field superintendents from the Washington-office of the Federal Emergency Relief Administration, and reports of all expenditures of said money are duly and regularly made to the Federal Relief Administration in Washington.
“It is now the policy of the said Federal Emergency Relief Administration to purchase, out of the funds granted for relief within the State, certain livestock, including horses, mules, cattle and hogs, and to sell same to persons on the relief rolls and who are unable to provide same. The purpose thereof is to put a number of such financially destitute persons back on the land where they can make their own living. Mortgages are taken on said livestock so sold, with a low rate of interest, and an opportunity to repay the amount. Said mortgages are taken in the name of Emergency Relief Administration, the Arkansas unit of said Federal Relief Administration, in such legal manner as to be binding on the purchasers. All of the funds used in the purchase and distribution of said livestock are furnished by the United States Gov- eminent, granted for relief -within the State, as herein outlined.
“In order to provide for the distribution of said livestock, it has become necessary for the Arkansas unit of Federal Emergency Relief Administration to purchase a number of motor vehicles, including automobiles, trucks and trailers, with which to distribute such livestock, and, after such distribution, to superintend its care and the repa3rment of the purchase price. The said motor vehicles are, and will continue to be, used exclusively for that purpose, and the purchase price of said motor vehicles is paid solely out of the funds granted, as herein stated, for relief within the State of Arkansas.
“The said Earl R. Wiseman is the duly appointed, qualified and acting Commissioner of Revenues of the State and is threatening to collect motor vehicle license fees on such motor vehicles and a tax on the gasoline used in such vehicles.”
The court held that the automobiles used as stated were the property of the United States Government, and that neither they nor the gasoline used in their operation were subject to taxation, and this appeal is from that decree.
For the reversal of this decree it is-insisted that the act of Congress granted the funds spent in this State to the State, thereby passing the title to the State, and upon becoming State funds were subject to the tax, as the State legislation imposing the tax had not exempted such funds from taxation.
It is unnecessary to consider or to decide what the state of the law would be if the funds apportioned to this State had become the property of the State, as, in our opinion, that result was not intended and has not been accomplished. It is our opinion that these funds and the automobiles for which a portion of the funds had been expended were and are Federal property, and as such are not subject to taxation by the State. It is true the act of Congress refers to the apportionment of these funds to the States “as grants to the several States,” but it does not appear that such a donation thereof was made as to pass the title and control thereof from the Federal Government. They are- — and continue to be — Federal funds, subject to the supervision of the Federal Government in their disbursement. The State has no control over the expenditure of these funds. It does appear that, for the convenience of the Federal administrator, and to expedite the distribution of the Federal Government’s bounty, application for the funds is made by the Governor of the State, who signs the receipt therefor and indorses the check used in remitting the funds, but when he has done so he delivers the indorsed check to the plaintiff State administrator for distribution. The clerical acts mentioned comprise the full extent of the authority and duty of the Governor. No other officer, agent or employee of the State has any control or supervision of the funds, or of the property purchased therewith. The Governor of the State acts merely as the agent or intermediary employed by the Federal Government in discharge of the beneficent purpose of the congressional act. The checks are delivered upon indorsement to the plaintiff, who was appointed by the national administrator, and the persons who make the actual disbursement are all Federal employees, who are not subject to the control or supervision of any officer of the State. No reports of expenditures are made to the Governor, but such reports are made to the national administrator, who appointed the State administrator, and the national administrator makes report to the President of the United States and to the Congress of the manner in which and the purposes for which the money was expended. The act of Congress under which the apportionments are granted requires this, and negatives the idea that an absolute grant or gift had been made to the State. If, by any possibility, any of the funds thus apportioned were not required, the unexpended balance would revert, not to the State, but to the Federal Government.
The title to the automobiles is in the United States, and not in this State. It is stipulated that the purchase and use of these automobiles was and is in aid and in furtherance of the congressional program for the amelio ration of the emergency which induced the passage of the legislation. As to what, would be done with the automobiles when the use of them for the purposes for which they are now employed has ceased is a question not presented by the record before us. They are now used for a Federal purpose, and, if so, they are not subject to taxation; nor is the gasoline required to run them subject to taxation.
A similar question was involved in the case of Panhandle Oil Co. v. State of Mississippi, 277 U. S. 218, 48 S. Ct. 451, 56 A. L. R. 583. There the State of Mississippi sued to recover taxes claimed on account of sales of gasoline made for the use of the Federal Coast Guard Fleet in service in the Gulf of Mexico and its Veterans ’ Hospital at Gulfport in that State. The Supreme Court of Mississippi held the exaction a valid privilege tax measured by the number of gallons of gasoline sold; that it was not a tax upon instrumentalities of the Federal Government, and that the United States was not entitled to buy such gasoline without the taxes charged other users of gasoline being paid. 147 Miss. 663, 112 So. 584.
In reversing this case the Supreme Court of the United States held, in the case first cited, that: “While ■ Mississippi may impose charges upon petitioner (the dealer who sold the gasoline) for the privilege of carrying on trade that is subject to the power of the State, it may not lay any tax upon transactions by which the United States secures the things desired for its governmental purposes.”
In the case of Johnson v. State of Maryland, 254 U. S. 51, 41 S. Ct. 16, it was held (to quote the headnote) that: “A law of a State penalizing* those who operate motor trucks on highways without having obtained licenses based on examination of competency and payment of a fee, can not constitutionally apply to an employee of the Post Office Department while engaged in driving a government motor truck over a postroad in the performance of his official duty. ’ ’
In that opinion it was said: “With reg*ard to taxation, no matter how reasonable, or how universal and undiscriminating, the State’s inability to interfere has been regarded as established since McCulloch v. Maryland, 4 Wheat. 316. The decision in that case was not put upon any consideration of degree but upon the entire absence of power on the part of the States to touch, in that way at least, the instrumentalities of the United States (4 Wheat. 429, 430) and that is the law today.”
See also Grayburg Oil Co. v. Texas, 278 U. S. 582, 49 S. Ct. 185, reversing the decision of the Supreme Court of Texas, [3 -S. W. (2d) 427], holding that the State had the right to collect a tax on gasoline sold to the United States and delivered on a military reservation in that State.
It is provided, in § 35 of act 65 of the Acts of 1929 (vol. 1, Acts 1929, page 309), that motor vehicles belonging to the United States Government and used in its business exclusively shall not be required to pay any motor vehicle fuel tax nor to pay a license fee on such vehicles, thus recognizing the exemption from taxation and the absence of any purpose to collect such a tax.
We have not overlooked act 108 of the Acts of 1933, page 329, which does not affect the conclusion announced.
The decree of the court below is correct, and is therefore affirmed. | [
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Humphreys, J.
Appellee instituted this suit on the 29th day of June, 1933, against appellant in the circuit court of Lee County to recover $3,040.64 on a life insurance policy issued by appellant to her husband in October, 1924, in which she was the beneficiary, together with the statutory penalty and attorney’s fee provided by § 6155 of Crawford & Moses’ Digest for refusal to pay same.
The cause was submitted to the court, sitting as a jury, upon the pleadings and testimony adduced, which resulted in a judgment against appellant for $3,040.64, the amount admitted to be due after deducting the loan on the policy, and the sum of $36480 statutory penalty, being 12 per cent, of the amount recovered, and $350 as attorney’s fee, from which is this appeal.
Appellant has paid in partial satisfaction of the judgment $3,108.72, being the amount admitted to be due on the policy, together with interest thereon, so the only question presented by this appeal is whether appellee was entitled to recover the statutory penalty and attorney’s fee.
The record reflects the facts to be that the policy sued upon provides an indemnity of $5,000 payable to the beneficiary in ease of the death of the insured, William F. Felton, and for an indemnity payable to the insured in case of his disability; that, prior to his death, he presented a claim for about $3,000 to the appellant under a disability benefit in the policy, which was being investigated at the time of his death; that, upon proof being made of his death, appellant admitted its liability on that account and offered to pay same to appellee if she would surrender the policy; that appellee refused to surrender the policy until her claim on account of the disability of her husband was allowed or settled, but offered to receive the amount tendered and execute an acquittance on account of the death claim; that appellant refused to accept the acquittance and pay the death claim, but demanded a surrender of the policy before it would pay the amount admitted to be due; that the policy provides that appellant “agrees to pay at its home office in the city of New York $5,000 to his wife, Sarah E. Felton, beneficiary, with the right of the insured to change the beneficiary or assign this policy upon receipt of due proof of death of the insured, provided premiums have been duly paid and this policy is then in force and is-then surrendered properly released.” Section 6155 of Crawford & Moses ’ Digest, relative to a failure to pay insurance claims, is as follows:
“In all cases where loss occurs, and the fire, life, health, or accident insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of such loss, twelve per cent, damages upon the amount of such loss, together with all reasonable attorneys’ fees for the prosecution and collection of said loss; said attorneys ’ fee to be taxed by the court where the same is heard on original action, by appeal or otherwise and to be taxed up as a part of the costs therein and collected as other costs are or may be by law collected. ’ ’
The purpose of this suit was to force the payment of the admitted death claim and as an incident thereto the recovery of a penalty and attorney’s fee for failure to pay same. The right to maintain the suit for the recovery of the death claim depends upon a correct construction of the clause in the policy providing for a surrender of the policy upon payment of the claim. The policy contains two contracts, one covering the -death of the insured, and the other covering his disability. "Where the disability of the insured is a- matter in dispute and the subject of an existing claim at the time of his death, to require the surrender of the policy as a condition precedent to the payment of the admitted death claim would take from the beneficiary or claimant the evidence of the disability contract or the instrument upon which to base a suit for the recovery on account of the disability. It seems to us in such a contingency the only reasonable construction to give the policy surrender clause is that the surrender or delivery of the policy must be postponed until the claim for disability is adjusted or paid. Of course, there could be no reason for withholding the policy if no disability claim had arisen prior to the insured’s death, but where such a claim exists, there is good reason for retaining the policy, and the clause should be construed in accord with reason. The insurer could suffer no injury by paying the admitted death claim and taking a receipt therefor pending the adjustment of the disability claim. According to the record, the beneficiary offered to execute such a receipt upon the payment of the death claim. Appellant embraced both contracts in the same policy or instrument, and, if inconvenience results therefrom, it (the insurer) should bear the burden of such inconvenience.
The right existed to bring suit to enforce payment of the death claim under the circumstances without surrender of the policy, so the 12 per cent, penalty followed the judgment. We cannot reduce it. The amount of the attorney’s fee is not fixed by the statute, but is dependent upon the value of the services rendered. This suit involved the question of enforcing the payment of an admitted liability and not that of a disputed liability, and for that reason we have reduced the fee allowed to $175, and the judgment, as modified, is affirmed.
Butler, J., dissents. | [
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Smith, J.
On June 16, 1930, the Randolph State Bank borrowed $30,000 from the First National Bank in St. Louis, and as collateral therefor indorsed and delivered to the St. Louis Bank notes payable to the order of the Randolph State Bank for about twice that amount. Among the notes so indorsed and delivered was one executed by R. C. Lehman, which was secured by a deed of trust describing six lots owned by Lehman situated in the towns of Hoxie and Walnut Ridge. Lehman’s note was not due at the time of its indorsement and delivery to the St. Louis bank as collateral security.
Ben A. Brown, who is a brother-in-law of Lehman, was an active, vice president of the Randolph State Bank, and was the trustee in the deed of trust which Lehman had executed. Dr, J, W. Brown, the president of the Randolph State Bank, testified that Ben A. Brown had made the loan to Lehman against the will of the board and the loan committee, and that the loan was not regarded as a satisfactory one.
Ben A. Brown took up with the president of the Randolph State Bank and with Judge J. L. Bledsoe, a director in and the attorney for that bank, the question of releasing from the deed of trust one of the lots described therein as lot 1, block 19, in the town of Hoxie, and in that connection made the following representations to the bank’s president and attorney: That this lot 1 was vacant and unimproved, and that Lehman had an opportunity to make an advantageous lease of this .lot for a filling station, but that the lease could not be made unless the lot was released from the deed of trust, but that, if it were released, the lease itself would be assigned to the bank, and a new deed of trust would be executed subordinate to the lease. As a matter of fact, lot 1 was not vacant but had a brick garage on it.
There is a conflict in the testimony as to these representations, but we think the testimony clearly established the facts as above stated.
There is a controversy also as to whether Ben A. Brown, in repeating these representations to the president of and the attorney for the bank was acting as Lehman’s agent. We think he was if it is of any importance to decide that question, and the effect of the representations is the same as if Lehman himself had made them directly to the president of and attorney for the bank. “One is liable for his agent’s fraud and misrepresentations within the apparent scope of his employment, whether he authorized or knew of them or not.” DeCamp v. Graupner, 157 Ark. 578, 249 S. W. 6.
There was no other consideration for the release of this lot 1 from the deed of trust, and the president, thinking to improve the security of the bank, consented to the preparation of a release of the lot by the bank’s attorney. The release was prepared and executed and later recorded. After the execution of the release a lease was executed by Lehman to O. K. Wing, as trustee, which lease was duly assigned by the lessee to the Phillips Petroleum Company. Thereafter Lehman conveyed this lot 1 to his wife, subject, of course, to the outstanding lease. Lehman and his wife testified that the consideration for the deed from him to her was the partial payment of a debt which Lehman owed his wife.
The Randolph State Bank became insolvent and closed its doors without repaying all of its loan to the St. Louis Bank. Upon the maturity of the Lehman note, payment thereof was demanded, and, upon refusal or failure by Lehman to pay, suit was brought by the St. Louis bank to foreclose the deed of trust given to secure Lehman’s note.
There had been no notation upon the margin of the record where the deed of trust was recorded showing that the note which it secured had been transferred or assigned when the release deed was executed on September 13, 1930, but the note had been indorsed and delivered to the St. Louis. Bank as above stated, and was in the possession of that bank as collateral when the release deed was executed. The St. Louis bank was not advised of and did not consent to the execution of the release.
Separate answers were filed by Lehman and his wife. He admitted the execution of the note, and did not question the amount due on it, but he alleged that the release had been executed without fraud or misrepresentation on his part, and that he had conveyed the lot-for full value to his wife. Mrs. Lehman alleged that she was a subsequent purchaser of the lot within the meaning of § 7399, Crawford & Moses’ Digest, and that she had accepted the deed from her husband in good faith in part payment of a debt due from him, and gave testimony to support those allegations.
The court held, in effect, that Mrs. Lehman was not a subsequent purchaser within the meaning of § 7399, Crawford & Moses’ Digest, but that the petroleum company — the assignee of the lease — was, and decreed the cancellation of the release except in so far as it affected the lease, which was held to be valid. Judgment was rendered against Lehman for the balance due on the note, and the deed from him to his wife was canceled, and it was held that the deed of trust was a subsisting lien against lot 1, and the foreclosure of the deed of trust was ordered, subject to the lease held by the petroleum company.
An appeal has been duly prosecuted from so much of the decree as holds, in effect, that Mrs. Lehman is not a subsequent purchaser within the meaning of $ 7399, Crawford & Moses ’ Digest.
It was shown by the testimony of a real estate agent that the value of all the lots described in the deed of trust was only $4,725, and that the present value of lot 1 was $2,500, leaving property worth only $2,225 to secure a debt of more than $5,000 if lot 1 is excluded.
It was shown by the testimony that the loan evidenced by the note was made to Lehman alone, and that his wife had not obligated herself to pay it, but it was shown also that she joined in the execution of the deed of trust here sought to be foreclosed.
It is not contended that Mrs. Lehman was under the apprehension that the note had been paid, nor is it contended that she advanced to the Bandolph State Bank any consideration for the execution of the. release deed.
There was testimony at the trial from which this appeal comes to the effect that the St. Louis bank had become the owner of the Lehman note through a public sale thereof, but it is contended that it was not shown that there was such a sale as operated to pass the title thereto.
We do not think it essential to determine this question. The St. Louis bank holds the note either as owner or as pledgee, and the law is well settled that, when the owner of securities pledges them to secure the payment of his own débt, he impliedly transfers the right to the remedies which will make the securities available for the payment of his debt in case of his own default. Chapter on Pledge, 21 B. C. L., page 666. We held, in the recent case of Leonard v. Taylor, 183 Ark. 936, 39 S. W. (2d) 704, that: “The holder of the pledge has a special ownership therein to *the. extent of the debt secured thereby, and may proceed to enforce it if it be a chose in action, a negotiable instrument, or any of a like nature. ’ ’
Appellants make no contention that the assignment of the Lehman note to the St. Louis bank as a part of the collateral to secure the.note executed to it by the Randolph State Bank did not automatically effect an assignment of the lien of the deed of trust securing the Lehman note. That such was its effect has been many times decided. Among the latest cases to that effect are those of Fullerton v. Storthz, 182 Ark. 751, 33 S. W. (2d) 714, and Rockford Trust Co. v. Purtell, 183 Ark. 918, 39 S. W. (2d) 733.
The controlling question to be considered is the effect of § 7399, Crawford & Moses’ Digest, as applied to the facts of this case. This section gives any person who, according to the face of the mortgage record, is the owner of any of the liens there mentioned the right to satisfy the liens of record by indorsement on the margin of the record where the instrument is recorded, and provides that, when this is done, a subsequent purchaser, mortgagee, or judgment-creditor, is protected against such liens “unless there shall appear on the margin of the record where such instrument is recorded a memorandum showing that the said mortgage, deed of trust, vendor’s lien, lien retained in deed or note, or other evidence of indebtedness secured thereby has been transferred or assigned, which said memorandum shall be signed by the transferrer or assignor, giving the name of the transferee. or assignee, together with the date of such transfer or assignment, said signature to be attested and dated by the clerk.”
Section 7400, Crawford & Moses’ Digest, provides that the lien may also be discharged “by separate release deed or instrument duly executed, acknowledged and recorded, which instrument, when so recorded, shall be of the same effect as a marginal entry.”
Now, as has been said, there was no indorsement on the margin of the record showing that the note there secured had been assigned, and it is therefore insisted that Mrs. Lehman acquired title to lot 1 as a subsequent purchaser discharged from the lien of the deed of trust.
We do not think so. In our opinion, the case of Vance v. White, 180 Ark. 470, 21 S. W. (2d) 853, an nounces the principle which controls here. The facts in that ease were as follows: Brandon & Baugh sold a tract of land to Jeff White, and in part payment took a note secured by a vendor’s lien. Brandon & Baugh indorsed and delivered the note, before its maturity, to Mrs. Vance as security for a debt due by them to her. While the note was so held by Mrs. Vance, the maker thereof died, and the note was paid to Brandon & Baugh ■by White’s son. No indorsement of the transfer of the note had been made, on the margin of the record when Brandon & Baugh made the marginal indorsement that the note had been paid. In holding that § 7399, Crawford' & Moses’ Digest, did not apply, we said: “The rights of no such person” (subsequent purchaser) “have intervened here. If the original grantee in the deed reserving the vendor’s lien were living, he would not be heard to say that he had paid the amount of his note to a person who did not own it, and was not in possession of it when he made the payment, and had thereby discharged the lien which secured the. note. Nor can his heirs.”
Here there was no payment of or upon the secured note, and the release was obtained, not for a valuable consideration, but upon the false representation that the lot was vacant, when, in fact, it was one upon which there was a building of value. Moreover, Mrs. Lehman as well as her husband was one of the makers of the deed of trust. She may not therefore claim to be a subsequent purchaser within the meaning of § 7399, Crawford & Moses’ Digest, through the fraudulent representation of her husband, who had joined with her in the- execution of the deed of trust.
The decree of the court below is correct, and will be affirnled. It is so ordered. | [
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Smith, J.
Three brothers, Cleadus, John and Ohelton Fields, attended a dance in a hall owned and operated by Arthur Peck. Oral and Carrol Patton, who were brothers, also attended the dance. Cleadus Fields purchased a bottle of whisky, as he supposed, from á person whom he thought was -one of the Patton boys. When opened it was found that the bottle contained urine, and not whisky, whereupon Cleadus Fields approached the Patton boys and demanded the return of his money, expressing, at the same time, in rather forcible, though somewhat inelegant, terms, his opinion of the person who would play such a trick as had 'been played upon him. One of the Patton boys, after denying that he had made the sale, said to Fields: “If you want to live long, you had better keep your mouth shut. ’ ’ The parties commenced fighting. It was dark, and they were out-of-doors, and the testimony is in irreconcilable conflict as to who actually began the fight. At any rate, John Fields, who was standing by, jumped at one of the Pattons to seize a pistol which he saw the latter draw, but he failed in the attempt to seize it and was shot and killed. Peck, owner and operator of the dance hall, hearing the shooting, came to the front door to see what was happening, and was himself shot and killed as he appeared in the door. Peck lived long enough to make a dying declaration to the doctors who attended him, and they testified that in this declaration Peck stated that “When he opened the door, the Patton boy was standing just outside the door, and he just laid his hand on his shoulder and he told him. to stop that, and he wheeled and shot him.” Peck did not state which one of the Patton boys shot him.
Oral Patton escaped and has not been arrested. Carrol Patton was arrested the night of the shooting, and at the trial for killing Peck from which this appeal comes, the testimony offered in his behalf was to the effect that he was unarmed, and that he did none of the shooting, and that all of the shots were fired by his brother Oral. The sheriff testified that when he arrested Carrol he found him lying across a bed with his clothes on, and that he had a pistol and scabbard in the bed with him. This pistol was a .38 calibre revolver, and a deputy sheriff who assisted in making the arrest testified that he was an expert in fire arms, and that he examined the revolver at the time of the arrest and found that three chambers had been very recently fired — within less than twenty-four hours. Some .32 calibre shells were found at the place of the shooting. The deputy sheriff testified that an automatic pistol ejects the shells as fired, but that the shells must be removed from a revolver by hand. One of the doctors who attended Mr. Peck testified that the wound received by him and which caused his death appeared to have been inflicted by a hard bullet, and not a lead bullet, because the wound was not jagged or irregular, and that the wound, from its appearance, could have been inflicted by either a .32 or a .38 calibre pistol. The deputy sheriff testified also that the pistol found in Carrol’s possession was loaded with two lead bullets and two copper jacket bullets, and that the latter were harder than the former and would make a less jagged wound.
These facts appear to answer the assignment of error that the testimony is insufficient to support the verdict of the jury, which imposed a sentence of ten years in the penitentiary for murder in the second degree. The evidence is sufficient to sustain the conviction upon either of two grounds, (1) that appellant may actually have fired the fatal shot, or (2), if not, that he was present, aiding, abetting and encouraging his brother in firing it. It was not questioned that one or the other did fire the fatal shot, and that they were acting in concert is sufficiently established to sustain the conviction. This is made certain by testimony to the effect that the Patton brother who fired the first shot was advised by the other to “Shoot him!” Simmons v. State, 184 Ark. 373, 42 S. W. (2d) 549.
In support of the motion for a new trial testimony was offered to the effect that a member of the jury had failed to pay his poll tax, and because of this failure was not a qualified elector. The verdict and the judgment pronounced thereon were not void on this account. It was held, in the case of James v. State, 68 Ark. 464, 60 S. W. 29, (to quote the headnote) that: “Objection that a juror has not paid his poll tax, if available at all, comes too late after verdict,” and that holding was reaffirmed in the case of Teel v. State, 129 Ark. 180, 195 S. W. 32.
A different question is presented where the juror is interrogated as to the payment of his poll tax, and falsely answers that he had paid, when, in fact, he had not. In such a case the juror, through his fraud and false tes timony, imposes himself upon the court as a competent juror, when he is, in fact, ineligible to serve as such. But if the defendant in a criminal case, or either party to a civil case, wishes to raise the question of a juror’s eligibility, he must ask the specific question upon the voir dire examination, and, if he does not do so, the right to raise the question is waived, and cannot be raised after the jury has been sworn or a verdict has been returned. It appears that the juror, with certain others, was summoned as a bystander, all of whom were asked by the court the general question if they were qualified electors, but no specific question was asked by the court, or by counsel in the case, whether these special jurors had paid their poll tax. This being true, the objection that they had not done so comes too late and cannot now be raised. Section 6343 Crawford & Moses’ Digest; Fones Bros. Hdw. Co. v. Means, 182 Ark. 533, 32 S. W. (2d) 313; Lynch v. State, 188 Ark. 831, 67 S. W. (2d) 1011.
It was assigned as error that the verdict had been arrived at by lot, and in support of this assignment of error the foreman of .the jury testified as follows: All of the jurors had voted that defendant was guilty of murder in the. second degree, and all had voted to fix his punishment at some term of years allowed by law, but they had not agreed on the punishment. The witness testified that, after agreeing that defendant should be found guilty of murder in the second degree, they first voted whether he should be given the maximum punishment of twenty-one years, and, the vote not being unanimous, it was then agreed that, the vote should be taken on the. question whether he should be given a sentence of seven years, and this vote was not unanimous. The witness then proceeded to say: “After these first two (votes) were taken, there was another one Taken. Each one was going to put on a piece of paper how much they were going to give him; they were trying to get at how we stood. There were three for seven years; two for twelve; one for five; three for fifteen, and three for ten.” There was offered in evidence the quotient of this verdict made in the jury room, which gave the result of ten and one-half years. The witness was asked, however: “Did you agree beforehand that you would take that result?”, and he answered: “No, sir, that would just give us an idea of how we stood.” Another ballot was then taken, and all of the jurors voted, not for ten and one-half years, but for ten years.
It thus appears that (.he verdict was not even a quotient verdict. However, we prefer to put the decision upon the ground — and we do put it upon the ground— that it was not competent for the juror to thus impeach the verdict.
The statute (subdivision third of § 3219, Crawford & Moses’ Digest) provides that a new trial may be granted “where the verdict has been decided by lot, or in any other manner than by a fair expression of opinion by the jurors.” But the statute also provides that: “A juror can not be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot, ’ ’ Section 3220, Crawford & Moses’ Digest.
In the case of Speer v. State, 130 Ark. 464, 198 S. W. 113, we said: “Lot involves an element of chance. The quotient verdict is not the result of a lottery.” We there also said that: “Verdicts of juries cannot be impeached by the evidence of jurors except where the verdict was reached by lottery. ’ ’
In the case of Snow v. State, 140 Ark. 9, 215 S. W. 3, it was insisted that the judgment, sentencing the defendant to a term in the penitentiary, should be reversed because it had been rendered upon a quotient verdict. In overruling that contention, we there said: “Again, it is urged that the judgment should be reversed because the jury fixed the verdict by the - quotient method. This charge is not sustained by evidence, except by the affidavit of a juror, which is inadmissible to impeach the verdict. Speer v. State, 130 Ark. 457, 198 S. W. 113.”
There appears to be no error in the record prejudicial to appellant, and the judgment must therefore be affirmed, and it is so ordered. | [
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Per curiam.
Appellee moves the court to dismiss the appeal herein for the following reasons: First, a summons was not served on it in apt time; second, J. H. Crain has no right to appeal because he was not a party to the suit in the lower court.
The second contention that J. H. Crain has no right to appeal because he was not a party to the suit in the lower court is predicated upon the. following facts and circumstances. On December 8, 1933, appellant James Baker filed his complaint against appellee seeking injunctive relief. On the. same day answer was filed by Appellee, and on the following day, December 9, the cause was submitted to the chancellor in vacation and a decree was entered dismissing the complaint for want of equity. This suit was instituted by Baker as a taxpayer of the levee district. Baker did not pray an appeal from the adverse judgment, and thereafter J. H. Crain, a taxpayer of the district, filed an intervention in said cause in his own behalf, and in behalf of all other taxpayers in the district praying that the cause be determined upon its merits and, in the event the decree could not be set aside, that he be permitted to appeal to the Supreme Court of this State. This intervention was never passed upon by the chancellor.
The appeal was afterwards perfected by Baker, but he moved its dismissal, and thereupon Crain ásserted the right to prosecute the appeal in the place and stead of Baker.
Under the law, J. H. Crain has the same right to prosecute an appeal from an adverse judgment rendered in a taxpayer’s suit that the original plaintiff had.
Section 1098 of Crawford & Moses’ Digest provides: “Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring them all before the court within a reasonable time, one or more may sue or defend for the benefit of all.”
Following the rule stated above, we held in Howard-Sevier Rd. Imp. Dist. v. Hunt, 166 Ark. 62, 265 S. W. 517, that: ‘ ‘ Since Kennedy and the others who instituted the original action attacking the validity of the assessment of benefits as a whole, which appellants are here seeking to enforce, represented the appellees and all the taxpayers and property owners of the district who were in the same class, it follows, from our statute and the above authorities, that the appellees were parties to that original action the same as if they had been made so by name. ’ ’
From the rule thus stated, it appears that J. H. Crain, being a taxpayer of the district, was a party to the action as effectually as if he had been made so by name.
It is unnecessary for us to determine whether or not the summons has been served in apt time, because appellee, by appearing herein and bringing into question the capacity of Crain to maintain and prosecute this appeal, has entered its appearance generally and for all purposes. Federal Land Bank v. Gladish, 176 Ark. 267, 2 S. W. (2d) 696.
It follows from what we said that the motion to dismiss the appeal must be denied. | [
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Johnson, C. J.
Appellant Paving Improvement District No. 23 of El Dorado was organized in 1927, and immediately thereafter appellee Matheney was employed as attorney for the district. The services rendered and to be rendered bj? the attorney were the usual and ordinary ones consisting of collecting past-due assessments of benefits,, bringing suits to enforce payment of such past-due assessments and representing the district generally in its litigation. Appellee’s contract of employment with appellant district is evidenced by the minutes of the board of date June 4, 1927, and expressly provides compensation to the amount of 75 per cent, of all penalties collected against defaulting property in the district. On June 25,1928, appellee’s contract was amended, and his compensation increased to all the penalties collected against delinquent property. This contract is evidenced by the minutes of the board meeting of that date. On March 2, 1931, appellee was employed by the district as collector of all assessments of benefits due the district, and his compensation as such was fixed by the board at 3 per cent, of all collections effected. This contract is evidenced by the minutes of the meeting of the board of that date.
Appellants, Board of Commissioners, was reorganized in the early part of 1933, and appellee’s services as attorney and collector were dispensed with by the new board, and soon thereafter this suit was instituted for an accounting'. Upon trial the chancellor stated the account as follows:
Balance alleged due under the complaint..................$4,006.60 CREDITS
Item 1 — Penalties ...........................................................................$1,451.27
Item 2 — 3% Collector’s commission on $9,392.90 ........................................................ 281.78
Item 3 — 3% on former Collector’s shortage of $960.25 ..........................................................................v..... 28.81
Item 4 — 3% on T. N. Wilson tax of $1,111.25...... 33.33
Item 5 — 3°/o on State aid vouchers, $1,031.17...... 30.93
Item 7 — Expenses of collection, 1919........................ 15.00
Item 8 — Expenses as collector, 1931........................... 24.76
Item 9 — Expenses as collector, 1932................. 26.80
Item 10 — Investment of district in properties acquired in 1930-1931............................................. 534.25
Item 11 — Additional court costs paid on same...... 23.70
Item 12 — Investment in district properties acquired in 1932...................................................... 698.80
$4,006.60 $3,149.43 Less Credits..............................$3,149.43
Balance .........................................$ 857.17
IMPROPER CHARGES
Item 1 — Voucher for $107.65.......................................................$107.65
Item 3 — Charles Carpenter 1927 tax.................................... 36.00
Item 4 — Mrs. Kate Harris, interest....................................... 31.08
Item 5 — Expenses paid by district on district property ................................................................................ 412.90
’ $857.17 $587.63
Less improper charges .........$587.63
Balance due from defendant to plaintiff.................................$269.54
And entered a decree accordingly, from which this appeal is prosecuted by appellant district.
Appellant’s first contention is that item one allowed to appellee by the court aggregating $1,451.27, same being penalties collected by appellee from delinquent lands is unlawful, unauthorized and improvident. This allowance is based upon an express contract of the board of improvement with appellee, and was faithfully performed by all parties thereto over a period of approximately six years. The law is well settled in this State that boards of commissioners of improvement districts have full power and authority to make contracts — such as the ones here under consideration — save only that the compensation awarded by such contracts must be reasonable.
In Bowman Engineering Co. v. Missouri Highway District, 151 Ark. 47, 235 S. W. 399, we stated the rule as follows: “The commissioners have power to make contracts, but tke3 are trustees of the property owners, and can only make reasonable ones. The owners of the property have a right to challenge the validity of such contracts by showing that the3 are unreasonable. Of course, in testing the validdy of such contracts, the court should not substitute its own judgment primarily for that of the commissioners, the authority- to make the contract being-lodged by the lawmakers in the commissioners, but the inquiry of the court is to determine whether or not the contract is so improvident as to demonstrate its unreasonableness. ’ ’
Again in Martin v. Street Improvement District No. 349, 178 Ark. 588, 11 S. W. (2d) 469, we restated the rule as follows: “As the commissioners had the right to contract with appellant in regard to his fee as attorney, their contract is binding unless it be found that the contract was so improvident as to demonstrate its unreasonableness, and unless and until its improvidence be first found as a fact, the question of its reasonableness does not arise. In other words, the contract between the attorney and the commissioners must be enforced unless it be found that it is so improvident as to demonstrate its unreasonableness. When this finding is made, the contract is treated as being void, as it would be in the case of actual fraud, and in such case the recovery would be on a quantum meruit basis.”
Tested by the rules thus stated, the chancellor was fully warranted in finding that the compensation awarded appellee by appellant for collecting delinquent assessments under his contract of employment as attorney for the district Avas reasonable.
Next, it is urged that item three allowed by the court to appellee should have been rejected. Appellant admits that item two is a proper charge under the contract of March 2, 1931, but contends that item three does not come within the purview of the contract. This item represents a shortage of a previous collector and according to the evidence Avas collected only after determined efforts so to do, and we think the court was correct in allowing compensation therefor.
Items numbered 10,11,12 as alloAved by the court are strenuously objected to by appellant. • These charges arose out of foreclosure sales wherein the improvement district became purchaser of the foreclosed properties. As we understand, it is not contended that the services rendered were not reasonably worth the amount claimed by these, items, but the contention is that the district should pay only after the property passes into private ownership. "When the district became the purchaser of this property at its foreclosure sale, it thereupon became responsible for the expenses incident thereto, and we think the chancellor was correct in so deciding.
Other minor items are urged upon us for review, but Ave deem them of insufficient importance to here discuss in detail. It suffices to say they fall within the rules heretofore discussed.
No error appearing, the judgment is affirmed. | [
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Kirby, J.
The sole question for determination here is whether lands in Arkansas purchased with money paid by the United States Government to World War veterans as adjusted service compensation or bonus are subject to taxation.
The section of the United States statute (§ 454, title 38, USCA) upon which the claim is based reads as follows: “The compensation, insurance and maintenance and support allowance payable under parts II, III, IV, respectively, shall not be assignable; shall not be subject to the claims of creditors of any person to whom an award is made under parts II, III or IV; and shall be exempt from all taxation. Such compensation, insurance and maintenance and support allowance shall be subject to any claims which the United States may have, under parts I, III, IV and V against the person on whose account the compensation, insurance or maintenance and support allowance is payable.”
In Wilson v. Sawyer, 177 Ark. 492, 6 S. W. (2d) 825, this court held that money paid to a disabled soldier under guardianship by virtue of the World War Veterans’ Act was not subject to garnishment whether in the hands of the soldier or his guardian.
In Stone v. Stone, 188 Ark. 622, it was held that the guardian of a war veteran, appointed by the State court, is not an agent or instrumentality of the United States; any payment to such guardian vested title in the ward discharging the obligation of the United States in respect to such installments. That money paid by the United States as a pension to the guardian of a war veteran, who had been adjudged incompetent, and by him deposited in the bank for his ward, was the property of the ward and subject to apportionment between the ward and his divorced wife under the provisions of our statute, the award to the wife of a portion of such money not creating the- relationship of debtor and creditor within the meaning of the provisions of the Veterans’ Act and was not exempt thereunder.
In Spicer v. Smith, 288 U. S. 430, it was held that compensation funds paid to World War veterans on deposit in a bank at the time of its insolvency were not entitled to priority ‘ ‘ as debts due the United States ’ ’ under § 191, title 31, USCA. That a guardian appointed by a State court for an insane World War veteran was not an agent or instrumentality of the United States, and pay ment to the guardian for such ward vested title to such funds in the ward.
The exact question raised by this appeal has already been determined by the United States Supreme Court in Trotter v. Tennessee, 290 U. S. 354, 54 Supreme Court Reporter, No. 3, page 138, where it was held that real estate purchased with compensation money was not exempt from taxation. The court there said: “We think it very clear that there was an end to the exemption when they lost the quality of moneys and were converted into lands and buildings. The statute speaks of ‘compensation, insurance and maintenance and support allowance payable’ to the veteran, and declares that these shall be exempt. We see no token of a purpose to extend a like immunity to permanent investments or the fruits of business enterprises. Veterans who choose to trade in land or in merchandise, in bonds or in shares of stock, must pay their tribute to the State. If immunity is to be theirs, the statute conceding- it must speak in clearer terms than the one before us here.”
It thus appears from the above decision of the United States Supreme Court that the exemption does not follow the compensation money after its investment in lands or other forms of securities, nor relieve the owner from regular taxation thereon. The decree is affirmed. | [
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Butler, J.
On the 23d day of May, 1933, Joe Reed, appellee, filed his complaint in the Ouachita Chancery Court, in which he alleged “that he, George Reed, Mary Reed Gaskin, Arthur W. Sewell and John W. Sewell, minors, heirs at law of Parthenia Berry Sewell, deceased, and certain other parties, the heirs at law of Millie Reed Weaver, deceased, were the owners as tenants in common of the west half of the northeast quarter and the east half of the northwest quarter of section 33, township 15 south, range 15 west, in Ouachita County, Arkansas, and that they derived title to said lands through Fannie Reed, the common source, to whom a patent was issued from the United States on or about January 15, 1885.
“He stated that Fannie Reed died intestate in Ouachita County on April 2, 1885, seized and possessed of the lands above described, and leaving surviving as her heirs at law the following named persons: the plaintiff, Joe Reed, a son; George Reed, a son and defendant; Mary Reed Gaskin, a daughter and defendant; Millie Reed Weaver, a daughter, and Nannie Reed Berry, a daughter, defendants.
“That Nannie Reed Berry died possessed of her interest in the property and leaving as her sole heir at law a daughter, Parthenia Berry Sewell, who later died without having alienated her interest in the property and leaving surviving as her sole heirs at law defendants Arthur W. Sewell and John W. Sewell, minors; that Millie Reed Weaver died intestate, leaving surviving numerous heirs at law who were made parties defendant, but who are not parties to this appeal.
“That title to the above-described property is now vested in the following persons as tenants in common as' follows: In Joe Reed, plaintiff, an undivided one-fifth interest; in George Reed, an undivided one-fifth interest; in the minors, Arthur W. and John W. Sewell, through their mother, Parthenia Berry Sewell, heir at law of Nannie Reed Berry, an undivided one-fifth interest. In numerous defendants, heirs at law of Millie Reed Weaver, an undivided one-fifth interest.
“That the defendants have at all times mentioned been in possession of the lands described for the benefit of the plaintiff and said defendants; that on or about October 16, 1922, defendants sold a commercial oil and gas mining lease on the property for the sum of $70,000, but failed to account to the plaintiff for his interest; that since the sale of the lease the defendants have collected royalties under the lease amounting to more than $100,-000, for which they have refused to account.
“That defendant, Chicago Title & Trust Company, holds certain sums of money for its wards, Arthur W. and John W. Sewell; that certain defendant oil companies [later dismissed by plaintiff], unless restrained, would continue to pay over the royalties to plaintiff’s cotenants to plaintiff’s irreparable injury.
“Plaintiff prayed for an accounting and judgment for a one-fifth share in the sum realized from the sale of oil and gas from the property; for a decree of partition of the lands between himself and his defendant cotenants; and for the impounding of the other interests in the land for the satisfaction of his claims.”
To this complaint, certain oil companies which had been made defendants filed their answers, but these pleadings need not be noticed since the suit as to these defendants was dismissed by the plaintiff. The guardian of the appellants, Arthur W. and John W. Sewell, made answer, denying the allegations of the complaint and setting up as an affirmative defense that “Fannie Reed, at the time of her death, was the owner of the land described; that after her death an administrator was appointed to administer upon her estate, that certain claims were filed and probated and that the probate court of Ouachita County, Arkansas, ordered a sale of the lands involved to secure funds with which to discharge the claims. That, in pursuance to the order of the probate court, the lands described were sold to one Chandler, and an administrator’s deed executed and delivered to him. A copy of the deed was attached as a part of the answer and marked Exhibit A. It alleged the sale by Chandler of the property involved to Nannie Reed Berry, attaching his deed as Exhibit B and making it a part of the answer. It alleged that Nannie Reed Berry went in possession of the land under her deed from Chandler and remained in possession until her death, claiming to be the owner thereof; that, upon the death of Nannie Reed Berry, the land passed into the possession and ownership of Parthenia Berry Sewell, who remained in open, notorious and exclusive possession, claiming ownership for more than seven years. It alleged the death of Parthenia Berry Sewell, the vesting of the title in the minors, Arthur W. and John W. Sewell, and their subsequent open and notorious possession under claim of ownership. The defendant prayed the dismissal of the complaint for want of equity.”
On the pleadings and evidence adduced, the trial court found the issues of law and fact in favor of the plaintiff, and rendered a decree in accordance with the prayer of the complaint. From that decree, this appeal is prosecuted.
The correctness of the decree is challenged on the following’ grounds: (1) that the proof is not sufficient to establish that Joe Reed was the child of Fannie Reed; (2) that his claim as a tenant in common is barred by limitation; (3) that the appellee is barred by his laches; and (4) that the sale of the land by the Ouachita Probate Court divested the title out of all the heirs of Fannie Reed.
We are of the opinion that the contention last made is sound, and there is therefore no necessity for us to deal with the other questions presented by the appellant and to discuss the evidence relating thereto.
On April 19, 1892, the probate court of Ouachita County, by its order, duly entered of record, approved the appointment of J. O. Russell as administrator of the estate of Fannie Reed, deceased, made by the clerk in vacation. On January 17, 1894, said court made and entered an order reciting the application by the administrator for an order to sell the lands of the intestate to pay debts probated against the estate, it being alleged that there was no personal property of the estate out of which the debts could be paid. .The prayer of the administrator’s petition was granted, and the sale ordered to be held on February 28, 1894. At the April term of the probate court, on April 16, 1894, an order was duly made and entered of record confirming the sale of the lands to D. W. Chandler for the sum of $190. On August 2, 1895, an administrator’s deed containing the proper recitals was executed, conveying the lands to the purchaser, Chandler, which deed was duly acknowledged and recorded on August 29, 1895.
The judgment of the probate court is sought to be set aside on the theory that the grant of letters to Russell was improvidently made by the court because the heirs of Fannie Reed, who were sui juris and lived within the county, had not been served with citation under the provisions of the statute giving a preferential right to administer to one entitled to a distributive part of the estate of the intestate; and, second, because there were in fact no debts due by the estate, or any other necessity for an administration, and, in consequence thereof, the administration proceedings on the estate of Fannie Reed are void.
The. evidence shows that on the 11th day of February, 1904, 'Chandler, the purchaser at the administration sale, by his quitclaim deed of that date, his wife joining therein, duly executed and acknowledged, conveyed said land to Nannie Berry, a daughter of Fannie Reed and the mother of the Sewell appellants. It is the contention of the appellee that, if the validity of the administration proceedings be conceded, since Nannie Berry, after the death of her mother, Fannie Reed, was a tenant in common with the appellee, the purchase by her inured to his benefit, and that their status as tenants in common was not changed by reason of her purchase from Chandler.
A probate court has exclusive original jurisdiction in matters relative to the estates of deceased persons, executors and administrators. Therefore, in the administration proceedings, it was acting within its jurisdiction. As to all such matters, it is a court of superior jurisdiction, and its judgments import the same degree of verity as that of other superior courts. Flowers v. Reece, 92 Ark. 611, 123 S. W. 773. Jurisdiction is specifically given probate courts to order a sale of real estate of an intestate to pay debts. Stumpff v. Louann, 173 Ark. 193, 292 S. W. 106; Sullivan v. Times Publishing Co., 181 Ark. 27, 24 S. W. (2d) 865. Since the court had jurisdiction in the proceedings, errors and irregularities would not render its judgment void. Therefore the fact that the heirs had no notice would be an error which might have been corrected in that court or by appeal. If there was an error in granting the letters to Russell without notice to the heirs, it was such one as did not render the proceedings void. Jackson v. Reeve, 44 Ark. 496. The fact also that there might have been no debts due by the estate was not sufficient to render the judgment void. Stuart v. Peay, 21 Ark. 117. The judgment of a probate court as to the necessity for an administration is conclusive on collateral attack. Sharp v. Himes, 129 Ark. 327, 196 S. W. 131; Turley v. Gorman, 133 Ark. 473, 202 S. W. 822.
The appellee contends, however, that the instant proceeding is not a collateral, but a direct, attack upon the judgment of the probate court for fraud in its procurement. It will be observed by reference to the complaint filed by the appellee that the action was for a purpose independent of the judgment of the probate court and contemplated other relief than the setting aside of that judgment. The rule announced and approved in Cassady v. Norris, 118 Ark. 449, 177 S. W. 10, is as follows: "If the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the attack upon the judgment is collateral.” In Woods v. Quarles, 178 Ark. 1158, 13 S. W. (2d) 617, this court said: "A direct attack on a judgment is an attempt to amend it, correct it, reaffirm it, vacate it, or enjoin the execution in a proceeding instituted for that purpose.” The judgment of the probate court was pleaded by the appellants in bar of the appellee’s right to have the lands partitioned, and for an accounting for the proceeds derived from the land by the appellants. Although it was necessary to appellee’s success in the suit which he had filed that the judgment of the probate court be overturned, this did not change the proceedings from a collateral to a direct attack. Since this is a collateral proceeding, the judgment of the probate court could only be avoided for lack of jurisdiction, and that must be apparent on the face of the record. Blanton v. Forrest City Mfg. Co., 138 Ark. 508, 212 S. W. 230; St. L.-S. F. R. Co. v. Wardell, etc., Rd. Imp. Dist., 157 Ark. 557, 249 S. W. 17. See also Sullivan v. Times Publishing Co., 181 Ark., supra.
It is next contended by the appellee that, when Nannie Berry bought the lands from Chandler, the purchaser at the administrator’s sale, she must be deemed to have purchased it for herself and for the benefit of her co-tenants, and states his contention as follows: "In any event, the purchase of an outstanding title against the commu nity property by one tenant in common would inure to the benefit of all cotenants.” A number of cases of our court are cited to support this contention, among them being Britton v. Handy, 20 Ark. 381; Ferguson v. Etter, 21 Ark. 160; Moore v. Woodall, 40 Ark. 42; Clements v. Cates, 49 Ark. 242, 4 S. W. 776; Cocks v. Simmons, 55 Ark. 104, 17 S. W. 594; Sanders v. Sanders, 145 Ark. 188, 224 S. W. 732; Tompkins v. Tompkins, 151 Ark. 572, 273 S. W. 103. Without discussing these cases at length, it may be said they do not sustain the appellee’s contention. The general principle is laid down in Britton v. Handy, supra, which prohibits a purchase by parties placed in a situation of trust or confidence with respect to the subject of the purchase, and therefore no one may be permitted to purchase for his own benefit an interest where he has a duty to perform which is inconsistent with his character of purchaser. There was no relationship of trust existing between Nannie Berry and her brothers and sisters,.nor any duty to discharge the debt due by the intestate. She was not the purchaser at the administrator’s sale, but from the purchaser at that sale, and she bought from him the lands 10 years subsequent to the administrator’s sale. By reason of the sale by the administrator, an outstanding title was created, and, although Nannie Berry had been a tenant in common of her brothers and sisters subsequent to the death of Fannie Reed, their mother, and preceding their divesture of title by such sale, her purchase of the same from Chandler was not void, nor did that interest then acquired vest in her cotenants. Freeman on Cotenancy, § 156.
Moreover, a preponderance' of the evidence clearly indicates that Nannie Berry, the mother of the appellants, minors, held the land after her purchase from Chandler adversely against all the world. She, acting through her husband, exercised rights of dominion over it, such as cutting and removing the timber, selling the same and executing mortgages, which manifested exclusive ownership in her, and that she was claiming adversely to her former co-tenants is conclusively shown by litigation between them in 1911, when all her known brothers and sisters brought suit alleging that they and Nannie Berry were the sole heirs at law of Fannie Reed, deceased, and asking for a partition of the lands. This suit was resisted by Nannie Berry, and a decree rendered by the Ouachita Chancery Court denying the prayer of the plaintiffs in that case, and confirming title in Nannie Berry. In 1926 the same litigation was again instituted by the same parties plaintiff, and in the lower court and this court it was held that their rights were concluded by the judgment of the chancery court rendered in 1911. See Reed v. Rumph, 170 Ark. 258, 280 S. W. 357.
Our conclusion being that the judgment -of the probate court authorizing and approving the sale of the lands by the administrator is valid on collateral attack and served to divest the title of the heirs of Fannie Reed, and that title acquired by Nannie Berry thereunder was not for the benefit of her co-tenants, it follows that the decree of the trial court must be reversed, and the case is remanded with directions to dismiss the complaint for want of equity. | [
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Mehaffy, J.
The appellant, Hiram Caradine, was indicted, tried and convicted for robbery, and sentenced to three years in the penitentiary. To reverse the judgment of conviction he prosecutes this appeal.
Dr. C. W. Jones testified in substance that on the morning of January 13, 1934, at about 2:15 o’clock, he was awakened by some one at his door, and'when he went to answer the doorbell, he found a man on the porch who informed him that he had been sent to ask the doctor to come to Haskell immediately to see one Louis Westbrook, a patient of his, who, the man said, was seriously ill. The man said he was from Little. Rock and had been sent as a messenger. Dr. Jones asked him if he was going back there, and he said, “Yes,” and that he would wait for Mm at the drug store and ride back with him. The man helped Dr. Jones clean the ice off of the windshield and they drove on highway 67 at about twenty-five miles an hour. Dr. Jones then saw a car coming out behind them, and started speeding up, going about thirty-five miles an hour. They traveled faster than the car behind, and the man, who the doctor afterwards learned, was Virgil Smith, said he was visiting some boys there, and to let him out. They were then close to the old Hot Springs Highway, and at this time the other car was some distance behind. Smith backed out of the door and pulled a gun on the doctor, and told him to raise his hands, and cursed him, and then the other car came up from behind. Some one carne running up and ordered witness to get out on the side. The doctor had driven to the side of the road at the intersection to let Smith out. The other man and Smith robbed witness. They took from him a $5 bill and $2 or $3 in silver, searched him for a gun, and Smith came around the car and got in behind the wheel and drove out on the Hot Springs highway. Brooks Brown, the other man, backed up against the windshield and kept witness covered with his gun. The other car then followed them out. They were going about thirty miles an hour. They cursed the doctor. The car behind dropped back and then picked up again, and, as they got past where 'Connie Smith lived, they turned off on a side road and ordered witness to get out and they tied him to a tree. It was cold, and Dr. Jones asked them to turn his coat collar up. He got loose before they got out of sight and ran up the road to Connie Smith’s, and Smith brought him to town. Witness never did see the party who drove the car behind, but knew there was a third party driving the car, as two of them, Smith and Brown, got in the car with him, and the other car followed them about three miles. He does not know whether the appellant was in the ear or not. It was a cold night and there was ice on the windshield. The sheriff, Mr. Rucker, got witness’ car back. The car was worth about $450. Louis Westbrook lives at Haskell, and witness was their family physician. Witness had no way of identifying the man in the rear car. He did not know Smith and Brown, but had seen Caradine, the appellant, before. It was Saturday morning, January 13th, when Smith went to witness’ house.
While Dr. Jones did not identify Caradine, Fred Newcomb, Y. L. Landers, C. H. Womack, Mary Jane Holder and Mary Westbrook all knew the appellant and saw him in Benton on Friday afternoon and Friday nig'ht, and it is shown by some of these witnesses that he left the pool hall after twelve o’clock Friday nig’ht, and he and Smith and Brown got into a car and rode away, and the same car was seen with three men in it up until two o’clock Saturday morning.
The appellant testified very positively that he had nothing to do with the robbery, and that he left Benton at ten o’clock Friday night and walked home; that he went by his uncle’s house and spoke to him, and his uncle testified to the same facts.
The evidence also shows that Smith, Brown and the appellant had been together, and that ¡Smith and Brown had stayed at appellant’s house on Thursday night before the robbery.
Appellant contends first that the evidence was not sufficient to sustain a conviction. It is true that Dr. Jones did not recognize appellant, but Fred Newcomb' knew Caradine, and testified that Caradine, Smith and Brown came into his filling station Friday night about ten o’clock, and that he spoke to appellant; that they were in a car.
C. H. Womack testified that appellant and Smith and Brown were in his pool room until after twelve o’clock Friday night.
Y. A. Rucker, the sheriff, knew the three parties, and after the robbery he was called at about 3' :20 in the morning, and afterwards went to Oklahoma and found Dr. Jones’ car and also found Smith and Brown,
Mary Jane Holder testified that she knew the appellant and Smith and Brown, and saw Smith and appellant in Benton, Friday afternoon about five o’clock. They were in a car but witness did not know whose car. She had met both Smith and Brown through appellant.
May Westbrook knew the parties and testified that she was at the appellant’s home on Thursday morning before the robbery, and that Smith and Brown were also at appellant’s home, and that they all left together.
The testimony of the witnesses for the appellant is in direct conflict with the testimony of the witnesses for the .State. The witnesses for the State show that the appellant was in Benton after twelve o’clock; their testimony shows that he got in a car with Smith and Brown at 12:20, and the same car was seen by witnesses with three men in it, and while the witnesses did not recognize all three men, they did recognize the car and Smith as the driver. But, if the State’s witnesses are telling the truth, then the testimony of the appellant’s witnesses could not be true. If appellant was in Benton after twelve o ’clock, he could not have left there at ten o ’clock, and have been at his home, eight miles from there, at twelve o’clock.
The jury evidently believed the State’s witnesses, and, if they did, they could not believe the appellant’s witnesses, and it was a question for the jury, and not for this court.
We recently said: ‘ ‘ The testimony was entirely circumstantial, but, if believed, it was sufficient to justify the jury in finding the appellant guilty. The jury are the judges of the credibility of the witnesses and the weight to be given to their testimony. Therefore, in determining whether the evidence is sufficient to support the verdict, this court must consider the evidence in the light most favorable to the State, and, when this is done, it cannot be said that the evidence did not warrant the jury in returning the verdict of guilty. ’ ’ O ’Neal v. State, 179 Ark. 1153, 15 S. W. (2d) 976.
We think that the testimony of the State’s witnesses that appellant and Smith and Brown got into the car after twelve o’clock and were seen to drive on the streets of Benton, and that thereafter they saw the same car with three men in it, driven by Smith, was sufficient, if the jury believed it, to warrant the finding that the appellant was with Smith and Brown at two o’clock, just before Smith went to Dr. Jones’ door.
Appellant cites and relies on Bowie v. State, 185 Ark. 834, 49 S. W. (2d) 1049. The court there was discussing circumstantial evidence, and it said, among other things: “This character of evidence, however, has certain disadvantages. A jury has not only to weigh the evidence and the credibility of the witnesses, but to draw just conclusions from the circumstances in proof, and in doing so it may, by want of due deliberation, make hasty and false deductions and be swayed in its judgment by prejudice or partiality. This demands that in a case depending upon circumstantial evidence the circumstances relied upon must be so connected and cogent as to show guilt to a moral certainty, and must exclude every other reasonable hypothesis than that of the guilt of the accused.”
Among the circumstances relied on in this case are the following, about which there can be no dispute: the appellant was raised in Haskell community; he knew Dr. Jones and Louis Westbrook, and knew that Jones was Westbrook’s family physician; he was with Smith and Brown Thursday night at his home; he was with them in Womack’s pool hall Friday night until after twelve o’clock; he left the pool hall and got into the car with Smith and Brown; they drove away together, three of them being in the car; they were seen driving on the streets of Benton several times after that; the same car was seen with three men in it as late as two o’clock; Smith and Brown did not know Jones, and shortly after two o’clock Smith went to Jones’ door and told him that Westbrook at Haskell was seriously ill, and wanted him to go at once; he and Dr. Jones started in Dr. Jones’ car; another car followed them; when they got about one-half of the way to Haskell, Smith got out of the car and drew a gun and Brown came up from the rear car, and they robbed Dr. Jones and tied him to a tree, and then drove Jones’ car away, and the other car followed; Smith and Brown neither were in the other car; somebody was in the other car and started it and drove it, following Dr. Jones’ car.
We think the circumstances show conclusively that this driver of the other car was appellant. There can be no reasonable doubt that it was the appellant, if the witnesses for the State have told the truth, and, as to whether they have or not, the jury, and not this court, is the judge.
This court recently said: “The court correctly refused to direct a verdict for appellant, Oliver, for the reason that he was not present when the other two robbed Greren. It is true that Oliver was some distance away guarding the other victims, but it is also true that they were all three participating in the same common purpose, all being conspirators, having the common purpose of committing the crime of robbery. In such case the act of one would be the act of all.”
The appellant was convicted on circumstantial evidence, but there is no difference in the effect between circumstantial evidence and direct evidence. In either case it is a question for the jury to determine, and, if the jury believes from the. circumstances introduced in evidence beyond a reasonable doubt that the defendant is guilty, it is the duty of the jury to find him guilty, just as it would, if the evidence was direct. There is no greater degree of certainty in proof required where the evidence is circumstantial than where it is direct, for in either case the jury must be convinced of the guilt of the defendant beyond a reasonable doubt. Scott v. State, 180 Ark. 408, 21 S. W. (2d) 186; 2 Nichols’. Applied Evidence, § 4, 1065; Underhill’s Criminal Evidence, 14 and 16; Spear v. State, 184 Ark. 1047, 44 S. W. (2d) 663; Kellogg v. State, 153 Ark. 193, 240 S. W. 20; Williams v. State, 153 Ark. 289, 239 S. W. 1065.
It is next contended by appellant that instruction No. 2 should not have been given. It reads as follows: “You are instructed that if you should find from the evidence in this case beyond a reasonable doubt that the defendant, Hiram Caradine, in Saline County, Arkansas, and within three years next before the filing of the indictment of the case, did, as alleged in said indictment, by force or intimidation steal, take and carry away feloniously and violently the said automobile and seven dollars lawful money of the United States, the personal property of one Dr. €. W. Jones, you will find the de fendant guilty and fix Ms punishment in the State penitentiary at a period of not less than three years nor more than twenty-one years. ’ ’
No error was committed in giving this instruction. Maxwell v. State, supra.
This court does not pass on the credibility of the witnesses nor the weight of their testimony. These are questions for the jury.
We find no error, and the judgment is affirmed. | [
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Johnson, C. J.
This action was instituted by appellee against appellant in the circuit court of Miller County, seeking recovery upon a certain policy of insurance of .date December 27, 1926. Appellee alleged that, during the effectiveness of said policy, he was totally and permanently disabled prior to attaining the age of 60 years, and that appellant was due him under said contract the sum of $10 per month for the balance of his life; he further alleged that, by the terms of said contract of insurance, appellant agreed to waive all future premiums after total and permanent disability suffered; that appellant had breached its contract by failing and refusing to pay monthly installments on and after April 10, 1933; and by then and there demanding payment of the June, 1933, premium and by thereafter, on July 27, 1933, asserting and declaring a forfeiture of said policy for nonpayment of the June, 1933, premium.
Appellant answered the complaint and denied liability because of total and permanent disability, and its prayer was that the complaint be dismissed and that it have judgment for its costs.
The testimony introduced upon trial tended to establish the following facts:
That appellee suffered total and permanent disability prior to January 1, 1932, which was recognized by appellant by making monthly payments according to the terms of the policy up to and until April, 1933; that on the 10th day of April, 1933, appellant notified appellee that on and after that date it would discontinue payments upon the total and permanent disability clause of said policy of insurance and that it would not waive the payment of premium on said policy which would mature June 27, 1933. Appellee refused to pay the June, 1933, premium on said policy, and thereafter, on July 27, 1933, appellant notified appellee that his policy of insurance had lapsed because of nonpayment of the June, 1933, premium, and thereafter this suit was instituted.
But two contentions are urged upon us by appellant ,for reversal: first, that, under the facts and circumstances here presented, appellant did not renounce or repudiate its contract, therefore its liability is limited to monthly payments as they accrue according to the terms of the policy; secondly, that the verdict of the jury and judgment of the court are excessive.
Adverting to the first contention, it may be said that, according to the uncontradicted evidence, appellant, through its local agent, on July 27,1933, notified appellee that his policy of insurance had lapsed for nonpayment of premium on or prior to that date. This assumed position by appellant was an unequivocal renunciation and repudiation of its contract of insurance. This exact question was so decided by us in Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335. In the Phifer case, just cited, the insurance company wrote Phifer a letter in which it stated:
“It also appears from our records that this insurance lapsed by reason of the nonpayment of the Novem ber 17, 1921, premium, and is being continued on the extension feature. By referring to the permanent disability clause, it will be noted that, in order for it to be effective, all premiums should have been paid. ’ ’
In disposing of the contention there made as here, we said: “This evinced an intention on the part of appellant not to be bound by the terms of the contract, and was equivalent to a renunciation thereof. It stated in express words that the policy had lapsed. This denial of liability justified appellee, who was not in default, in treating the contract as breached and suing for gross damages, which he did.”
It therefore certainly appears that the facts of the instant case come squarely within the rule as announced in the Phifer case and must be governed by it.
Appellant contends, however, that the rule as announced in the Phifer case has been modified or impaired by the doctrine as announced in the more recent case of Mutual Life Ins. Co. v. Marsh, 186 Ark. 861, 52 S. W. (2d) 433, and that the facts and circumstances of the instant case fall within the rule as announced in the Marsh case. To this we cannot agree. The disposition of the Marsh case was bottomed upon Richards’ Law of Insurance, 4th Edition, and we quoted from § 342 thereof in part as follows: “And if with knowledge of the facts (referring to facts in reference to the breach of contract by the insurer) the insured elects to continue with the contract, he cannot subsequently exercise a second and inconsistent election to treat it as abrogated. ’ ’ In application of the rule of law thus stated to the facts as they appeared in the Marsh case, we stated: “In the instant case there was not a refusal to carry out the contract and a renunciation of the agreement, but,' in the course of the correspondence between the parties, when default was first made in the payment] there was simply the contention that, under the existing facts, the insured for the time being was no longer entitled to the monthly benefits. Recognizing that there had been no repudiation of the contract, appellee paid the premium January 25, 1932, and testified that the policy was still in effect, and in his complaint alleged that the contract had been put in force in January, 1922, and had remained in full force and effect thereafter, and was in full force and effect at the time of the filing of the suit. The appellant, in its answer, expressly disavowed any repudiation, but affirmed the contract, and merely contended that under its terms the appellee was not entitled to the monthly benefits. This makes this case unlike that of Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335, relied upon by appellee. In that case the plaintiff was allowed to recover the present value of the future benefit installments because the court found that there had been a total repudiation of the contract in that the insurer, by letter, had in express words denied liability on the claim that the policy had lapsed. The court said: ‘This letter evinced an intention on the part of the appellant not to be bound by the terms of the contract, and was equivalent to a renunciation thereof.’ ”
Thus it appears that the Marsh case was decided and disposed of upon the principle of estoppel. Marsh paid the January, 1932, premium upon his policy at a time when he had full knowledge that the insurer was denying liability for monthly installments. Marsh, by voluntarily paying the January, 1932, premium on his policy of insurance, thereby elected to waive the insurance company’s breach of the insurance contract in failing to pay the monthly installments. As thus construed, the Marsh case is sound in principle and does not conflict with the rule as announced in the Phifer case and the many other cases decided by us upon this subject.
It is not necessary to undertake a defense of the doctrine as announced in the Phifer case, but in passing it may be said that it is supported by the great weight of American authority. Richards’ Law of Insurance, expressly so states, and this authority was cited with approval by us in the Marsh case. Not only is a renunciation or repudiation of the contract inferred from the unlawful or unwarranted lapse of the policy, but the refusal of the insurance company to accept a premium thereon when due is a renunciation of the contract. Richards’ Law of Insurance states the principle as follows:
“Especially is the rule clear where the insurer not only repudiates the contract by his declaration that he will not pay in the future, but also violates a present obligation under the contract by refusing to accept a premium when due.”
Sometime subsequent to the Marsh case we again reviewed the authorities on this question, and expressly held that, where the insurer denies liability for disability benefits on the ground that the policy lapsed for default in payment of premiums, such renunciation of the contract authorized the insured to sue for gross damages and recover the present value of future installments. This holding gave full effect to the doctrine as announced in the Phifer case and other cases on the subject and clearly evinces the intentions of the court to adhere to its pre-’ vious holding. Ætna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S. W. (2d) 912. The unlawful and unwarranted demand for payment of premiums when none is due. in fact and the lapse of the policy on refusal to pay such demand is equally as reprehensible as the refusal to accept a premium when due and lapse, the policy because thereof.
Appellant’s second contention, that the verdict of the jury and the judgment of the court are excessive, is bottomed upon the argument that appellee, having been determined totally and permanently disabled, cannot be presumed to live the full expected time as measured by the American Experience Table of Mortality. This experience table of mortality was introduced in evidence along with other facts and circumstances as tending to show appellee’s expectancy of life, and we have many times held this table competent testimony. In addition to this table, Dr. Tyson, a witness for appellee, testified that appellee’s injuries would not necessarily shorten his life, and this evidence was corroborated by Dr. Kitchens. From the testimony thus adduced, the jury determined that appellee would live out the usual expectancy of life, and this finding of fact is supported by the evidence. Under long established rules of this court, we cannot substitute our judgment for that of the jury.
No error appearing, the judgment is affirmed.
Smith, McHaney and Butler, JJ., dissent. | [
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Butler, J.
On November 12,1920, tbe Missouri State Life Insurance Company issued its policy in favor of Dr. William Byers Case, under tbe terms of which, in consideration of the payment in advance of the sum of $200.25 and the further payment of like sums on or before the 12th day of November of each year thereafter, his life was insured in an amount of $5,000. The policy provided for total and permanent disability benefits in the sum of $50 per month, in consideration of which the insured paid, on the dates aforesaid, an annual premium of $16.45. The annual premiums were paid each year up to and including the policy year ending November 12, 1929. Notice of the maturity of this premium was given Dr. Case, and at the expiration of the thirty-day grace period, a letter was addressed to and received by him, advising that the policy was forfeited and at an end for the nonpayment of the premium falling due on the last-mentioned date. He was also advised of his right to reinstatement of the policy upon the performance of certain conditions. Dr. Case did not answer these letters.
In February, 1932, Dr. Case was committed to the State Insane Asylum, and on August 25, 1932, the attorney for the appellee notified the insurance company that the insured had been totally and permanently disabled from permanent insanity; that he had been so disabled since sometime in the summer of 1929, and was at that time a patient in the State Hospital for Nervous Diseases in the city of Little Eock. Demand was made for the payment of disability 'benefits at the rate of $50 per month and a request that the company furnish forms on which proof could be made. On September 6, 1932, the company, answering the notice and claim, advised that the policy had lapsed for the nonpayment of premium and interest due November 12, 1929. Shortly after this Dr. Case died in the State Hospital. Notice of his death was immediately given the company with demand for the payment of the death claim. In due time this claim was also declined by the company for the same reason assigned in its answer to the demand for monthly benefits made during the lifetime of the insured.
On the 13th of March, 1933, Miss Eobert Ella Case brought suit as administratrix of the estate of Dr. Case to recover disability benefits at the rate of $50 per month from May 1, 1929, to October 18,1932, the date of Dr. Case’s death, less the amount of a certain policy loan of $955 and interest due thereon, on the allegation that, while the policy was in full force and effect, the insured was, from May 1, 1929, until the date, of his death, totally and permanently disabled by reason of permanent insanity, to the extent of preventing him from engaging in any gainful occupation. It was also alleged that, because of the permanent insanity, no notice of the disability was given the company.
The General American Life Insurance Company, having assumed the liabilities of the Missouri State Life Insurance Company, was made a party defendant. The latter company filed its separate answer, admitting that it would be bound if a judgment was rendered against the Missouri State Life Insurance Company, which company answered denying the material allegations of the complaint except that all premiums had been paid on the policy to November 12, 1929, which it admitted, and defended, on the affirmative ground that the policy had lapsed for the nonpayment of the premium due November 12, 1929, and certain other affirmative defenses.
The case was tried and the jury found that Dr. Case was totally and permanently disabled from permanent insanity from July 1, 1929, to October 18, 1932, and returned a verdict in favor of the plaintiff in the sum of $872.04, the amount of the monthly benefits accruing between those dates, less the policy loan and interest. From that judgment is this appeal.
Here, as in the court below, the appellant insists there can be no recovery because of insufficient proof to show permanent and total disability at a time prior to the maturity of the premium due in 1929. It may be first stated that the insured, at the time of his death, was 61 years of age and had been for many years a popular and successful country practitioner, that being the only profession or vocation in which he had ever engaged except in 1920 when he abandoned it for a few months and attempted to write life, insurance. He soon gave this up, however, and returned to his practice of medicine. He appeared to be fairly happy and successful, except for a short period in 1920, up and until 1927. From that time on it seems he began to slip. Early in his practice he was located in Cleburne County where he was popular and had a considerable practice. In the early spring of 1919 he returned to that county, and it is from that time until his commitment to the State Hospital with which the testimony has principally to deal relative to his mental condition.
The appellant calls attention to the testimony to the effect that during that period Dr. Case discussed with some of the witnesses current subjects with apparent intelligence; that he spoke of his insurance and said that he was fearful it would lapse because of his in ability to meet the premiums; that he discussed with some of them his method of bookkeeping and his success in making collections for the practice he had done. Also that he made calls on patients and some witness who had called the doctor in his professional capacity testified that his services were satisfactory. This evidence, it is argued, was sufficient to show that Dr. Case was not incapacitated for any reason, or prevented from following his usual occupation, and therefore was not totally and permanently disabled to the extent that he could not pursue any gainful' occupation as provided for in the policy.
In construing provisions in policies relating to total and permanent disability sufficient to prevent the insured from engaging in any gainful occupation, the rule has been often stated to the effect that we do not give to these provisions a strict and literal interpretation, on the theory that a fair intention of the parties to the contract of insurance is that the insured shall receive indemnity when he is disabled to the extent that he is unable to carry on any business which, without the disability, he would be able to do or capable of engaging in. Therefore, to come within the meaning of the contract of indemnity, it is not required that the insured shall be absolutely helpless, but he is totally disabled when the infirmity from which he suffers renders him unable to perform all the substantial and material acts of his business or the execution of those acts in the usual and customary way. Aetna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; Mutual Life Ins. Co. v. Marsh, 186 Ark. 861, 56 S. W. (2d) 433, and cases there cited.
When we consider the testimony to which reference has been made in connection with all of the testimony in the case, we think the evidence preponderates in favor of, and sustains, the finding of the jury. Several of Dr. Case’s old friends, on his return to Cleburne County where he had formerly resided and practiced his profession, were scarcely able to recognize him because he was so changed. Formerly he had been a man careful of Ms personal appearance, amiable and loving the society of his fellows. Now he was unkempt, morose and retiring. He was unable to recall incidents of his young manhood which were likely to stand out in his memory. Those who called him in professionally, remembering his former skill, were greatly disappointed; he seemed to be uncertain what to do and neglectful of his patients. This was his condition as far back as April, 1929, and there is evidence to the effect that it continued throughout that year into 1930, when he became so helpless that his sister, Miss Case, took him to the home of his brother Ed Case, a farmer living near Heber Springs, where he was cared for, Miss Case paying her brother a reasonable amount for his care. Dr. Case remained there until he was committed to the State Hospital totally insane, where he remained in that condition until he died a few months after his admission. It was in testimony that he was suffering from a physical ailment which affected his brain, and in the opinion of the superintendent of the hospital this condition had lasted for several years. It is true that other expert witnesses testified that in their opinion Dr. Case was not insane in 1929, but, as we have stated, there is substantial evidence to sustain the finding of the jury.
The principal contention, however, is that urged in the second section of appellants’ brief that the proof of disability constituted a condition precedent to liability, and the failure to give such proof before the lapse of the. policy would prevent a recovery. To sustain this contention, appellants rely chiefly on the case of Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, 52 S. Ct. 230, conceded by them to be out of harmony with our decisions in the cases of Pfeiffer v. Mo. State Life Ins. Co., 174 Ark. 783, 297 S. W. 847; Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S. W. 366; and Mo. State Life Ins. Co. v. Holt, 186 Ark. 672, 55 S. W. (2d) 788. But the argument is made that our later cases seem to modify the rule announced in the cases above cited and evidence a feeling of this court “to get back into the line of authority following the Bergholm decision in the Supreme Court of the United States. ’ ’ The cases thought to be a modification of our previous decisions are: Ætna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S. W. (2d) 912; Atlas Life Ins. Co. v. Wells, 187 Ark. 979, 6.3 S. W. (2d) 533; N. Y. Life Ins. Co. v. Farrell, 187 Ark. 984, 63 S. W. (2d) 520; Business Men’s Assur. Co. v. Selvidge, 187 Ark. 1040, 63 S. W. (2d) 640; N. Y. Life Ins. Co. v. Jackson, 188 Ark. 292, 65 S. W. (2d) 904; Pac. Mutual Life Ins. Co. v. Dupins, 188 Ark. 450, 66 S. W. (2d) 284; Home Indemnity Co. v. Banfield Bros. Packing Co., 188 Ark. 683, 67 S. W. (2d) 203; Mass. Protective Ass’n v. Jurney, 188 Ark. 821, 68 S. W. (2d) 455.
We are asked to read, these cases, especially to refresh our memory by reading the opinion in the Farrell case, which, it is claimed, puts our court directly in line with the Bergholm case. We have re-examined these eases and fail to find anything which modifies or impairs the case of Pfeiffer v. Mo. State Life Ins. Co., supra, or the cases following and approving that decision; nor, indeed, in our opinion, is the Bergholm case in conflict with the doctrine of those cases for the reason, as stated in the case of Mo. State Life Ins. Co. v. Foster, 188 Ark. 1116, 69 S. W. (2d) 869: “In the case referred to (the Bergholm case) by plain and definite language the payment of premiums up to the filing of proof of disability was made a condition precedent to the right of recovery.” Such was not the provision relative to proof of disability in the Pfeiffer, Julian and Holt cases, supra. Nor, as pointed out by the appellee, was there any question of the insanity of the insured involved in the Bergholm case.
In Ætna Life Ins. Co. v. Davis, supra, the court, when considering- the contention that the failure of the insured to make proof to the insurer as required by the policy ninety days prior to the expiration of the policy defeats recovery, had before it the language of the contract. In that connection we said: “In order to sustain the contention of the appellant, something must be read into the policy which the appellant company failed to incorporate therein. The only restriction we find in the contract is that no recovery can be had for a period of time greater than six months previous to the date the proof of disability is made and received by the company where it is not made and received within ninety days after the disability has commenced. There is no mode specified by which the proof of loss is required to be made or how it is to be transmitted to the insurer.' From a fair consideration of the contract, the right to recover must be based on the total and permanent disability occurring during the life of the contract and not on any particular time when proof is made and received.” The point decided was that the failure to make the proof ninety days prior to the expiration of the policy did not defeat the right to recover for the reason that the proof was intended to give the insurer an opportunity to investigate the facts affecting the question of liability and the extent thereof, and that the end is served when the complaint is filed where no claim is made for benefits accruing before the filing of the complaint, or any claim made for penalty or attorney’s fee.
In Atlas Life Ins. Co. v. Wells and New York Life Ins. Co. v. Farrell, supra, suits were brought, not for breach of contract, but were based upon it. In the Farrell case the provision was: “Whenever the company receives due proof before default in the payment of premiums that the insured * * * has become wholly disabled by bodily injury or disease, etc. * * and then provided “that beginning with the anniversary of the policy next succeeding the receipt of such proof, the company will waive payment of the premiums, and one year after the receipt of the proof the company will pay the insured a sum equal to one-tenth of the face of the policy and a like sum annually thereafter during the life and continuing disability of the insured. ’ ’ These provisions were wholly unlike those involved in the eases which it is thought are modified by the Farrell case, and it will be noted, as stated 'by the court that the case being considered “is not a suit for breach of contract, but a suit on the policy, and the policy expressly provides when payment shall begin,”
An examination of the case of Business Men’s Acc. Ins. Co. v. Selvidge, supra, where it was held that the failure to give notice as provided in the policy barred recovery, shows that it was because by the express terms of the contract the giving of notice was made a condition precedent to the right of recovery.
In the Jackson ease, supra, it was alleged and proved that the insured became totally disabled in 1926 when the policy was in full force and effect; that the policy was extended until May, 1928, when it expired. Jackson died four years later and after his death suit was instituted. The court found that the permanent disability clause in the policy was identical with that in the Farrell case and controlled by that case.
In none of these cases, however, was the sanity of the insured brought in question, whereas in the case at bar the jury found on sufficient proof that the insured was totally and permanently disabled on account of insanity during the life of the policy. This finding, under the rule announced in Pfeiffer v. Mo. State Life Ins. Co., supra, obviated the necessity of making proof by the insured. The court there said: “If the insured has become permanently insane at the time that permanent disability attaches, it is evident that he is in no condition of mind to give the notice or make proof of his disability. * * * It should be said that permanent insanity, which causes, in whole or in part, permanent disability should operate to excuse the insured from giving the required notice. The very object and purpose of the policy, in a large part, would be defeated where the company inserted in the policy a condition which it knew that the insured could not perform in person and would not be in a state of mind to obtain its performance at the hands of others. There is nothing in the terms of the policy from which it might be said that it was the duty of the beneficiary to give the notice.”
In Old Colony Ins. Co. v. Julian, supra, the doctrine announced in the Pfeiffer case was reaffirmed and also in the later case of Mo. State Life Ins. Co. v. Holt, supra. In the Pfeiffer case the clause of the policy with respect to. giving notice of permanent disability was identical with the language of the policy in the case at bar. It was there held that the clause relating to notice was a condition subsequent and should be construed liberally in favor of the beneficiary.
In connection with the contention that the failure by the insured to make proof barred recovery, it was argued that, that not having been done by him, it.became the duty of the beneficiary under the facts in this case to give notice and make proof of the existence of the disability, and that her neglect in this regard precludes recovery. It is insisted that she knew, or ought to have known, of the mental derangement of her brother, Dr. Case, in 1929, or at least in 1930, and that the evidence makes it plain that she had ample opportunity to, ascertain his condition. It is argued that she was favored by him beyond his other kinsmen, and that the ties between them were particularly close. She was named the beneficiary in the policy, and doubtless Dr. Case rightfully preferred her to the other members of his family for the evidence is clear that she was the burden bearer of them all. It is also apparent, however, that she saw her brother infrequently and was never associated with him a sufficient length of time to arrive at a just conclusion as to his mental state. She knew he had had family troubles and business reversals; she knew that he was frequently discouraged, but there were no facts under her observation which might be rightfully said to be sufficient for her to know that he was insane. It is also contended that she knew all along that the policy carried disability benefits and that she had, herself, stated that she had been familiar with the policy for a good many years. We are referred to the pages of the transcript wherein it is claimed this evidence is to be found, but we fail to find any evidence to show that she was familiar with the terms of the policy or that she knew that it contained the disability clause and had knowledge of the provision regarding the. notice and proof of disability. The most that can be said is that she knew that her brother carried a policy of life in surance; that she knew that she was the beneficiary in such policy, for on occasions she was called on to join with her brother in the execution of notes to procure loans. But this was a matter to which she gave but little, attention. It is fairly inferable that the loans were to continue the policy in force and that she received none of the proceeds of such, although there is no definite evidence to this effect. She paid so little attention that she had entirely forgotten about the execution of one of these notes until it was called to her attention during the progress of the. trial of the case. The first time she became aware of the deterioration of her brother was when she carried him to the home of Ed Case, and then she was not aware of the cause of his condition. About that time she asked Dr. Case about his life insurance, and he told her that the policy had lapsed.
The evidence leads to the reasonable conclusion that Miss Case did not know that her brother was insane until a short time before he was committed to the asylum. Just when she came into possession of the policy is not shown, but it is likely that it was about that time, and it was then she- had the first intimation of what the rights of her brother might be under the policy. She wrote a letter in her brother’s name asking when the last premium had been due and .how the policy might be. reinstated. She is criticized because, in this and in subsequent letters to the insurance company, she did not inform it of the insanity of her brother. Whatever her reasons might have been for not conveying this information, it could certainly work no prejudice to the insurer, for it had renounced the policy long before.
Attention is also called to the fact that Miss Case did not offer to reinstate and did not reply to the appellant’s letters regarding reinstatement. There was no reason for her taking any action in this regard, for the requirement for reinstatement was that the insured must be in good health, and, of course, she knew that her efforts to reinstate would be futile.. As soon as she became aware of a possibility of liability to her brother for disability benefits, she began to investigate as to his men tal condition during 1929 and 1930. Based upon this investigation a letter was written by her attorney notifying the insurer of the insanity of Dr. Case and making demand of payment of disability benefits. It seems to us, assuming’, but not deciding, that it was her duty as beneficiary to give notice of the disability, this duty could only arise when she became aware that the insured was not in a mental condition to give notice himself or to make the proofs, and then not until she had had a reasonable opportunity to inform herself in regard to the facts on which claim of disability would be made.
In the third section of appellant’s brief it is contended that the plaintiff and the insurance company interpreted the contract as having lapsed, and that this interpretation is binding’ upon’ the plaintiff and prevents recovery. Of course, if Dr. Case was insane, he was in no condition to interpret the contract, and his interpretation that it had lapsed was not binding on him or any one else. Miss Case knew what her brother had told her as to the lapse of the policy, but at that time she. was not aware of his mental condition, nor of the terms of the policy. We see nothing in the letters written by Miss Case to the insurer that would be a basis for the contention that she had interpreted the policy as contended for by the insurer, or that she acquiesced in its interpretation. There can be no doubt that, if Dr. Case had been possessed of sufficient mentality to realize the extent of his disability, he would have made proof, but it is not often that an insane man realizes he is such, and surely in this case, had Miss Case known of the provisions of the policy and been aware of the rights of her brother thereunder, she, too, would have given notice.
The fourth contention is that the court erred in construing the policy as having been extended thirty-one days after November 12, 1929, and in so instructing the jury. No prejudice resulted for the reason that the court, in subsequent instructions, told the jury that before returning a verdict for the plaintiff, it must find that Dr. Case was totally disabled from permanent insanity at all times after October 1, 1929.
The fifth ground for reversal is that the amount of recovery was excessive. To support this contention we are again referred to the cases of this court thought to modify the rule relating to proofs of loss not being conditions precedent to attachment of liability. As we have observed, the Farrell and Wells cases were suits based on contracts, whereas in the case at bar there was a repudiation of the contract by the insurer — first, by a letter written to Dr. Case and later reaffirmed in a letter to the attorney for the appellee. Therefore, the rule in Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335, controls, in which a contention like that in the instant case was rejected, the court saying: “Appellant next contends for a reversal of the judgment because nothing was due appellee under the terms of the permanent total disability clause when this suit was commenced, claiming that liability under the clause did not begin until six months after the final proof of the injury and disability was made. In other words, that, liability did not begin when the injury and consequent disability occurred. The correct construction of the clause is that liability began with the disability. As stated above, and for the reasons given, the purpose of the policy was to compensate the insured during the period of permanent and total disability.”
The case of Smith v. Mutual Life Ins. Co., 188 Ark. 1111, 69 S. W. (2d) 874, in no wise alters the doctrine of Ætna Life Ins. Co. v. Phifer, supra. In that case the court held that the furnishing of proof of disability is not a prerequisite to the maintenance of suit for recovery, that right only being postponed until proof is furnished.
There is another reason why the contention of the appellant that the Bergholm case and recent cases of this court that a recovery under the provisions of the policy involved is limited to the payment of $50 six months after the proofs are received, and $50 each month thereafter during the life of the insured, etc., is not sound. That is not the language of the policy, nor is the language susceptible only of that construction. It is unlike the provision in Smith v. Mutual Life Ins. Co., supra, that the “first monthly payments being due on receipt of said due proof.” The provision there explicitly states not only when the company should commence the payments, but also the amount that would be first due which was a monthly payment. The disability clause in the case at bar provides that “the company will pay to the insured a life income of $10 each month * * *. The first payment of such income shall be made six months after receipt by the company of due proof of total and permanent disability.”
This court has often held that, unless it is inescapable from the language of the policy that notice of disability and proof thereof are conditions precedent to recovery, it is the existence of disability that fixes liability and not the proof thereof. The liability then, under the finding of the jury, began on July 1, 1929, and continued until the date of the death of the insured, October 18, 1932. Therefore, the income would be the total of the monthly payments, the right to recover which (had the insured not been insane) would be deferred until six months after the receipt of proof by the insurer. Smith v. Mutual Life Ins. Co., supra.
The assignment of error argued in the sixth section of appellant’s brief is that the court erred in directing the jury to deduct from the amount of its finding the loan of $955 with interest. If this was error, it was one of which the appellant cannot complain for the effect of it was to give to the plaintiff less than the amount to which she was entitled.
The seventh section of appellant’s brief is a contention-that the court erred in its rulings on the admissibility of evidence: first, in permitting the plaintiff to go into detail concerning the financial circumstances of the family and her expenditures in aiding Dr. Case; in permitting her to speak of the old age and feeble health of her mother and to recite certain calamities which had happened to the family. It must be remembered that appellants urged the contention that plaintiff had been negligent in asserting the rights of her brother, and this testimony was brought out to in part excuse her delay. It was shown that just about the time she discovered her brother’s insanity, another sister had died, and Miss Case was forced to take charge, of her little children and care for them; that her mother was old and infirm and demanded her care; that her brother, Ed, died of pneumonia about the time that Dr. Case was removed to the asylum, and that her sister, a returned missionary, was dying of cancer in a hospital at Nashville. It is small wonder, under these circumstances, that Miss Case did not neglect many things of vital importance, and certainly these facts were admissible to excuse in part her seeming neglect. It is argued that the court erred in permitting Miss Case to state that she did not realize the mental and physical condition of her afflicted brother prior to August, 1930, but that, looking back, she realized that he was mentally incapable of practicing medicine in 1929, and that he was insane. She had stated the facts upon which this opinion was grounded, and, though she was not an expert witness, having given the facts upon which her opinion was based, that opinion was not incompetent.
Judge Reed testified that he considered Dr. Case practically an idiot. He referred to a time in the early part of 1929. This testimony is argued to be incompetent as Judge Reed was not an expert witness, but, as in the case of plaintiff, his opinion was founded on facts and circumstances which he narrated to the jury. This is applicable also to the testimony of witness Ellison, complained of, to the effect that, if he had had occasion to use a doctor, he would not have called on Dr. Case.
Error is also assigned to the refusal of the court to permit Dr. 'Brown to state on cross-examination whether or not, in his opinion, Dr. Case was mentally incapable of knowing that his insurance premium was due; also to the refusal of the court to permit defendant to elicit from Dr. Ponder the same information sought to be proved by Dr. Brown on cross-examination; also the refusal to permit the physicians to answer a question as to whether or not Dr. Case had mental capacity sufficient to realize that his premium was due and his policy would be forfeited unless he gave proof of disability. The question before the jury was whether Dr. Case was totally and permanently disabled from insanity within the meaning of the policy, and it would be immaterial whether or not he was able to perform occasional acts relative to his business or to have an understanding of some of the matters relating thereto if his condition -was such that he was unable to perform the duties of his profession, or those of any other vocation for which he might be fitted, in the usual and customary way. This testimony also was irrelevant for the reason pointed out in the case of Pfeiffer v. Missouri State Life Ins. Co., supra, where the court said: “It seems that the lay-witnesses for appellees thought that Pfeiffer was sane at times because he was able to talk rationally about the matters which were presented to his mind. This was not sufficient. He must have been able to carry on the. ordinary affairs of life, and this meant that his mind must be capable of sustained effort so that he would comprehend such affairs as needed his attention, and not merely that he might talk with seeming intelligence upon a subject brought directly to his attention by some one.”
Certainly, from the evidence, it is inescapable that, whereas Dr. Case might have had sufficient mentality, when his attention was called to it, to know that he had not paid his insurance premium, and that this would lapse the policy, his mind was not capable of sustained effort or such that he could comprehend his own condition or the effect of the provisions of his policy, and give that attention to them which would be expected of an ordinarily sane person.
Finally, it is insisted in the eighth section of appellant’s brief that the court erred in the giving of certain instructions and in overruling certain others requested. We do not set out or comment upon these at length for the reason that the instructions given embodied the views we have expressed, and those requested were in conflict therewith.
On the whole ease, Ave find no prejudicial error. The judgment of the trial court is correct, and it is therefore affirmed. | [
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Baker, J.
This is a petition filed by Equitable Life Assurance Society of tbe United States praying that a writ of prohibition issue to prevent Richard M. Mann, judge of the Pulaski Circuit Court, Second Division, from further proceeding in the cause of Robert E. Mattison, non compos mentis, by Paul Belding, his next friend, against the Equitable Life Assurance Society of the United States.
The complaint in the cause in the second division of the circuit court of Pulaski County was filed on April 3, 1934. It alleges that R. E. Mattison, a non compos mentis, by his next friend, Paul Belding, is a citizen and resident in the city of Little Rock, county of Pulaski, Arkansas, and that the defendant is a corporation organized and existing under the laws of the State of New York, duly authorized to transact business of life and disability insurance in the State of Arkansas. Other facts are alleged as tending to show liability of the defendant to the plaintiff.
The complaint states that on January 1, 1921, plaintiff became physically and mentally incapacitated to such an extent that he was wholly unable to engage in any occupation or perform any work for compensation of financial value; that the plaintiff has at all times since that date been wholly, physically and mentally incapacitated to such an extent that he is now suffering total and permanent physical and mental disability.
Motion was filed by the petitioner named herein to quash the summons and service thereof on April 23,1934. It entered its appearance solely for the purposes set out in the motion, alleging that it had obtained permission to do business in the State of Arkansas pursuant to the provisions of § 6063 of Crawford & Moses’ Digest, and that it has stipulated that legal process served upon the Insurance Commissioner of the State of Arkansas shall have the same effect as if personally served upon the defendant within the State. It alleges that the policy upon which the plaintiff had filed suit was delivered to him in the State .of Tennessee, at a time when the plaintiff was a citizen and resident of the State of Tennessee, and that the same is a Tennessee contract. It also alleged that, at the time of the institution of the suit in the circuit court, Mattison was not a citizen or resident of the State of Arkansas, and at the time of the filing of the motion he was not such a citizen or resident.
On May 8 motion was filed in the case pending in the circuit court to substitute Paul Belding as guardian and curator of R. E. Mattison as party plaintiff, said Paul Belding having been appointed by the probate court of Pulaski County on the 7th of May, 1934.
Evidence was heard upon the motion to quash. Paul Belding testified that he met R. E. Mattison about the 15th of October, 1932, entered into a contract with him to file suit against the insurance company; that he made a trip with Mattison through the States of Mississippi and Alabama, and finally to Memphis, gathering affidavits as to his condition and in preparation for the suit. He testified that Mattison had a type of insanity called psychosis ; that he had been under treatment of Dr. Wallace at Western State Hospital in Bolivar, Tennessee, and had been paroled; that the parole had been issued prior to the time of making this trip; that Mattison had been in Little Rock, and endeavored to open a business at 812 Main Street; that on account of the fact that his health seemed to be again breaking, or a relapse seemed to be setting in, Mattison returned to the hospital at Bolivar, Tennessee, on the 7th of March; that he had left Little Rock voluntarily; that he is still in the hospital in Tennessee; that at the time he was attempting to go into business in Little Rock he had taken up his residence in that city as a citizen; that he had formerly lived in Little Rock, and had been in business as a tailor; that he, the witness, was with Mattison a great deal of the time, had conversed with him, and that Mattison had sufficient mental capacity to form an intent to make Little Rock his home; that it was the intention of Mattison to return to Little Rock when he felt sufficiently restored.
Dr. W. W. Wallace, a physician of the Western State Hospital at Bolivar, Tennessee, knew Mattison, and stated that he was first admitted to the institution on May 3, 1929, by reason of a previous adjudication of insanity; that he was paroled on August 15, 1931; that after his parole he returned to the hospital September 19, 1931, and remained there until September 25, 1933, on which date he left; that his condition had improved and five days later, on September 30, he was paroled.
The adjudication of insanity was had in the county court of Shelby County, and no subsequent adjudication was had upon any return to the hospital. His trouble was diagnosed upon entry to the hospital as manic depressive psychosis.
Harry Pfeifer, Sr., testified that Mattison had formerly been in the employ of Pfeifer’s in Little Rock; that he had been away many years; that he had returned to Little Rock sometime in the fall of 1933, and that he had.samples, and was going out soliciting orders; that he, Pfeifer, had a vacant store at 812 Main Street, and that he delivered the keys to Mattison and permitted him to occupy the store without charge for a time; that he kept the store until he made a trip down to Houston, Texas, or Dallas; that he talked with him on occasions, loaned him a few dollars at times, which he paid back; that Mattison was planning to put in a store or tailor shop and other shops in different cities, and that he was “going to make enough money to endow an orphanage.”
There was also offered in evidence the adjudication of insanity made by the county judge of Shelby 'County, Tennessee. Mattison was committed as a poor person, no one being' legally liable under the insanity law for his maintenance, and upon proof and a finding that he had been a resident of Tennessee for twelve months or more before he was adjudicated insane.
This statement, perhaps, does not include all of the facts, nor all of the testimony heard in circuit court, but such a material part thereof as to show the issues on the presentation of defendant’s motion to quash, and upon this hearing the learned circuit judge overruled the motion to quash. The sole point in issue, upon this motion to quash, was the place of residence of Robert E. Mattison, the plaintiff in the suit filed in the circuit court.
It is urged by the petitioner that, as the said Robert E. Mattison was a resident of Tennessee at the time of the filing of the suit in the circuit court for the second division of Pulaski County, Arkansas, that court did not acquire jurisdiction. If that were an undisputed question of fact, petitioner’s conclusions would be correct. "We realize that Western State Hospital, located at Bolivar, Tennessee, is a State institution intended to care for the insane in a particular district in the State of Tennessee, as fixed by law. Like most hospitals of the kind, the law of that State provides that, to be eligible to enter the said hospital, the patient must be a resident of the State, and, in this particular case, of the district in which it is located. It is urged forcefully that, since he was adjudicated to be insane in 1929, the presumption of insanity continues and particularly by reason of the fact that he has returned, and was at the time of the filing of the suit, and is yet, an inmate of that institution. However, he was paroled the last time in September of 1933, and the effect of such parole is such as to raise another presumption of restored sanity.
In a Tennessee case the court held, that the fact of insanity having been judicially ascertained, the law presumes its continuance until his restoration to sanity, or until a lucid interval, is established by evidence. In the same case the court also said: “But the record contains nothing from which we can presume with certainty that he was discharged by officers of the asylum because they judged him restored to his sanity, but we may regard as probable that such was the fact. If there was such evidence, we should hold it, at least, prima facie evidence of -restored sanity.” Haynes v. Swann, 6 Heiskell 560, 587.
The evidence in this cause tends to show that Mattison had sufficient intelligence to choose a place of residence, and that he chose Little Bock, Arkansas, as such place of residence.
But he voluntarily returned to the "Western State Hospital at Bolivar, nearly a month prior to the institution of this suit, and the most that could be said about his return and reentering the hospital in Tennessee is that there may be a presumption that he again changed his mind to return to Tennessee and reenter the hospital under his former commitment as a resident of that State, but that is a question of fact undetermined, except impliedly settled by the order of the circuit court in overruling the motion to quash.
Such is the face of the record presented to us upon the petition for a writ of prohibition. If this court should taire the allegations, as set forth in the complaint, alleging residence in Arkansas, and the motion to quash, as alleging the residence of the same party in Tennessee, and we then assume to try that issue of fact to determine the .jurisdiction of the original cause, our action would be, to that extent, a usurpation of the function of the trial court.
Justice Hughes, as early as 1892, upon application for a writ of prohibition, wherein the petitioner had alleged the fact that it could not be held to answer in a suit for liability in this State, said in regard to the questions therein raised: ‘ ‘ They must be first tried by the circuit court upon the pleadings and the evidence. This corporation says, for instance, that it is not guilty of publishing the libel charged, and, therefore, denies its liability to suit in courts of this State. This may be pleaded in bar, and given in evidence, and, if true, will defeat the plaintiff’s claim. It cannot, therefore, be properly a subject of plea to the jurisdiction. In this controversy we must take the plaintiff’s cause of action to be such as he alleged it to be in his complaint, otherwise we shall be trying the merits of the controversy for the purpose of determining whether we have power to try them. Nat. Condensed Milk Co. v. Brandenburgh, 40 N. J. L. 112. The truth of the allegations of the complaint, as well as the sufficiency of them to constitute a cause of action, are not questions now before this court.” American Casualty Co. v. Lea, 56 Ark. 511, 515, 20 S. W. 416.
This cause of action is transitory. If the facts are as they are alleged in the complaint, the action can be tried in the circuit court, where filed. Scottish Union & Nat. Ins. Co. v. Hutchins, 188 Ark. 533, 66 S. W. (2d) 616. In that case, the petitioner sought to try the question of residence of Bruce, the plaintiff, who filed the suit against the petitioner, and the court distinguished the case, upon the hearing of the petition for prohibition, from’ the case of National Liberty Ins. Co. v. Trattner, 173 Ark. 480, 292 S. W. 677.
In Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 751, 12 S. W. (2d) 421, this court said: “The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction ; but it is never granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Order of Ry. Conductors of America v. Bandy, 177 Ark. 694, 8 S. W. (2d) 448, and cases cited.”
In the Bandy case, the court said: “Where the 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, and prohibition is not the proper remedy.”
Again Justice Wood announces the rule in this way: “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 should be of opinion that the questions of fact have been wrongly determined by the court below, and, if rightly determined, would have ousted the jurisdiction. ’ Findley v. Moose, 74 Ark. 217, 220, 85 S. W. 238.
We feel that the foregoing cases announce the rule followed by this court, and that, while other cases in point could be cited, such citations are not necessary.
The writ of prohibition is denied. | [
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Mehaffy, J.
The appellees, who are the heirs at law of E. B. Treece, deceased, were, the owners of an undivided one-half interest in property- in Marshall, Searcy County, Arkansas, and the Bank of Marshall was the owner of the other undivided one-half interest. The Bank of Marshall, in October, 1929,. filed a suit in partition against the appellees, and against Patti Treece as guardian for said appellees, who were all minors at that time, in the. Searcy Chancery Court, asking for a partition of said property. A decree of partition was ordered by the court, and the property ordered sold, and the same was sold -by a commissioner, and the State Bank of Marshall became the purchaser for the sum of $8,000.
On May 1, 1933, Eugene Treece, Winston Treece and Burnelle Treece, adults, and Barton Treece and Francis Treece, minors, by their next friend, Claude Treece, filed suit in the Searcy Chancery Court against Marion Wasson, State Bank Commissioner, alleging that they were the sole heirs at law of E. B. Treece, deceased, and that the property was owned as above set out, and that, prior to the partition, the Bank of Marshall occupied said premises, and paid the guardian of the appellees $30 a month as rental for their interest in the property. They alleged that, after the bank purchased the interest of appellees in said property, A. A. Hudspeth, as cashier of the bank, applied $2,600 of the money belonging to appellees as payment of certain personal obligations owed by the guardian of appellees, and that the appellees received only $1,400 of the $4,000, and they asked judgment for $2,600, and that it be declared a lien on the undivided one-half interest of the property described.
A demurrer was filed and thereafter a substituted complaint. The appellant filed answer, and the cause was submitted on the following agreed statement of facts:
“It is agreed that the above-named plaintiffs are the heirs at law of E. B. Treece, deceased, who died intestate in Searcy County, Arkansas, before the year 1924, and that he left said children and a widow, Patti Treece, as his sole surviving heirs and widow.
“That in November, 1926, J. E. Treece died intestate, and that E. B. Treece was a son of J. E. Treece, and that among other property which the plaintiffs inherited from their grandfather’s estate was an undivided one-half interest in the lot and bank building standing thereon, in Marshall, Arkansas, described as follows:
“Beginning 45% feet west of the northwest corner of J. W. Coker’s house, known as the restaurant, thence south parallel with said house 140 feet to the W. L. Baker property, thence west 25% feet, thence north parallel with said house to a point due west of the place of beginning, thence east to place of beginning, being a part of block No. 7 in Marshall, Searcy County, Arkansas.
“That the Bank of Marshall, Arkansas, was the owner of the other undivided one-half interest in said lot and improvements, and in October, 1929, filed a suit in partition against the above-named plaintiffs as heirs at law, and against Patti Treece as guardian of said plaintiffs, who were all minors at said time, in the Searcy Chancery Court, asking for a partition of said property.
“That in March, 1930, a decree of partition was ordered by the court, finding that it could not be partitioned in kind, a sale of the property was ordered, and the same was sold by Sam Blair as commissioner to the First State Bank of Marshall, Arkansas, for the sum of $8,000, on June 16, 1930, which sale was approved by the court and the commissioner ordered to pay all costs and divide the. remainder according to the interest of the parties in interest.
“That the costs in said case were as follows:
Allowance to plaintiff’s attorney fee.....*.............................$200.00
Allowance to guardian ad litem for defendants......... 25.00
Commissioner’s fee......................................................................... — - 25.00
Clerk’s fees.............................................,...................................................... 9.25
Sheriff of Searcy County................................................................... 3.20
Sheriff of Pope County.......................................................................95
Printer’s fee.................................................................................................. 11.25
Total................-.........................................................................................$274.65
and the First State Bank of Marshall, Arkansas, paid said fees and allowances, canceled notes, stamping the same as paid, including interest to the total amount of $2,740.37, one of said notes for $50 principal and $1.76 interest, being the note of the plaintiff, Eugene Treece, and notes aggregating $2,688.61, being notes signed by Patti Treece, and held by said bank, and turned over to Patti Treece, as the guardian of the plaintiffs, $1,140, on. June 25, 1930.
“No payments were made by the purchaser, First State Bank, to the commissioner, except payment of court costs, and the settlement of the balance being between the cashier of the bank and Patti Treece, guardian of plaintiffs.
“That all of the $2,740.37 in notes canceled and marked paid by the bank and delivered to Patti Treece, were signed by Patti Treece alone and individually, except the $50 note signed by Eugene Treece as aforesaid.
“That the commissioner’s deed conveying all of said lands to the First State Bank was delivered by the commissioner to said bank and recorded on June 19, 1930, in book 26, page '8.
“Plaintiffs filed this suit asking for judgment against the State Bank Commissioner in charge of the First State Bank of Marshall, Arkansas, on May 1, 1933, asking judgment for $2,600, and that the same be declared a lien upon an undivided one-half interest in the lands aforesaid, with improvements.
“That the First State Bank of Marshall, Arkansas, became insolvent on September 1, 1931, and was taken over by the State Bank Commissioner, and has been in the hands of said State Bank Commissioner in liquidation ever since. The notice was published as required by law of the time within which claims could be filed under the law, and no claim was filed by the plaintiffs for $2,600 or any other sum, with the State Bank Commissioner, before the filing of this suit.
“Defendant in his answer made Patti Treece a party plaintiff, and had summons served on her, asking that judgment be rendered against her for the amount of the notes which the. bank settled with her for, in case judgment was rendered against it, and more than 20 days expired before the regular September term, 1933, of the chancery court, and no answer or other pleadings was filed by her.
“We hereby agree that this cause be submitted to the court for decree in vacation, upon this agreed statement of facts. ”
The chancellor found that the appellees were the sole owners of an undivided one-half interest in the land described, and found that the Bank of Marshall owned the other one-half interest, and that theretofore the bank had brought a suit, and that the property was not susceptible of division in kind, and ordered the same sold by the commissioner. He further found that $4,000 was due the appellees, and that there was a lien retained on the property for the purchase money; that there was at the time of the decree due appellees in principal and interest the sum of $3,231.80, and decreed that the appellees had a lien on one-half interest for the sum found to be due them, and if said sum was not paid within 10 days the property should be. sold for the purpose of paying said sum.
To reverse the decree of the chancery court, this appeal is prosecuted.
It is first contended by the appellant that this is a-collateral attack npon the judgment and proceedings had at a former term of court. It appears from the pleadings, however, that this is not an attack upon the judgment at all, but that the judgment is expressly recognized, and all the proceedings up to and including the sale are válid, and this suit is to enforce the lien of said judgment, to compel the purchaser to pay the price of its bid. The evidence shows that the partition suit was regular; that the court ordered a sale, and that the bank became the purchaser. It also shows, however, that the bank never paid any of its bid to the guardian for the heirs, except $1,140. It appears also that at the time of the sale the bank held the personal note of Patti Treece, and, instead of paying to Patti Treece as guardian of the minor heirs, it paid to Patti Treece individually, or rather it applied $2,600 of the purchase price to the payment of her individual note, leaving a balance due the heirs at that time of $2,600.
It is contended that the sale was conducted in compliance with the law, and that the sale, when approved by the court, and the deed made and approved by the court, passed title to the bank, and that this suit for that reason could not be maintained.
It was the duty of the commissioner when the sale was made, to collect the money. It is not claimed that he did this. In fact, the undisputed evidence shows that he collected but $1,140 from the bank.
This court has said: ‘ ‘ The payment of the purchase money was a prerequisite to the execution and delivery of the deed, which, not having been done, the sale should be set aside, the deed canceled, and declared void.” Phelps v. Jackson, 31 Ark. 272.
This court has also said, speaking of sale by an administratrix: “She executed a deed to Dyer, but received no money in payment, assuming to collect the sum bid in her individual paper. That she could not do.” Ambleton v. Dyer, 53 Ark. 224, 13 S. W. 926.
In the instant case the guardian sold the minors’ land and did not receive the money from the purchaser) but received her individual note which, she owed the bank for $2,600. This she had no right to do. Grooms v. Neff Harness Co., 79 Ark. 401, 96 S. W. 135; Briggs v. Collins, 113 Ark. 190, 167 S. W. 1114.
The bank was represented in all these transactions by its cashier. He had authority to represent the bank, and his actions are binding on the bank. 7 C. J., 549.
The bank knew that the property belonged to the minors; it knew that Patti Treece was their guardian.
“The rule in all these cases, that the purchaser or mortgagee is not bound to look to the application of the purchase money is subject to an obvious exception, that, if the purchaser or mortgagee is knowingly a party to any breach of trust by the sale, or mortgage, it shall afford him no protection. * * * It may be considered as the prevailing doctrine in the American courts that a purchaser from a trustee is not bound to see to the application of the purchase, money, except where the sale is a breach of trust on the part of the trustee, and the purchaser has, either from the face of the transaction, or otherwise, notice or knowledge of the trustee’s violation of duty; but, if he has such knowledge or notice as makes him a party or privy to the trustee’s misconduct, the property will be affected in his hands with the. trusts which previously attached to it.” Grider v. Driver, 46 Ark. 109.
The cashier of the bank here not only knew all the facts, but participated in the transaction, and, instead of paying the money to the commissioner for the minors, delivered to the guardian her individual note for $2,600..
It is contended by the appellant that the appellees failed to file any claim with the Bank Commissioner. They were, not required to file such claim, because they are seeking to enforce their lien against the property which the bank purchased and never paid for. They are not seeking any claim against the bank or the Bank Commissioner as such.
At the time of the partition suit and sale, all the appellees were minors. The oldest is now 22 years of age.
Section 6961 of Crawford & Moses’ Digest provides: “If any person entitled to bring’ any action under any law of this State be, at the time of the accrual of the cause of action, under 21 years of age, or insane or imprisoned beyond the. limits of the State, such person shall be at liberty to bring such action within three years next after full age or such disability may be removed.”
The appellees were not barred from bringing this suit. It is true, they, in the original suit, might have asked the court to order a resale of the property, but that remedy is not exclusive. They had a right to bring this action against the purchaser to compel him to complete the purchase by paying the amount of his bid. 35 C. J., 118.
The deed made, under the circumstances shown in evidence, was void, and the decree of the chancery court is correct, and therefore affirmed. | [
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Per Curiam.
A motion has been filed which prays that the opinion appearing in 182 Ark. 746, 32 S. W. (2d). 616, be annulled, and that the decree of this court rendered pursuant thereto be vacated. We there affirmed the decree of the Garland Chancery Court from which the appeal came. That opinion ivas delivered November 24, 1930. The ground of the motion is that no mandate has issued from this court, and it is insisted that, as the mandate cannot now issue, jurisdiction to enforce the decree has been lost, and the decree has become a nullity.
The disposition of the motion requires the consideration and construction of §§ 2177 and 2178, Crawford & Moses’ Digest, and of act 112 of the Acts of 1929 (vol. 1, Acts 1929, page 56-3), amending these sections.
Section 2177, Crawford & Moses’ Digest, reads as follows: “The Supreme Court may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all parties, and, when the judgment or order has been reversed, the Supreme Court may remand or dismiss the cause and enter such judgment upon the record as it may in its discretion deem just. Provided, when a cause is reversed and remanded the mandate must be taken out and filed in the court from which the appeal was taken by the plaintiff within one year from the rendition of the judgment reversing’ the cause; and, immediately upon the expiration of the period of one year after the judgment of reversal is entered, when the mandate is not taken out, the clerk of the Supreme Court shall, upon application of the party entitled thereto, issue an execution for all costs accrued up to the date of reversal‘in the Supreme Court and in the court from which said cause has been appealed. ’ ’
Section 1 of the act of 1929, sivpra, amended this section so that its provisions would apply to cases which had been affirmed as well as to cases which had been reversed, with the added proviso that the mandate must be taken out within one year from the date of the disposition of the appeal, “and not thereafter.”
Section 2178, Crawford & Moses’ Digest, reads as follows: “Upon the determination of any appeal or writ of error the Supreme Court may award execution to carry the same into effect, or may remand the record, with the decision of such court thereon, to the circuit court in which the cause originated, and order such decision to be carried into effect.”
Section 2 of the act of 1929 amends § 2178 by the addition of the following proviso: “Provided the mandate is taken out and filed with the court from which the ap-p peal came within twelve months from the determination of any appeal; and such decision shall be carried into effect within ten years from the rendition of the judgment, and not thereafter.”
It does appear that mandates must issue, if at all, within one year from the date of the disposition of an appeal, whether that disposition be the affirmance, modification or reversal of the judgment or decree appealed from, but it does not follow that the judgment of this court becomes a nullity unless the mandate does issue within twelve months after the disposition of the appeal. We would hesitate to give the legislation a construction producing this anomalous result unless that construction was plainly required. In our opinion, this construction is not only not required, but is not warranted, as this was not the purpose, nor is it the effect, of the amendatory act.
If the prevailing’ litigant desires to invoke the aid of the court from which the appeal came to enforce the judgment, he must file the mandate in that court within twelve months, as limited by § 2177 and the amendatory act. But the failure so to do does not annul the judgment or decree of this court. On the contrary, § 2 of the amendatory act of 1929 provides that “such decision shall be carried into effect within ten years from the rendition of the judgment, and not thereafter.” The judgment could not be carried into effect if the failure to have mandate issued within twelve months rendered it void. The power therefore inheres in this court to enforce its judgment, whether the mandate issued or not, and the motion is therefore overruled. | [
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Humphreys, J.
This is an appeal from a judgment of the circuit court of Pulaski County, Second Division, upon a subscription contract hied as a claim in the probate court of said county against the estate of Ed Monahan, Jr., deceased, and allowed, from which allowance ah appeal was duly prosecuted.
The subscription contract is as follows:
“Date, Nov. 18th, ’31.
“Name, Ed Monahan, Sr.
“Address, 412 W. Markham.
“I promise to contribute for the erection of the memorial organ at St. Andrew’s Cathedral the sum of $250, to he paid in annual installments of $50.
“It is understood that this donation is to be exclusive of my regular contribution for the support of my church.
“The Monahan Family “(Signed) Ed Monahan, Jr.
“Witness: Thomas A. Costello.
“In memory of Ed Monahan, Sr.”
The defenses interposed to the allowance of the claim were: First, that the contract on its face was for a gift, and that oral evidence was inadmissible to show that it was a subscription contract for a consideration; and, second, that Father Costello was not the proper person to make the affidavit to the claim.
(1) The contract, upon its face, shows that it was a contribution toward the erection of an organ at St. Andrew’s Cathedral, and not a promise to give an organ. The mutual undertaking of the several contributors furnished the consideration for the contract and rendered it binding upon the estate of Ed Monahan, Jr. Stone v. Prescott Special School District, 119 Ark. 553, 178 S. W. 399; David v. Chambers, 123 Ark. 293, 185 S. W. 443; Byington v. Little Rock Chamber of Commerce, 132 Ark. 361, 201 S. W. 122. It appears by the undisputed testimony that St. Andrew’s Cathedral accepted the subscription contract and erected the organ before the claim was filed.
(2) According to the undisputed evidence, Father Costello was duly appointed and authorized to take and collect subscriptions for the purpose of erecting an organ at St. Andrew’s Cathedral, so he was the proper party to make the affidavit in proof of the claim filed with the probate court. It is provided by statute that the justice of the claim against an estate may be made by the claimant, an agent, attorney, or other person. In the presentation of the claim, §§ 100 and 101 of Crawford & Moses’ Digest were fully complied with.
No error appearing, the judgment is affirmed. | [
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Butler, J.
Tell County is entitled to two representatives. Following the general Democratic primary, held August 14, 1934, the Democratic Central Committee of that county met on Auguist 17 after the election to cast the returns thereof and issued certificates of nomination for the offices of representative to E. H. Cheyne and to the appellee, J. A. Christian.
The appellant brought this suit against the appellee, contesting his right to the nomination. He alleged that E. IT. Cheyne, J. A. Christian and himself were candidates for the nomination for said two offices, and that the candidates received — Cheyne, 2,652 votes; appellee, 2,489; and the appellant 1,754; that the appellee was ineligible to hold the office of representative and was not entitled to the certificate of nomination. Certain specific grounds of ineligibility were alleged.
The appellee demurred to the complaint and, without waiving his demurrer, filed an answer thereto. The case was submitted to the court on an agreed statement of facts, and the court rendered a judgment in favor of the appellee on the merits without passing upon the demurrer. It was agreed as a fact that, according to the official election returns, the candidates received, respectively, the number of votes alleged in the complaint.
On appeal many authorities are cited by the appellant to sustain his contention that the appellee is ineligible to receive and hold the nomination for representative, and much of his brief is devoted to arguments supporting that contention.
At the threshold of the case, however, appellant is met with the proposition that, before he can contest appellee’s nomination, he must allege and show that he, himself, was entitled to that nomination. By act 38 of the Acts of 1933 it is provided that: “No person shall be declared the nominee of any political party at any primary election for United States Senate, United States House of Representatives, State, district or county office unless such person has complied with every requirement of all laws applicable to primary and other elec tions, and lias received a majority of all the votes cast at snch primary election for all candidates for such office. ’ ’
It seems to be the theory of the appellant that he has received a majority of the votes cast because the votes cast for an ineligible candidate should not be counted. We are unable to agree with this contention.
In support of the contention that he received a majority of the votes cast within the meaning of the law, appellant argues that the decisions cited by appellee have no application. We see nothing in the act relied on to support the argument made, but are of the opinion that the principles announced in those cases are unimpaired and applicable here. The only difference in our primary election laws with respect to the number of votes necessary to entitle a candidate to nomination, is that, before the act of 1933, a plurality of the votes cast for any given office entitled the candidate receiving the same to the nomination, while now the candidate to be nominated must receive “a majority of all the votes cast at such primary election for all the candidates for such office.” This change in the law in no wise affects the rule first announced in the case of Swepston v. Barton, 39 Ark. 549, that “when a vote for an ineligible candidate is not declared void by 'statute, the votes he receives, if they are a majority or plurality, will be effectual to prevent the opposing candidate being chosen, and the election must be considered as having failed.”
In Storey v. Looney, 165 Ark. 455-8, 265 S. W. 51, this court said: “The question necessarily presents itself in the beginning, whether or not appellant is in an, attitude to contest the certificate of nomination awarded to appellee. * * * In order to make a contest for nomination, appellant must ishow that he is entitled to the nomination himself, which he fails to do. * * *”
The doctrine announced in the case of Stvepston v. Barton, supra, was reaffirmed in Collins v. McClendon, 177 Ark. 44, 5 S. W. (2d) 734, in the following language:
“The real issue in this cause was, which candidate received a majority of the legal votes cast? If Barton did not obtain such a majority, but his competitor was in eligible, it by no means follows that he, as the next in the poll, should receive the office. ‘The votes are not less legal votes because given to a person in whose behalf they cannot be counted.’ ”
Of the total number of votes cast for representative the appellant received only 1,754, which, as appears from facts already stated, was not a majority. Therefore, under the principles announced in the easels cited, neither by the pleadings nor proof is the appellant entitled to wage this contest. As said in Saunders v. Haynes, 13 Cal. 145, quoted with approval in Collins v. McClendon, supra: “An election is the deliberate choice of a majority or plurality of the electoral body. This is evidenced by the votes of the electors. But if a majority of those voting, by mistake of law or fact, happen to cast their votes upon an ineligible candidate, it by no mean's follows that the next to him oh the poll should receive the office. If this be so, a candidate might be elected who received only a small portion of the votes, and who never could have been elected at all but for this mistake. The votes are not less legal because given to a person in whose behalf they cannot be counted; and the person who is the next to him on the list of candidates does not receive a plurality of votes because his competitor was ineligible. The votes cast for the latter, it is true, cannot be counted for him; but that is no reason why they should, in effect, be counted for the former, who, possibly, could never have received them. It is fairer, more just, and more consistent with the theory of our institutions, to hold the votes so cast as merely ineffectual for the purpose of an election, than to give them the effect of disappointing the popular will, and electing’ to office a man whose pretensions the people have designed to reject.”
The result of our views is that the judgment of the trial court is correct, and it is therefore affirmed. | [
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Mehaffy, J.
On April 17, 1933, appellee’s intestate, Heber Clark, was struck and killed by a train of the Missouri Pacific Railroad Company at the town of Higginson, White County, Arkansas. The appellee, administratrix of the estate of Heber Clark, deceased, brought suit in the White Circuit Court for damages for the death of said Heber Clark, alleging that he was struck and killed by the negligence of the appellants and their employees.
Some time before eleven o’clock on the morning of April 17, 1933, Heber Clark drove his automobile to a point on the highway near the crossing. The highway at that place ran parallel with the railroad track. There were four tracks, all running in the general direction of north and south. After parking his car on the highway, which was on the west side of the tracks, Clark crossed over the tracks and went over to a side track to inspect a. car of crushed rock which was standing on the side track, this track being the farthest east of the four tracks. The track farthest west was the main line. A Mr. Crawford had parked his car just before Clark arrived, and had gone over to inspect the car of crushed rock. Clark parked his car just behind Crawford’s car, and walked across the tracks to where the car of crushed rock was standing on the side track. Clark and Mr. Crawford had some conversation, Clark inspected the car and then started back across the tracks to his automobile. The car of crushed stone was some distance north of the depot, and some distance north of where Clark’s car was parked, and a short distance north of the car of crushed stone was a berry shed on the east side of the tracks, and just north of the berry shed was a crossing. Clark, in walking back from the car of stone to his automobile, walked diagonally across the tracks facing south or southwest, and a fast freight train came from the north and struck and killed Clark. The track was straight for more than three miles, and there were no obstructions. There was a conflict in the testimony as to whether any warning was given by sounding the whistle or ringing the bell at the crossing.
Appellee’s evidence tended to show that Clark was walking diagonally across the tracks, apparently oblivious to the approach of the train; that the train was running approximately 45 miles an hour and struck Clark, as one witness said, “on the back part of his right shoulder.”
The evidence tended to show that Clark was earning from $3,000 to $4,000 a year. He was 36 years old, and left surviving him his widow and two sons, aged 16 and 12 years.
The evidence offered by appellants tended to show that the track was straight for 3y2 miles; that the train was going 35 or 40 miles per hour; that it was a fast through freight. One of appellants’ witnesses, a section hand, testified that he saw the man walking toward the train with his head down and said: “The man is going to walk into the train.” He said it looked to him like Clark did not see the train and did not know there was one coming; that the brakes had not been applied before the train struck Clark, but they made a good deal of noise after that, and the train stopped pretty quickly.
The engineer operating the train testified in substance that north of the depot at Higginson the Bock Island track crosses the Missouri Pacific tracks, and some distance north of this crossing there is a road crossing the Missouri Pacific tracks. This road crossing is 500 or 600 feet north of the Bock Island crossing. He testified that he sounded the usual alarm for the crossing and started whistling and turned on the air bell, and continued this until the fireman came over and shook him and told him they had hit a man. He testified that there must have been five or ten seconds between the time he finished whistling for the crossing north of town, and the time when he started whistling for the crossing south of the depot; that at the speed they were going it would take approximately 1,000 feet to bring the train to a stop; that he was keeping a proper lookout down the track, and that, if a man had been coming toward the track on his side of the train and had been the same distance from the track that the berry shed was, he could not have stopped the train so as to avoid hitting him. He also testified that by the use of the emergency stop you could stop a train in about 700 feet. He did not see Clark before he was struck, and he testified that it was difficult to tell whether there is any one on the track much more than a half mile ahead. He did not see the man and did not sound any alarm blasts. There was an interval of some 5 or 10 seconds when no whistle was sounded. A train running 40 miles an hour will run about 40 feet in a second.
The fireman testified substantially the same as the engineer as to the signals, and that he was on the left-hand side of the engine, and keeping a lookout down the track. He noticed some cars on the siding but did not see anybody walking on the track. He then got down to look into the firebox, and said he was down there three or four seconds. As he raised up, he noticed two men on the car, and about that time he saw that they had struck some object, but could not tell what it was. He also testified that, if they had discovered Clark on the track as they went over the crossing north of the berry shed, it would not have been possible to stop the train before the point where they struck him at the speed they were going. He saw the object they hit about the time they struck it.
It is earnestly contended by the appellant that the evidence is not sufficient to sustain the verdict. This suit was brought under § 8568 of Crawford & Moses’ Digest, which reads as follows:
“It shall be 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 employee of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care after the discovery of such peril, and the burden of proof shall devolve upon such railroad to establish the fact that this duty to keep such lookout has been performed.”
The above statute was enacted in 1911, and one of the early cases construing the statute was the case of St. L. I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431, 155 S. W. 510, decided by this court first in 1913, and tbe same case was here again in 1914, and this court said in tbe case on tbe last appeal:
“Tbe effect of our holding in the former opinion is that where proof has been introduced by the plaintiff of an injury to a person by the operation of a train under such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided if a lookout had been kept, then the burden is shifted to. the railway company to show that such lookout was kept.” St. L. I. M. & S. Ry. Co. v. Gibson, 113 Ark. 417, 168 S. W. 1129.
The undisputed evidence in this case shows that the track was straight for more than three miles, and level, and there was nothing to obstruct the view, nothing to prevent the engineer and fireman from seeing Clark on the track, if they had kept a lookout. The undisputed evidence also shows that they could see a person on the track for one-half mile if they were keeping an efficient lookout. It is true that the engineer swears that he. was keeping a constant lookout, and that he did not see any one going toward the track. He was on the right side of the engine, and of course it would not be. possible for him to see any one on the other side of the track, after the engine had gotten close enough to the person to ob: struct the view. But certainly, when he was a half mile away and there was nothing to obstruct his view, he could have seen a person on, or approaching’, the track. However, the fireman was on the left side of the engine, and he testified he was keeping’ a lookout, and also testified that he could have seen a person a half mile down the track; and yet each of these witnesses testifies that he did not see Clark. The. fireman testified that he saw the object as they hit it, but did not know then that it was a man. The evidence of the engineer and fireman conclusively shows that the track was straight for more than three miles, and that there was nothing within that three miles that would obstruct the view, and it appears certain, if they had been keeping a proper lookout, they could and would have seen Clark before striking him.
The undisputed proof also shows that by using the emergency brake the train could have been stopped in 700 feet. If they had seen Clark on the track, they would have known from his conduct that he was not aware of the approach of the train, and could have exercised care and stopped the train if necessary. However, if they had seen him as far ahead as the evidence shows they could have seen him, it would probably not have been necessary to stop the train; they could have checked its speed, and could have sounded the alarm blasts to attract his attention. But they did nothing to avoid the injury. They did nothing because they say they did not see him.
The evidence was sufficient to warrant the jury in finding that the engineer and fireman should have discovered the peril of Clark in time, by the exercise of ordinary care, to have avoided the injury. If they had discovered him, they would necessarily have discovered that he was going diagonally across the tracks with his back to the train, with no indication that he knew it was approaching.
Appellant calls attention to the case of St. L.-S. F. Ry. Co. v. Cole, 181 Ark. 780, 27 S. W. (2d) 992, and calls attention to the fact that the court held in that case under § 8562, when injury was caused by the operation of a train, that it made a prima facie case of negligence. There is no contention here that there was a prima facie ease of negligence, or that § 8562 is involved at all. Under that section, railroad companies are made responsible for all damages done or caused by the operation of a train, and this court has held many times that under that section, when the evidence shows that injury was caused by the operation of a train, a prima facie case is made. But we also said in the Cole case, sitpra: “The duty of the railroad to take precautions begins when it discovers, or should have discovered, the peril of the traveler. So here the railroad company should have kept the lookout, and is chargeable with such knowledge as it would have had, had the lookout been kept; but, if the lookout had in fact been kept and appellee’s presence near the track discovered, this would have imposed no duty on the railroad to stop the engine or to take other precautions until the peril of the traveler was discovered. ’ ’
Under § 8562 we have said: “When the evidence shows that the 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.” St. L. S. W. Ry. Co. v. Vaughan, 180 Ark. 559, 21 S. W. (2d) 971.
In discussing the lookout statute we have recently said: “But now the company is liable if, by proper care and watchfulness, it could have discovered and avoided the dang’er. * * * It was the evident purpose of this act to provide a different rule of liability against a railroad company causing an injury by the operation of its trains, in case of failure to keep a lookout for persons on its track, than was prescribed by the old act, which required the same lookout to be kept, and place the 'burden of proof upon the railroad company in case of an injury, to establish the fact that the duty to keep a lookout had been performed. It was not intended, however, that, upon proof of the killing of a trespasser by the operation of a train, the presumption should arise that the killing was negligent and the plaintiff entitled lo recover damages without showing anything further, and casting the burden of proof upon the company to show that it was not guilty of any negligence, causing the death, as declared in said instruction numbered 1.” Kelly v. DeQueen & Eastern Rd. Co., 174 Ark. 1000, 298 S. W. 347.
It will therefore be seen that we have distinguished § 8562 from § 8568, and that under § 8562, when injury is shown to have been caused by the operation of a train, the railroad company is presumed to be guilty of negligence. Under § 8568, where a trespasser is killed on the track, there is no presumption of negligence on the part of the railroad company, but the plaintiff must show a failure to keep a lookout, and show that if a proper lookout had been kept, the railroad company could, by the exercise of reasonable care, have avoided the injury.
Appellant argues that the uncontradicted proof shows that a lookout was being kept. The uncontradict ed proof also shows that, if such lookout was being kept, the engineer and fireman could have seen Clark for tmore than a quarter of a mile.
It is next contended that the appellee was not entitled to recover under the doctrine of discovered peril. The engineer and fireman testify very positively that they did not discover Clark’s peril, and the question of discovered peril is not involved. The question is whether, by keeping an efficient lookout, they could have discovered Clark’s peril in time to have avoided the injury, and there is sufficient evidence on this question to warrant the jury in finding for appellee.
We have carefully examined the instructions, and have reached the conclusion that there was no error in instructing the jury.
It is next contended that the verdict is excessive. There was a verdict for $30,000. The evidence shows that Clark was 36 years of age when killed, and had a life expectancy of 31 years. His wife was 35 years old. He had two sons, aged 16 and 12 years. The evidence shows that he was strong, healthy, active, able-bodied and industrious, and had been earning an average of $3'50 per month. We think there is sufficient evidence to justify the verdict, and the case is therefore affirmed. | [
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Johnson, C. J.
Appellant was indicted by the Clark County Grand Jury for the crime of first degree murder for the killing of one Barefield. Upon trial he was convicted as charged in the indictment and his punishment assessed at life imprisonment in the State penitentiary, and this appeal follows.
The evidence upon behalf of the State tended to show, and the jury was warranted in finding, the following :
On March 8, 1933, appellant and his wife were together in the business section of the town of Gfurdon, and visited in the law office of Ed Haney about 3 or 4 o ’clock in the. afternoon. Leaving this place, which was upstairs on the east side of the railroad tracks, they traveled in a westerly direction across the railroad tracks to the business section on the west side. Barefield, the deceased, likewise was in Gurdon on this date, and both appellant and Barefield evidently contemplated trouble. About 5 o’clock appellant and his wife passed Barefield while all parties were traversing a walkway — appellant and his wife proceeding in a westerly direction and Bare-field in the opposite direction. From this point the evidence is in irreconcilable conflict. That upon behalf of the State tended to show that Barefield endeavored to pass around Mrs. Newton when appellant drew his gun and began firing upon Barefield, and, after he had fallen prostrate to the ground, appellant again fired into his body. The testimony upon behalf of appellant tended to show a persistent and aggravated interference by Bare-field with the domestic relations between appellant and his wife covering a long period of time, which, if believed by the jury, would have certainly warranted a much milder verdict than the one returned. It would serve no useful purpose to set out in detail the testimony of witnesses, and the above statement will suffice to show the outstanding facts and circumstances surrounding the killing.
Appellant’s first contention for reversal is that the trial court erred in overruling his application for change of venue. The testimony heard by the trial court upon this application is not preserved in the bill of exceptions, therefore, under a long line of decisions of this court, we can not review his findings of fact. In other words, in the absence of the testimony heard by the trial court, we must presume the evidence heard warranted the conclusion reached. Jackson v. State, 54 Ark. 243, 15 S. W. 607; Strong v. State, 85 Ark. 536, 109 S. W. 536; Duckworth v. State, 86 Ark. 357, 111 S. W. 268; Spurgeon v. State, 160 Ark. 112, 254 S. W. 376.
The next assignment of error relates to the action of the trial court in continuing the cause and setting it for trial in the absence of appellant. When the cause was continued and set for trial, appellant was at liberty upon bond, and was therefore voluntarily absent. The record discloses that the court set the case for trial in the absence of the defendant, but in the presence of his attorneys. In Darden v. State, 73 Ark. 315, 84 S. W. 507, we stated the rule, reading from the second headnote, as follows:
“A defendant who was out on bail cannot complain that the examination in chief of a witness for the State was conducted in his absence if he was voluntarily absent, and his attorney was present, and if defendant never asked that the examination in chief of such witness be retaken.”
The rule as stated in the case, supra, has been consistently followed by us since its rendition. No error is made to appear because of this assignment.
Next, it is urged that the trial court erred in qualifying the jurors, Ed Williams, Otis Francis, C. W. Cypert and Carrnie Cox because they had served upon a regular panel of either the grand or petit jury within the past two years. This assignment of error is made to appear by the affidavit of one of the attorneys for appellant filed after the verdict of the jury was returned. The bill of exceptions does not disclose that the named jurors were interrogated in reference to their services as jurors within two years prior to their acceptance in this case, therefore their disqualification, if any, does not appear. It is the established doctrine in this court that it must appear from the bill of exceptions that the juror imposed himself upon the court and defendant by misrepresenting the facts, and this question can not be raised after the trial, when the defendant did not avail himself of the opportunity, on the examination of the jurors on their voir dire, to ascertain if they possessed the necessary qualifications. Doyle v. State, 166 Ark. 506, 266 S. W. 459; James v. State, 68 Ark. 464, 60 S. W. 29; Tell v. State, 129 Ark. 180, 195 S. W. 32; Patton v. State, ante p. 133, 70 S. W. (2d) 1034. It does not appear from the bill of exceptions that the named jurors imposed themselves upon the court or appellant, therefore no prejudicial error is made to appear.
Appellant next urges that the trial court erred in permitting the jury to separate after final submission of the cause. We have construed § 3187, Crawford & Moses’ Digest, as vesting in the trial courts discretionary power in reference to the enforcement of the rule against the separation of the jury prior to or after submission of the cause to the jury. Johnson v. State, 32 Ark. 310. In the later case of Reeves v. State, 84 Ark. 569, 106 S. W. 945, we stated the rule as follows:
“The rule announced in the cases above referred to, which were cases where the court had ordered the jury kept together, is that in criminal cases, where evidence is adduced tending to show that the jurors have been exposed to improper influences, the burden is upon the State to show that they were not in any way influenced, biased or prejudiced by such exposure, and that, in the absence of such showing* by the State, the verdict will be set aside. The rule is otherwise where the. court exercises its discretion in permitting the jurors to separate. In such eases the burden is upon the defendant to show that they were improperly influenced by the exposure.”
Appellant makes no showing that the jurors while separated were exposed to improper influences; therefore no prejudicial error is made to appear by this assignment.
Finally, it is insisted that the trial court erred in giving and refusing to give certain instructions. We have carefully considered all requested, granted and refused instructions and have concluded that the issues presented were properly submitted, and no error was committed in this regard.
It follows that the judgment must be. affirmed. | [
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Smith, J.
This cause was tried in the court below upon the following agreed statement of facts:
‘ ‘ Stipulation.
“It is hereby stipulated between the parties hereto, through their respective solicitors, that this cause may be submitted upon the following Agreed Statement of Pacts.
“Agreed Statement of Pacts.
“The Rice Growers’ Co-Operative Association had a general deposit with the Bankers’ Trust Company, and had maintained a general deposit in said bank for sometime prior to the transaction herein complained of, and on October 2,1931, had on deposit $25,084.31, in the form of a general checking account.
“That the Rice Growers’ Co-Operative Association deals in buying and marketing rice and, in making sales of rice, it was its custom to draw drafts on the consignees of the rice, with bills of lading attached, and would deposit these drafts, with the bills of lading attached, in the Bankers’ Trust Company and take credit therefor on its general checking account.
“That the Bankers’ Trust Company, through its officers, suggested to the Rice Growers’ Co-Operative Association that some security or margin he placed with said bank to protect the bank from any losses that might occur by reason of the bank giving immediate credit for such drafts and the consignees failing or refusing to pay the face value of the drafts.
‘‘ That, at the suggestion of the bank, the Rice Growers ’ Co-Operative Association authorized the bank to charge its general checking account with the. sum of $3,000, for the purpose of securing the bank against loss on the draft collections. Thereupon the bank, of its own motion, made out the following charge ticket against the association’s general checking account, to-wit:
“BANKERS’ TRUST COMPANY,
“Little Rock, Ark., October 2, 1931.
“CHARGE
“Arkansas Rice Growers’ Co-Operative Ass’n., “Stuttgart, Ark.
“Covering Certificate of Deposit payable to ‘Ourselves Account Margin'Arkansas Rice Growers’ Co-Operative Assn, drafts.’ $3,000
“Charge made by BB (Signed) BB.
“A copy of this charge ticket was transmitted, in due course, by the bank to the association, and the association accepted and retained the same.
“On the said October 2, 1931, the Bank issued a certificate of deposit, as follows:
“CERTIFICATE OF DEPOSIT.
“Little Rock, Ark., October 2, 1931. No. 3587 “BANKERS’ TRUST COMPANY $3,000
81-25
“Ourselves account margin Arkansas Rice Growers’ Co-Operative Assn, draft has deposited with the Bankers’ Trust Company $3',000 & 00 cts. dollars in current funds, payable to the order of themselves, demand after date with interest to maturity only at the rate of 2 per cent, -per annum, but subject to thirty days’ prior notice of withdrawal and the return of this certificate properly -indorsed. If at the request of the owner hereof and with the consent of said bank this certificate shall be paid before maturity, no interest shall be paid thereon.
“J. L. Spence, Tr.
‘ ‘ Countersigned: ‘ ‘ Assistant Cashier.
“D. Majors. Auditor.
' “Not subject to check.
“On February 27, 1933, the Little Rock Clearing House Association, of which the Bankers’ Trust Company was a member, took action, with the approval of the Governor and the Bank Commissioner, whereby all deposits of the members of the Clearing House Association were forthwith to be restricted, as to withdrawal thereof, so that the only part of any deposit thereafter withdrawable was 5 per cent, or $15, respectively, thereof, whichever was the larger, such action being taken pursuant to § 7 of act 60 of the Acts of Arkansas of 1933. The said restriction of withdrawals was validated by § 1 of act 96 of the Acts of 1933.
“On May 1, 1933, at the .request of the board of directors of the Bankers’ Trust Company, the Bank Commissioner duly took charge of its affairs, for purposes of management, under act 88 of the Acts of 1933. On said May 1, 1933, also pursuant to said act 88, the Bank Commissioner reorganized the said Bankers’ Trust Company by the creation of a new bank at Little Rock, Bankers’ Commercial Trust Company, to which certain of the assets of the Bankers’ Trust Company were sold and transferred, in consideration of Bankers’ Commercial Trust Company assuming 50 per cent, of the then remaining restricted balances of Bankers’ Trust Company’s deposits.
“All drafts of the Rice Growers’ Association for which it had received credit from Bankers’ Trust Company prior to the said May 1, 1933, were paid in full in due course, and the said $3,000 security has ceased to be necessary for the protection of the Bankers’ Trust Company. The Rice Growers’ Association was entitled to withdraw $150, as the 5 per cent, permitted to be withdrawn by the Clearing House Association action, and was furthermore entitled to 50 per cent, of the difference between $3,000 and said $150, by reason of the assumption of Bankers’ Commercial Trust Company 50 per cent, of such difference amounting to $1,425. The Rice Growers’ Association has not, in fact, withdrawn the said $150 or the said $1,425, but both said amounts are available to it, so that the actual amount in controversy in the within suit is $1,425. The failure of the Rice Growers’ Association to withdraw the $150 and the $1,425 assumed by the Rankers’ 'Commercial Trust Company was due to the fact that some of its drafts were, until recently, outstanding.
“It is agreed that the Rice Growers’ Association will not estop itself in this suit by accepting the $150 and $1,425 admittedly available deposit.”
Upon this statement of facts it was ordered and decreed that the claim of plaintiff, Arkansas Rice Growers ’ Co-Operative Association “he and it hereby is allowed as a prior claim (against the Bankers’ Trust Company and Marion Wasson, as Bank Commissioner in charge thereof) in the sum of $1,425, * *
This appeal is from that decree, and appellants state the sole issue in the casé to be whether this $1,425 should be allowed as a common or general claim or should he allowed as a prior claim.
The question presented for decision involves a consideration and construction of a portion of § 1 of act 107 of the Acts of 1927, page 297, which, in our opinion, has previously been so construed as to require the affirmance of the decree here appealed from.
Section 1 of act 107 classifies the creditors of a bank of which the Bank Commissioner has taken charge as “secured creditors, prior creditors or general creditors,” and proceeds to define each of these classifications. This section defines those creditors who are to he classed as “prior creditors.”
Paragraph 4 of this section reads as follows: “The owner of a special deposit expressly made as such in said bank, evidenced bv a writing’ signed by said bank at the time thereof, and which it was not permitted to use in the course of its regular business.”
Paragraph 5 reads as follows: “The beneficiary of an express trust as distinguished from a constructive trust, a resulting trust or a trust ex maleficio of which the said bank was the trustee, and which was evidenced by a writing signed by said 'bank at the time thereof.”
It is further provided in § 1 of this act that these prior creditors shall be paid in full, with certain exceptions not important here to consider, as the Bank Commissioner has in hand sufficient funds to pay the claim in question in full, notwithstanding the exceptions, if it is, in fact, a prior claim. As has been said, it has been stipulated that the only question for decision is whether the claim is a ‘‘prior claim,” within the meaning of § 1 of act 107.
In our opinion, the case of Royal Arch Benefit Association v. Taylor, 187 Ark. 531, 60 S. W. (2d) 915, and the cases there cited and reviewed, are decisive of this question. In that case the facts were that a bank, having in hand a general deposit, issued a memorandum, reciting that it had set aside a sum from this general deposit to purchase government bonds for the depositor. The memorandum recited that the bank, which later became insolvent, had charged the depositor’s account with the sum named as an advance payment on the bonds which the bank had undertaken to purchase for the depositor. Upon the failure of the bank, its assets were taken over for -purposes of liquidation by the 'State Bank Commissioner, and the question arose whether the sum mentioned in the memorandum had become a prior claim within the meaning of act 107 of the Acts of 1927. It was held that the writing was a sufficient memorandum to evidence an “express trust,” entitling the depositor to the preference given by paragraph 5 of the act, above quoted, and that it should be paid as such.
In so holding we said that the memorandum was not ambiguous, but clearly indicated the purpose for which the sum named had béen withdrawn from the general deposit, and that the ease was not altered 'because the money 'set aside for the purpose indicated'was already in the bank at the time, of the direction given for its use by the depositor and the application to be made of it by the bank. This statement was made upon the authority of the case of Grossman v. Taylor, 185 Ark. 64, 46 S. W. (2d) 12, in which case we held that the instrument issued by the bank was as effectual to create an express trust as though the money had been checked out and redeposited. In the Boyal Arch Benefit Association case, after stating the above holding in the Grossman case, we said: “There is no particular form of writing prescribed by the statute, nor any manner pointed out therein, in which the same shall be signed, and, while this might be .called a ‘charge ticket,’ as contended for by the appellee, it was something more. It was both a charge ticket and a contract and entitled the appellant to a preference over the general creditors and to share with the other preferred or prior creditors pro rata, and to have the balance, if any, classed as a common claim.” See also Albright v. Taylor, 185 Ark. 401, 47 S. W. (2d) 579.
We find it unnecessary to determine, under the facts as recited in the stipulation hereinabove copied, whether the $3,000 deposit was a special deposit under paragraph 4 of act 107, as defined in Albright v. Taylor, supra, or was an express trust under the provisions of paragraph 5, as interpreted in the Taylor case, supra, for, if not one, it was the other, and in either case it is given priority by the statute.
The $3,000 was a part of an existing deposit, but it was held in both the Grossman case and the Taylor case, supra, that this fact was unimportant and did not alter the character of the transaction. The $3,000 was withdrawn from and set apart from the general deposit. It was no longer subject to the check of the depositor, and his general deposit was reduced by the amount thereof. The memorandum accorded the right to the bank to hold this money for the use agreed upon, to-wit, its indemnification. The memorandum created either a special deposit for this purpose, or an express trust for that purpose, and as a right of priority is given by and exists under the statute in either case, the decree according priority is correct and must be affirmed, and it is so ordered.
Humphreys, J., dissents. | [
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McHaney, J.
Appellee recovered judgment for $3,000 against appellant for personal injuries slie alleged she sustained while riding as a passenger on appellant’s street car on the 15th Street car line in the city of Little Rock, on May 30, 1931. She is the only witness who testified as to how the alleged injury occurred. The operator of the street car was dead at the time of trial and made no report of an accident on said date. Only one other passenger was on the car, and he was not available as a witness. Appellee testified that she boarded the car at the end of the line at 25th and Summit. As they were traveling east on 16th Street, she noticed the motorman writing in a small book and not keeping a lookout, and, just as the car entered the intersection of 16th and Battery, the latter being a boulevard stop, the motorman noticed that he was about to collide with an automobile traveling on Battery Street, and that he made an emergency stop which was so sudden and violent as to throw her forward against the window frame and seat in front of her, causing the injuries of which she complains.
For a reversal of the judgment against it, appellant assigns as error the giving of appellee’s instructions Nos. 1 and 2. These instructions will be copied by the reporter in a footnote to this opinion. The criticism made of No. 1 is that the only issue made by the pleadings was the failure of the motorman to keep a proper lookout, and that said instruction not only submitted that issue, but went further and submitted “the false issue as to whether or not the motorman was negligent in stopping the ear suddenly in an effort to avoid an imminent collision. ” It is insisted that it was the motorman’s duty to stop as quickly as possible under the circumstances, and that no liability can be predicated on the fact that he made a quick and sudden stop. In other words, “the motorman could not do right and wrong at the same time. ’ ’ A number of cases are cited from other jurisdictions holding to the effect that liability against a street railway company cannot be predicated on an injury caused by a sudden stop in order to avoid a collision in an emergency created by the act of some third person or agency over which the motorman had no control. For instance, in the case of Cleveland City Ry. Co. v. Osbourn, 66 Ohio State 45, 63 N. E. 604, the appellee was a passenger on a street car which was brought to a sudden stop in order to avoid a collision with a bakery wagon which was driven on the track directly in front of the street car. From a judgment based on the sudden stop, the court on appeal held that it was the duty of the motorman to stop in order to avoid a collision with the wagon, — an emergency created by the act of a third person. Recovery was denied, the court saying: “The judgment of the lower court presents the anomaly of requiring of one the strict performance of an act as a legal duty, yet requiring it at his peril. One cannot do right and do wrong at the same time.” Here the facts are entirely different. Am emergency was created or arose, not by any act of a third person, but by the negligence of the motorman himself in failing to keep a proper lookout and in failing to bring his car to a stop in the usual and customary way at a boulevard stop. It was his duty to bring his car to a stop at 16th and Battery, whether an automobile was crossing the street car track at that time or not, and had he kept a proper lookout, he no doubt would have done so in the usual way. Having created the emergency by his own negligence, appellant cannot escape liability thereon. We therefore hold said instructions were proper under the facts of this case.
Error is also assigned for the refusal of the court to give requested instructions 9, 11 and 12. We do not set them out for, in so far as 9 and 11 were correct, they were fully covered by other instructions given. No. 12 would have told the jury that they could not compare the negligence of appellee, if any, with that of appellant, if any, but that, if appellee were negligent and such negligence contributed to her injuries in any slightest degree,, she could not recover. Instructions were given on contributory negligence, and it was not necessary to repeat them.
No error appearing, the judgment must be affirmed. | [
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Butler, J.
On January 9,1933, plaintiffs in the court below filed a claim with the Pulaski County Court for $13,-299.31, and asked that the same be paid out of the county turnback fund accruing to the county under the provisions of act No. 63 of the Acts of 1931. This is the identical claim that was before this court in the case of Ogden v. Pulaski County, 186 Ark. 337, 53 S. W. (2d) 593. The county court disallowed the claim, and, on appeal to the circuit court, the action of the county court was sustained, the court finding that the action was founded on the same contract and for the same debt involved in a former action between the same parties which was adjudicated on appeal to the Pulaski Circuit Court in favor of the defendant, Pulaski County, and affirmed by this court; that in the said former action it was found that the contract and claim was valid, and there was a subsisting indebtedness for the amount claimed, but that’the expenditures by the county for the year in which the claim was filed were in excess of the income for said year, and the claim was therefore void because within the inhibition of amendment No. 10 of the State Constitution; that at the time of the former trial there existed in the county treasury a fund known as the county general road fund, and another known as the county highway turnback fund in which was deposited only gasoline taxes accruing to the county by virtue of the provisions of act No. 63, supra, and that the claim of plaintiffs is res judicata.
It is insisted by the plaintiffs on appeal that, while this action is between the same parties as was the former, it is upon a different demand or cause of action; that the present claim was not within the issues of the former action, and that there was no judgment on the merits of the cause. In developing- this contention, and in support thereof, appellant argues that the improvement made was on a farm-to-market road, payment of which was proper to be made out of the county turnback fund under the provisions of act No. 63, supra, and especially so because the contract for the improvement made between the appellants and the county did not specify any particular fund out of which payment was to be made.
They insist that the only question raised and settled in the former suit was whether or not payment of the money due out of the county general road fund would violate Amendment No. 10 to the Constitution, and that this suit, unlike the former, is not a suit against the county general road fund, but one against the turnback fund, and presents a different question than the one formerly adjudicated,
We are cited to a number of cases of our own court and to those of courts of other jurisdictions to sustain the doctrine that a former judgment, to be a bar to a later proceeding, must have been a decision on the merits of the cause between the same parties or their privies and the point of controversy in the latter case must have been within the issues in the former. We think this rule well established, but cannot agree with the appellant that the point involved in the instant case was not within the issues raised in Ogden v. Pulaski County, supra, or that the merits of the case were not there considered.
It appears that the court found upon the testimony-adduced that the contract was valid, and that the claim represented a subsisting indebtedness, but was uncollectable because of constitutional inhibitions. The agreed statement of facts discloses that at the time of the institution of the first suit all the revenue accruing to the county for road purposes was carried in one fund, denominated the county general road fund, a part of which was a donation from the State to the county commonly known as “turnback fund.” "While the suit was still pending, however, the turnback fund was taken out of the general road fund and carried on the books of the county in a separate account. The turnback fund was capable of being segregated at any time, and, as we have seen, this was actually done during the pendency of the suit, and the question whether the claim could be paid out of this fund was a matter properly belonging to the controversy, and therefore was within the scope of the issue. Although this question was not formally litigated in the first action, it might have been, and the judgment holding that the question was res judicata was correct. It is the general rule, which has been frequently announced by this court, that the parties to an action are bound to make the most of their case or defense and that a judgment of a court of competent jurisdiction operates as a bar to all questions in support of the cause or the defense, either legal or equitable, which were, or could have been, interposed in the case. This rule was reaffirmed in the recent case of West Twelfth Street Road Imp. Dist. No. 30 v. Kinstley, ante p. 126, in which a number of cases supporting the rule were cited.
It is therefore ordered that the judgment of the trial court be affirmed. | [
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Humphreys, J.
Appellees, the sole heirs of Adam Reeder, deceased, brought suit in the chancery court of White County against appellants to cancel a deed to certain real estate in said county executed by Emma Reeder Laster and to recover said lands and all other property received by him from Emma Reeder Laster, and from the estate of the said Adam Reeder and Emma Reeder Laster,
Emma Reeder Raster’s first husband was Adam Reeder. At the time she married Adam Reeder he was a widower, and appellees are his children and grandchildren. No children were born to them. According to the clear weight of the testimony, in 1914 they became estranged, and through friends were influenced to renew their marital relationship under oral agreement that they would pool their property and in the future conduct their business in the name of themselves as husband and wife, and, in the event Reeder predeceased his wife, that she would continue to manage their property and would execute a will bequeathing all of the property remaining at her death to the children and grandchildren of Adam Reeder. The agreement was fully performed by the parties as long as Adam Reeder lived and until his wife married J. O. Laster. After the marriage, she executed a deed to the lands in question, which had been conveyed to Adam Reeder and her as husband and wife, to J. O. Laster and bequeathed to him all the personal property so held by her at the time of her death, of her own free will and accord. This suit was commenced when J. O. Laster filed the deed for record and the will for probate. The chancery court found the facts detailed in substance above were supported by the clear weight of the evidence, and rendered a decree impressing a trust upon the personal property, but refusing to impress a trust upon the real estate because the agreement was not in writing. Appellants have appealed from that part of the decree impressing a trust upon the personal property. •
The first contention is that the trust agreement was established by the testimony of the attorney, C. L. Pearce, who acted for and advised with both Adam and Emma Reeder when they were reconciled after a short separation. It is argued that his testimony was inadmissible and should not have been considered by the trial court on account of the fourth subdivision of § 4146 of Crawford & Moses’ Digest, which reads as follows:
“The following persons shall be incompetent to testify: an attorney concerning any communication made to him by his client in that relation, or his advice thereon, without the client’s consent.”
The testimony of Mr. Pearce relates to an agreement entered into by clients in his presence concerning their property and the future disposition thereof to third parties and not to “communication made to him by his client in that relation, or his advice thereon.” The subject-matter detailed by him was not within the spirit or letter of the statute. His testimony was clearly admissible. Section 40, “Cyc,” p. 2368, subdivision 7.
It is also contended that an express trust relating to personal property cannot be created by parol. This court said in the case of Scott v. Miller, 179 Ark. 7, 13 S. W. (2d) 819: “In some jurisdictions an express trust cannot be created by parol, even as to personal property, but the clear weight of authority is to the effect that the statute of frauds does not extend to trusts of personal property, and that such trusts may be created and proved by parol.”
No error appearing, the decree is affirmed. | [
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McHaney, J.
This is an appeal from a decree foreclosing a mortgage on certain lands given by appellant, Will Raines, to secure a note for $450, representing certain advances already made and those to be made in the future by appellees. The propert3r covered by the mortgage has been sold, and appellees became the purchasers for a sum less than the amount of the judgment.
For a reversal, it is first urged that appellees sued on a note, but recovered on an account, which amounted to a recovery on a substituted cause of action. It is true that appellees declared upon a note, secured by a mortgage. Appellants denied they were furnished the full amount of the note, stated that the note- and mortgage were given for supplies to be advanced, and asked that appellees be required to set out an itemized and verified account. This was done, and its only purpose was to show that the note represented the correct amount of advances already made at the date of its execution and those to be made thereafter. It was simply another way of establishing the amount due on the note. Although a note is given for a definite sum and is secured by a mortgage given for a definite amount, it is competent to show that the transaction is simply one for future advances or for a sum already advanced and for future advances. Henry v. Union Saw Mill Co., 171 Ark. 1023, 287 S. W. 203. It is not the substitution of a cause of action on account for one on a note. The amendment to the complaint setting out the itemized account was called for by appellants.
It is next earnestly insisted that the note sued on and the mortgage are usurious. In the substituted answer filed by appellants it is alleged that the note is usurious because supplies were not furnished under it up to the amount of the face of the note. In this appellants are mistaken. The evidence greatly preponderates in favor of appellees in this regard, conceding without deciding that the plea of usury was sufficient, since there was no allegation of an intention on the part of appellees to take or reserve more than the legal rate of interest. See Moody v. Hawkins, 25 Ark. 191; Citizens’ Bank v. Murphy, 83 Ark. 31, 102 S. W. 697; American Farm Mortgage Co. v. Ingraham, 174 Ark. 578, 297 S. W. 1039. Nor does the proof show that more than 10 per cent, per annum was charged or received. Mr. Crockett testified that interest was charged at 10 per cent, from the first of the month for goods bought during the preceding month. Appellants received monthly statements of their account and never at any time questioned same, and these statements showed on their face: “All bills are due and payable on the first of each month following date of purchase. 10 per cent, interest charged after maturity.” We think there can be little doubt that appellants were not overcharged either as to interest or principal.
The final contention of appellants is that the land covered by the mortgage became the homestead of Mary Raines, wife of Will Raines, prior to the recording of the mortgage, although subsequent to the date.of its execution and delivery, and, not being signed and acknowledged by her, it is void. The note and mortgage were executed and delivered by Will Raines on January 11, 1928, while he was a widower. Four days later, January 15, Will and Mary (colored) were married and immediately moved on the 80 acres of land covered by the mortgage which was not recorded until February 3, 1928, and, of course, was not signed or acknowledged by Mary. This is a novel contention and one that has rarely been before the courts. It is unsound in principle and not supported by authority. The law is thus stated in 13 B. C. L., § 109:
“failure to record transfer: While marriage is undoubtedly in one sense a valuable consideration, yet it has hardly yet been reduced to the level of a contract of bargain and sale, nor do we find that it has ever been held that the statute of registration is intended to advise persons contemplating matrimony of the property and contract status of the other party to the contemplated engagement. It is reprehensible for either party to conceal the fact that he or she does not own large properties on the faith of the reputed ownership of which, in part at least, the other may properly enter into an agreement of marriage, but the statute for the registration of conveyances, while intended to protect purchasers for valuable considerations, mortgagees, and judgment creditors, without notice, cannot be given that enlarged construction which would include persons entering into a contract of marriage, and it is held that the failure to record an antenuptial conveyance by the husband does not render it invalid as against the future wife as regards her marital rights in the property conveyed. ’ ’
From this and other authorities we are of the opinion that, as stated by the Supreme Court of Minnesota in Snell v. Snell, 54 Minn. 285, 55 N. W. 1131: ‘ ‘ The right in her husband’s real estate, which a wife acquires by her marriage, does not come within the registry law, and is postponed to an unrecorded trust.”
We are of the opinion that Mary acquired her rights to the homestead subject to the existing mortgage, even though not recorded, as the registry statutes in such cases were not for her protection.
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Humphreys, J.
Appellee shipped forty-eight head of cattle on January 29,1916, over appellant’s railroad from Argenta, Ark., to East St. Louis, 111. Thirty-five head of these cattle reached their destination, and were delivered to the consignee on February 10, thereafter. Two head died while en route to Hoxie, Ark., seven head while at Hoxie, and four between Hoxie and Illmo. Four head were badly crippled. Another shipment was made by appellee on February 12, 1916, from Argenta, Arkansas, to East St. Louis, and one died en-route. Appellee filed suit against appellant in the Pulaski Circuit Court, claiming damages in the sum of $541.50, on account of the carelessness and negligence of appellant in handling the first shipment; and for $21.42 on account of carelessly and negligently handling the second shipment. The itemized statement of damages on the first shipment is as follows:
To 60 lbs. per head extra shrinkage account of delay on 19 cattle; 1,140 lbs. at $4.33 ave. price plus 50c per cwt. decline in market and depreciation in value........................................................................$ 55.06
To 35c per cwt. decline in market, ana 15c per cwt. depreciation in value account delay on 10,530 lbs.................................................................................................................. 52.65
To 30 lbs. per head extra shrinkage account delay on 11 yearlings and calves; 330 lbs. at $4.85 ave. price they brought, plus 15c per cwt. depreciation (or amount more they should have brought had they been earlier)....................................... 16.50
To damage to 4 cows and one steer injured—average value $29.70 each—$148.50, minus $44.60 salvage ...................................................................................................... 103.90
To 6 ave. grown cattle short............................................................ 178.20
To 7 ave. yearlings short.................................................................. 87.71
To extra feed bill enroute.................................................................. 47.50
Total..........................................................................:........................$541.52
and on account of the second shipment, is $21.42.
Appellant answered and denied every material allegation in the complaint. The jury returned the following verdict: “We, the jury, find the plaintiff suffered damages on account of the negligence of the defendant as follows:
(1) Cattle killed...............................................................$150.00
(2) Cattle crippled...................................................... 50.00
££H. W. Forte, Foreman.”
On the theory that the undisputed evidence showed that the cattle killed were of the value of $265.91, and that the cattle crippled were damaged $103.90, the appellee moved the trial court for judgment in the sum of $391.21. The trial court overruled the motion except as to the damage to the crippled cattle. As to them, he increased the amount from $50, as found by the jury, to $103.90, and rendered a total judgment for $253.90.
Appellant took the necessary steps to preserve his exceptions in the conduct of the case, and has appealed the cause to this court.
(1) Appellant contends that the trial court committed reversible error in permitting C. C. Stewart to give testimony as to the value of the thirteen dead cattle, and the damage to tlie four cattle crippled. Mr. Stewart was an employee of the consignee and had been engaged m buying and selling cattle on that market for twenty years. The stock contract issued by appellant was for thirty cows and eighteen yearlings. Six cows and seven yearlings had died and were missing when the car of cattle reached its destination. Taking into consideration the cattle that did reach the stock yards as a basis, Stewart estimated the value of the six dead cows at $178.20, and the seven dead yearlings at $87.71. These cattle were bought from three parties and shipped in one lot. The shipper had owned them only a short time, and had no way to identify each animal. The measure of damages for those lost would have been their market value at the point of destination. In the case at bar, the consignee or some one familiar with the market value at the point of destination must estimate the value of those lost and the damage to those living. No one could do that better than a witness of experience like Stewart, and he must necessarily do it by a general average price, it being impossible to identify and value each animal. In Ruling Case Law, volume 4, section 467, it is said that ‘ ‘ a trader or dealer in stock, or a person who is qualified by experience, may give evidence as to the value of cattle, hogs, and other animals that have a market value, although he may never have seen them. ’ ’ The statement of the text is liberally supported by authority.
(2) Appellant contends the court erred in admitting the testimony of J. I. Altschul with reference to the condition of the stock pens at Hoxie in June, 1916, some four or five months after the cattle had been detained in the pens. He said the pens were small; part of them recently refilled with rock; two of them still wet and muddy; feed racks insufficient; and that no shelter was over the pens. These pens were pointed out to the witness by an employee of appellant as the pens where appellee’s cattle were kept and fed from January 30 to February 9. Stock pens are not temporary affairs. They are permanent, and their character and condition would continue to be about the same for a long period of time. It is clearly inferable from J. I. Altschul’s testimony, taken in connection with other facts in the case, that the condition of the' pens in June was about the same as in January and February. The only evidence of any change was that rock had been recently put in part of the pens. Had any material change been made in the pens between January and June of the same year, appellant could easily have shown it.
(3) It is contended that the trial court erred in giving instructions Nos. 1, 2 and 7, asked by appellee, for the reason that the instructions ignored the right of appellant to attribute the delay in transit to an act of Grod, instead of its negligence. The undisputed evidence showed that the delay was caused by washouts. It is true these instructions made no exceptions limiting the liability of appellant on account of unavoidable washouts in specific words; but when all the instructions given are read together, it is quite plain the jury was permitted to render a verdict for damages, if any, resulting from the negligent acts of appellant only, and not damages resulting from an act of Grod. Instruction No. 17, given by the court, is as follows. “You are instructed that if you find that the delay in the shipment was caused without any fault on the part of the defendant, then your verdict should be for the defendant on the alleged damage resulting from delay.” The jury understood that if the delay in transit was caused by unavoidable washouts, no damages resulting from the delay could be adjudged against appellant. The verdict returned by it excluded all items of damage resulting from delay. The items of shrinkage, decline in market value and feed bill resulting from the delay, were omitted from the verdict. There is no evidence in the record tending to show that the delay killed or crippled the cattle, and the verdict of the jury covered these two items only; hence, the appellant was not prejudiced on account of these instructions, and can not complain.
Appellant contends that error was committed in refusing to give instructions Nos. 11 and 12, which, in sub stance, exempted appellant from liability for delay in transit, if the delay was caused by unprecedented floods. The verdict did not contain any item of damage caused solely by delay, so appellant was not prejudiced by the refusal to give these instructions. No useful purpose could have been accomplished by giving them, as the same idea was manifest in other instructions given by the court.
Appellant contends that the court erred in giving appellee’s instruction No. 6, because it told the jury it was the duty of appellant to provide suitable yards and necessary facilities for caring for livestock shipped over its line, instead of telling them it was the duty of appellant to use ordinary care to provide such pens, etc. The imposition on common carriers of the duty to provide necessary and suitable yards, and the facilities for caring for stock, in no way implies the burden of extraordinary care; but even if inferable from the language used, that more than ordinary care was required, the jury was precluded from drawing such an inference by the following instruction given at the instance of appellant: “You are instructed it was the duty of the defendant to use ordinary care and reasonable diligence to handle the cattle to destination, and to provide suitable stock pens, under all the circumstances of the case.”
(4) But appellant insists that there is a total want of evidence to show that the pens were at all unsuitable, or improperly maintained, for the purposes for which .they were constructed. The evidence tends to show that forty-six head of cattle were confined for ten days in small pens, with poor facilities for feeding and no shelter. “Roughing cattle through” is the practice in some localities. Where that method of raising cattle is in vogue, the cattle as a usual thing have broad acres over which to roam, and are somewhat protected during inclement weather by bluffs, hillsides and timber. Crowding a large number of cattle in small pens in midwinter without shelter and ample facility for feeding is in effect “roughing them through,” and smacks rather of cruel treatment to animals than the exercise of ordinary care for their com fort and protection. The rule, supported by the weight of authority, is that the railroad companies carrying live stock must provide suitable yards and facilities for resting, feeding, watering and protecting the cattle in transit. R. C. L., vol. 4, secs. 433, 436 and 438.
(5) Appellant contends that the trial court erred in raising the verdict from $50 to $103.90 on account of the item of damage for crippling..................head of cattle in transit. This raise was on the theory that the undisputed evidence showed the..................head of cattle in question were damaged $103.90. This amount was only the estimated amount made by the expert witness, C. C. Stewart. It was opinion evidence only, and should have gone to the jury with all other evidence tending to show the condition and value of the cattle. Much evidence tended to show the cat-, tie were weak when shipped, and unable to stand a long, hard journey. Two of them died on the car on the first run from Argenta to Hoxie. Seven of them died while in the pens, and four of them on the run from Hoxie to Illmo. It is largely problematical as to when and where the crippled cattle were injured. Under the facts and circumstances of this case, the right to fix the amount of damages was within the exclusive province of the jury. The court erred in raising the verdict.
The judgment is, therefore, reversed and modified so as to conform to the verdict of the jury. | [
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McHaNey, J.
Appellee sued appellants in one count of tlie complaint on open account in the sum of $847.88, and in another count on a promissory nóte in the sum of $1,276.85, for flour sold and delivered by it to them. Appellants do not dispute the amount of the indebtedness, but defend on the ground, first, that the last car of flour bought was damaged, unfit for use and was not of the quality expressly warranted by appellee, with the result that a part of the flour remained unsold and unsalable, and a part .was returned by their customers, a total of less than fifty sacks of forty-eight pounds, worth, at retail, $1.15 per sack; and, second, that the flour they did sell, and which was not returned by their customers, was of such inferior quality that it caused them the loss of about thirty customers or more, entailing a consequent damage to them of $5,000- in loss of future profits, good will, etc., for which amount judgment was prayed in a cross-complaint. They also claimed damages to the amount of the purchase price of the flour because of its worthless condition, which they claimed in offset of their indebtedness.
The court sustained a demurrer to the cross-complaint for damages for loss of future profits on customers lost, and for damages to good will, and refused to permit any proof in support thereof. At the conclusion of the testimony, appellee offered to abate its claim to the extent of 50 sacks of flour at $1.15 per sack, and the court directed a verdict for it for the balance, all over the objections and exceptions of appellant.
It is undisputed that appellants had on hand less than 50 sacks of 24’s and 48’s of all flour bought from appellee that he either did not sell or that were returned to him. All the other flour had been sold at the full retail price, and no customer had asked for or been refunded the purchase price therefor. Appellants say the flour was expressly warranted to be absolutely satisfactory in every way. Mr. T. Gruy Reed testified: “Mr. Roy Fornin, agent for this State, and Mr. Evans (meaning appellee’s agents) stated in front of our store that any flour that was not absolutely satisfactory in every way could be returned.” He further testified that it was with that understanding that he bought the flour. Since appellees have made good that warranty by giving credit for the fifty sacks of flour, it is difficult to perceive why it should be held liable for the difference between the value of the flour received and its value if it had been as warranted. Appellants did not return, or offer to return, any of the flour to appellee. No witness testified that the flour was damaged when received by appellants, but, assuming this to be the effect of the testimony, the express warranty, also assuming there was one, was that, if it was not satisfactory in every way, it might be returned. But appellants returned no flour to appellee, and made no complaint about the flour in any way until this suit was brought. They were buying from appellee and selling to their trade about one car per month. The last car, the one in controversy, was delivered February 9,1931. The note which is the basis of the second count in the complaint was not executed until April 1, 1931, and in the meantime, and long after the flour had been sold, appel lants wrote appellee regarding their indebtedness to it, but no claim was made that the flour was unsatisfactory.
Moreover, this, is a sale by one dealer to another, and, as said in Nelson v. Armour Packing Co., 76 Ark. 352, 90 S. W. 288: “In the sale of provisions by one dealer to another in the course of general commercial transactions, the maxim caveat emptor applies, and there is no implied warranty or representation of quality or fitness. 77 But see exception to this rule in Bunch v. Weil, 72 Ark. 343, 80 S. W. 582. Appellants cannot therefore base their action on implied warranty. The only warranty attempted to be proved was an express one, as already stated, and, of course, there could not be both an express warranty and an implied warranty of fitness or satisfaction in the sale of the flour. “The reason is,” said this court in J. S. Elder Grocery Co. v. Applegate, 151 Ark. 565, 237 S. W. 92, “that, if there was an express warranty upon this subject, it would govern as being the contract between the parties. There would be no room for an implied warranty if there was an express warranty on the same subject.77 Reliance is placed on Hixon v. Cook, 130 Ark. 401, 197 S. W. 698, but it has no application here. This is a sale from dealer to dealer. ‘
For the same and other reasons appellants were not entitled to recover future profits, or loss of customer's, or damage to their business or for loss of good will. The express warranty, assuming it to be established by the evidence, precludes it. Such damages were not in the contemplation of the parties. They were not included in the contract by the express warranty. Unsatisfactory goods might be returned for credit. This appellants have received, and they are in no position to claim more. Such damages are also too speculative, remote and uncertain. 55 C. J. 1190, § 1166; Goodell v. Bluff City Lumber Co., 57 Ark. 203, 21 S. W. 104; Bunch v. Weil, 72 Ark. 343, 80 S. W. 582.
The court correctly instructed a verdict for appellee, and this judgment is accordingly affirmed. | [
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Battle, J.
William Strickland has appealed from the judgment of the Pulaski circuit court, wherein he was fined for interfering with a police officer of the city of Little Rock while in the discharge of his official duties. The prosecution for the offense originated in the Little Rock police court. The facts are, substantially, as follows: B. S. Farrow, a sanitary policeman of the city of Little Rock,in this state, was instructed to examine the premises of appellant. He went to his shop at 908 Main street, in said city; went into the alley behind the shop, and there saw four sheep in a stable. He went away, and in about an hour he returned, and found the four sheep were gone. He went to the front, and tried to get into the back room of the shop, in order to examine for “signs of slaughtered sheep.” Strickland stepped in front of him, and said: “You can’t go in there.” He went away, and afterwards returned with two other policemen, and was admitted into the shop, and “found four sheep, just killed, hanging in front.”
An ordinance of the city was read as evidence in the trial, and is as follows: “Whoever in the city shall resist any member of the police department in the discharge of his duty, or shall in any way interfere with or hinder or prevent him from discharging his duty as such member of the police department, or shall offer or endeavor so to do, shall be fined not less than $10 nor more than $25.” The powers and duties of the sanitary policeman were not shown in the evidence. No ordinance of the city defining such powers and duties were read. If such ordinances were in existence, the circuit court or this court cannot take judicial notice of them. It follows then that the evidence fails to show that the appellant interfered with the policeman in the discharge of his duties.
The statutes of this state empower cities to prevent “injury or annoyances within the limits of the corporation from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated within the jurisdiction given to the board of health;” and to prevent or regulate the carrying on of any trade, business or vocation dangerous to morals, health or safety within the corporate limits; and to create a board of health, with jurisdiction for one mile beyond the city limits, and for quarantine purposes,, in case of epidemic, five miles, and to invest with such powers and impose upon it such duties as shall be necessary to secure the city and the inhabitants thereof from the evils of contagious and'malignant and infectious diseases. (Sand. & H. Dig., §§ 5132, 5203, 5313.) The evidence totally fails to show that the city of Little 'Rock has ever exercised these powers.
Reversed and remanded for a new trial. | [
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Kirby, J.
This appeal is from a judgment of the Monroe Circuit Court in favor of appellees upon an insurance benefit certificate in which they were named as beneficiaries.
The appellants filed a general demurrer to the complaint, and later a special demurrer, alleging that the court was without jurisdiction of the defendants or either of them. The demurrers were overruled, and, there being no further pleadings by the defendants, the cause proceeded to trial in the absence of the attorney for appellants, and judgment was rendered for the amount of the policy, costs, etc.
Appellants moved to vacate the judgment because the action was not filed in the proper connty and the court was without jurisdiction over the defendants.
There is no hill of exceptions in the record, and ap-pellees state in their brief that the testimony showed that they were citizens and residents of Monroe County, where the insured died.
It is urged that the court erred both in overruling appellants’ demurrer and in denying their motion to vacate the judgment. The appellants insist that the court erred in overruling the demurrers, and argue that the court was without jurisdiction because the complaint did not allege that the beneficiaries were residents of Monroe County, and that the insured died there. The allegations of the complaint were sufficient without alleging the county of the residence of the insured and where his death occurred; since in fact he was a resident of that county and his death occurred there, and it could and would have been shown upon a motion to make the complaint more definite and certain, or upon an objection to the jurisdiction of the court on that account. The complaint did not show that the decedent, insured, was not a resident of the county and that his death did not occur there (% 6150, Crawford & Moses’ Digest), and the evidence introduced disclosed that he was such resident and died there.
Neither was error committed in overruling the motion to vacate the judgment, since no sufficient cause was alleged therefor, and it contained none of the grounds prescribed by the statute for such vacation, nor was any defense to the cause of action alleged therein.
The presumptions are all in favor of the validity of the judgment, and, as already said, there is no hill of exceptions containing the testimony, and the judgment must he affirmed.
It is so ordered. | [
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Butler, J.
This case involves the construction of the will of Nannie C. Carter, who was the owner of a farm containing 82 acres of land, an additional 80-acre tract, and certain personal property and life insurance. Mrs. Carter died, leaving surviving her husband, John Carter, and four daughters, Mrs. Daisy M. Fine (then Malone), the appellant, Dora E. Patton, Leila Fine and Mary J. McG-owan, the appellee. After providing for the payment of her debts and funeral expenses and directing that her executor convert into money all her personal property and collect the amount of her insurance, and devising to her granddaughter eighty acres of land not included in her farm, and certain other specific bequests, she devised to her husband, for his life or until his remarriage, the use, rents and profits of her farm, provided that on his death or remarriage the 82-acre farm be divided into four portions of 20% acres each in a certain specific manner. Three of these parcels she devised in fee simple on the termination of the particular estate devised to her husband unto Mary McGowan, Leila Fine and Dora E. Patton. The particular estate of the husband was devised by item 5 of the will, which is as follows:
“I give and bequeath unto my beloved husband, John Carter, one bed, ten quilts, two pillows, 1 dresser, 1 commode, 2 rocking chairs, and such kitchen and dining furniture and ware as he may choose out of such articles as I may leave at my death. I also give and devise unto my said husband, until his death or remarriage, the use, rents and profits of my farm in sections seven and eight in township nine of range twenty-nine west, in Crawford County, Arkansas, containing eighty-two acres, more or less.”
The remaining 20% acres was disposed of by item 8 of the will, which is as follows:
“I give, devise and bequeath unto my said daughter, Daisy M. Malone, the use, rents and profits of the residue and remainder in same after the death or remarriage of my said husband, John Carter, of the following described land in Crawford County, Arkansas, to-wit: The west twenty and one-half acres of the east forty-one acres of my farm in sections seven and eight, in township nine of range twenty-nine west, and I give and devise to my said executor, in trust for use of said Daisy M. Malone, and direct and empower him, my said executor, to invest one-fourth of all the rest, residue and remainder of my estate, after the specific legacies hereinbefore provided for, including therein the money arising from my insurance policies, in river-bottom land in this county as near as may be to said land above set apart for her use, and take title thereto of a life estate in said Daisy M. Malone, remainder over to the heirs of her body, if any there be, and, if not, then remainder over to her three sisters, Mary J. McG-owan, Leila V. Fine and Dora E. Patton, in equal shares.”
It was this item of the will that the trial court was called upon by the appellant to construe, it being appellant’s contention there, and she here insists that item 5 of the will created a life estate in John Carter and at his death the fee would vest in the appellant who was at the time of the execution of the will, Daisy M. Malone. Before the beginning of this litigation, John Carter, the husband of the testatrix, had died.
In support of the contention of appellant, counsel cite and rely upon a great number of our cases and particularly stress the cases of Hardage v. Stroope, 58 Ark. 302, 24 S. W. 490; Bell v. Gentry, 141 Ark. 484, 218 S. W. 194; and Pletner v. Southern Lbr. Co., 173 Ark. 277, 292 S. W. 370. We are of the opinion that the appellant mis.-coneeives the import of items 5 and 8 of the will and the effect of onr decisions which correctly apply well-known principles of law to the construction of the particular language of the instruments under consideration. In Har-dage v. Stroope, supra, which is a leading ease, the instrument was a deed, and the particular part construed was the habendum clause, which is as follows: “To have and to hold the said lands unto the said Tennessee M. Carroll for and during her natural life, then to the heirs of her body in fee simple; and if, at her death there are no heirs of her body to take the said land, then in that case to be divided and distributed according to the laws for descent and distribution in this State.”
In Bell v. Gentry, supra, there was the following devise: “I devise to my said executrix all the residue of my real estate as long as she shall remain unmarried and my widow, with remainder thereof on her decease or marriage to my said children and their bodily heirs in the following manner: (naming the children.)”
In Pletner v. Southern Lbr. Co., supra, the devise construed is as follows: “I wish my wife, Artemus P. Gillis, to have the benefit of the homestead, * * * with the remainder of my estate to the said Mary Elmira Godfrey and her bodily heirs, and should the said Mary Elmira Godfrey die leaving no bodily heirs, I wish that portion of my estate to be turned over to my nephew, John M. Gillis, and his children, of Perry County, Alabama, Marion, P. 0.”
In the first-named case the language of the habendum clause was held to convey to Mrs. Carroll an estate in fee by reason of the application of the rule in Shelley’s case. The court. there said: ‘ ‘ The intention of the deed in question was to convey the land in controversy to Mrs. Carroll for life, then to her lineal heirs, and, in default thereof, to her collateral heirs; in other words, to Mrs. Carroll for life, and, after her decease, to her heirs. The intention, that the heirs were to take only in the capacity of heirs is manifest. The deed comes within the rnle in Shelley’s case. The estate of inheritance vested in Mrs. Carroll, and she became seized of the land in fee simple.”
As a reason for this holding, the conrt said: “It is obvions that the deed to Mrs. Carroll created in her no estate in tail. Her grantor reserved no estate or interest, nor granted any remainder, after a certain line of heirs shall become extinct, but conveyed the land to her to hold during her life, and then to the heirs of her body in fee simple. No remainder vested in her children. ’ ’
In Bell v. Gentry, supra, it was contended that the children of the testator at the termination of the widow’s life estate took only a life estate with the remainder in fee to their children. In overruling this contention, the court properly held that the fee vested in the children, and said: “The will created a remainder and provided when it should vest, and that was on the decease or remarriage of the widow.”
In Pletner v. Southern Lbr. Co., supra, the court, in disposing of the contention that Mrs. Godfrey held a life estate only under the devise, said: “This court has often ruled that, where land is conveyed or devised to a person and the heirs of the body, children, or issue of such person, such conveyance or devise creates an estate tail in the grantee or devisee, which, under our statute (§ 1499, Crawford & Moses’ Digest) becomes an estate for life only in the grantee or devisee and a fee simple absolute in the person to whom the estate tail would first pass, according to the course of the common law, by virtue of such devise, grant or conveyance. But this familiar doctrine cannot have application here, for the reason that the estate is not devised to Mrs. Mary Elmira Godfrey and her bodily heirs, creating a life estate in her and a fee simple estate in her 'bodily heirs under the statute supra. The life estate, as we have seen, was previously devised to Mrs. Artemus F. Gillis, and the remainder of the estate, after such life estate, was devised to Mary Elmira Godfrey and her bodily heirs. If the testator had intended to vest only a life estate in Mrs. Mary Elmira Godfrey, to take effect immediately npon the death of Mrs. Gillis, he doubtless would have designated the estate to be thus cast on Mrs. Godfrey as a ‘life estate’ instead of as a ‘remainder.’ After he had carved out of the fee a life estate, and then vested the ‘remainder’ in Mrs. Godfrey, he evidently meant to devise to her what remained of the estate in fee simple, which was all of it. The fee took it all, and there was nothing left to devise. To construe the will so as to vest the life estate in Mrs. Gillis and a life estate also in Mrs. Elmira Godfrey would be to make these clauses of the will repugnant and inconsistent. This could not have been the intention of the testator, and such construction must therefore be avoided in order to effectuate his purpose. Therefore, construing all the provisions of the will, it occurs to us that the testator intended to vest in Mrs. Gillis a life estate at his death, and at that time to vest in Mrs. Godfrey an estate in remainder (using the latter term in its technical sense) and, by so doing, to dispose of his entire estate.”
Item 8 of the will under construction in the instant case, correctly interpreted, manifests a single intention, and the concluding language, “remainder over to the heirs of her body, if any there be, and if not, the remainder over to her three sisters, (naming them) in equal shares,” is referable to the 20y2 acres carved out of the farm as well as to the real estate purchased by the executor out of the proceeds of the personal property. Hence its effect, with the direction as to the investment of the proceeds of the personal property in land eliminated, would be as if it read as follows: “I give, devise and bequeath unto my said daughter, Daisy M. Malone, the use, rents and profits of the residue and remainder in same after the death or remarriage of my said husband, John C. Carter, of the following described lands in Crawford County, Arkansas, to-wit: The west twenty and one-half acres of the east 41 acres of my farm in sections 7 and 8, township 9 north, range 29 west, remainder over to the heirs of her body, if any there be, and, if not, the remainder over to her three sisters, Mary J. McGowan, Leila V. Fine and Dora E. Patton, in equal shares.”
Thus interpreted, the language of item 8 of the will is unlike to the language of the habendum clause in the case of Hardage v. Stroope and of the devises in the cases of Bell v. Gentry and Pletner v. Southern Lumber Co., supra.
After the determination of the particular estate in John Carter, if the will had devised the remainder to Daisy M. Malone and to the heirs of her body, etc., then the devise would have been similar in nature to the conveyance and devises above set out, the cases relied upon would be in point, and the- principles upon which they were determined applicable here. But such is not the case. The testatrix here carved two particular estates out of the fee, one to John Carter, her husband, and at its termination, to Daisy M. Malone, her daughter, “with remainder over to the heirs of her body, etc. ’ ’ Under the holding in the cases cited, this would not create an estate in fee in Daisy M. Malone, but in the heirs of her body, if any, and if not, in her three sisters.
In construing wills the cardinal doctrine is that, when the intention of the testator has been ascertained by consideration and comparison of the will in its entirety, such intention must prevail and be enforced unless contrary to some well-recognized rule of law. Technical words used in a will are generally construed according to their technical meaning. It is apparent that for some reason, best known to the testatrix, she was unwilling to devise the fee in the parcel of land to the appellant. This is to be inferred by the express language used and by the fact that, with the same particularity and in no uncertain terms, she conveyed the fee in the other three parcels to her other three daughters. She did not convey to the appellant to hold during her lifetime and then to the heirs of her body in fee simple as was done in the Stroope case, but, in plain language, provided that at appellant’s death the remainder should vest in her heirs, if any, and if not, in her three sisters, the other daughters of the testatrix. The testatrix used the language to create a life estate in the appellant, as the court suggested the testator might have done in the Pletner case if a life estate had been intended. It must be assumed that the testatrix used the term “remainder” in its technical sense and to mean that, at the termination of the particular estate in Daisy M. Malone, it should vest in the remaindermen in fee. “Whether vested or contingent, it is essential to a remainder * * * and is an imperative rule of law, that it should take effect immediately on the termination of the prior estate, the particular estate and remainder together forming one continuous ownership. * * * From the doctrine above stated, that the particular estate and the remainder form together, when united, but one estate of the extent or duration of the two, it follows that, while ever so many remainders in succession may be carved out of a fee simple if each is less than a fee, no remainder can be limited after a fee; for, when a fee has once been created, there can be nothing left by way of remainder to give away.” 2 Washburn on Real Property, p. 504.
The particular estate and the remainder were never united in the appellant, and therefore the fee did not vest in her, but remained dormant during her life tenancy to become vested at her death in the remaindermen. We are of the opinion that there is nothing in the cases cited by appellant in conflict with the conclusion we have reached, but, on the contrary, that they support our view. It follows that the decree of the chancellor is correct, and it is therefore affirmed.
McHaney, J., dissents. | [
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Smith, J.
Appellee was employed in the shops of the Missouri Pacific Railway Company in North Little Rock, and, by virtue of this employment, had two certificates which had been issued to him under separate group insurance policies issued by appellant, Missouri State Life Insurance Company, to the railway employees. One of these certificates provided for a weekly indemnity, in case of disability to perform the duties of the insured’s avocation, of $15 per week, but not to exceed twenty-six weeks. The other certificate provided for the payment of $2,000 in the event the insured should, after six months ’ disability, be found to be permanently disabled.
Appellee, after making claim, and proof of his disability under the first-named certificate, filed suit on August 26, 1931, to recover on the first-mentioned certificate providing for the payment of $15 per week. A physician representing the insurance company examined appel-lee, and certified that, while he was affected with syphilis, he was not disabled at that time, and upon this examination and report the company filed an answer, denying liability.
The insured’s disability continued, and on December 5, 1931, his attorney, residing in Little Rock, wrote the company the following letter: “In re: Rome King, 0-2377, Missouri Pacific Railroad Company, Certificate No. 1101.
“Oentlemen: Rome King, the insured, had been totally and permanently disabled for six months, and we now make demand under the above policy and certificates.
‘‘Please advise immediately your intentions in this matter. ’ ’
On December 10th the company answered and stated that the matter had been referred to their local attorney in Little Rock for investigation and report, and on December 11th the local attorney referred to wrote the insured’s attorney saying that, in order to determine whether the insured was totally and permanently disabled, they would ask to have the insured examined by a physician, whose name was stated. No response being received, a second letter was written, reading as follows:
“Please let us have a response to our letter of recent date. If your client will submit to an immediate examination, we will give you an early decision as to whether the company is liable for the payment of total and permanent benefits.”
In the meantime, the company had furnished the insured’s attorney the blanks .used in making proof of claims of this character, and on December 16th these blanks, properly filled out, were sent to the company, showing that the insured was then totally disabled, and had been so for a period of six months.
On December 17th the insured’s attorney wrote the company’s attorney that it would be agreeable for the insured to be examined, provided a representative of the insured be permitted to be present at the examination, and provided also that a copy of the report be promptly furnished insured’s attorney. This letter was answered the day it was received, and the name of the physician selected for the examination, with his office address, was given. This letter concluded with the following statement:
“Just as goon as he can furnish us his report of his findings, we will admit or deny liability for the total and permanent disability benefits. In the meantime, please refrain from filing suit. We feel that we are entitled to a reasonable opportunity to pass upon the claim without being subjected to the statutory penalty and attorney’s fees.”
This letter advised that arrangements for tlie examination to be made on December 18th had been perfected, bnt the insured did not report for the examination until December 22d. On the day on which this examination was held, the insured’s attorney wrote the company’s attorney as follows:
“Claimant was examined at Trinity Hospital today, and we wish you would furnish us with a copy of the report as soon as it is received. Please file your answer in this ease as soon as possible, so it can be set down for trial.”
On the same day on which this letter was written, to-wit, December 22, 1931, an amendment was filed to the original complaint, in which the plaintiff alleged his permanent disability, and prayed judgment, not only for the weekly disability benefits as was originally prayed, but for the face of the policy for permanent disability.
The final report of the examining physician was mailed to the company’s attorney on December 26th, and a copy thereof transmitted to appellee’s attorney December 28, 1931. The letter transmitting this report reads as follows:
“There is inclosed the original report which we have received from Trinity Hospital. In view of the findings, the company admits liability, and is willing to pay the sum of $2,000 with interest from the date the claim was filed. Kindly inform us if this is acceptable. If so, Mr. Broadaway will be instructed to deliver a draft to you at once.”
This offer was not acceptable, and was not accepted, and the cause went to trial upon the records stated on the issue whether the insured was entitled to receive, in addition to the face of the policy and the interest thereon, the statutory penalty and the attorney’s fee on the two thousand dollar policy. It was not questioned that the insured was entitled to his weekly benefits at the time of the trial, together with the penalty and attorney’s fee in that case, and the judgment rendered in the insured’s favor for these items is not questioned and has been paid.
Upon rendering judgment upon the amended complaint for the amount of the two-thousand dollar policy, with the penalty and the attorney’s fee thereon, the court said:
‘ ‘ It seems to me that this statute ought to he strictly construed as to this policy. Of course, being prepared by the defendant, it ought to be construed more strongly against the defendant than the plaintiff. Under the terms of the policy as written, it required the defendant to pay the insured whenever it receives due proof of loss. I think that that part of the policy was substantially complied with by the plaintiff when he sent in the proof of loss by the doctor’s certificate. There is nothing in the policy, unless you give it a very liberal construction, that would give the company any absolute right to require him to submit to an examination. I think, under our statutes, the plaintiff is entitled to the attorney fee and penalty if the insurance company fails to pay the claim within the time specified by the statute. I think now, according to the construction given to that statute in other cases, that the attorney is entitled to his attorney fee and penalty.”
The declaration of law by the court that, under the terms of the policy as written, the company was required to pay when it received due proof of loss, without having the right to make additional investigation, presents the issue in the case, as there appears to be no substantial dispute in the testimony.
The policy sued on contained no provision requiring the insured to submit to a physical examination at the hands of the insurer, but the undisputed testimony was to the effect that this practice was pursued in all cases, and had been followed in a number of eases in which the attorneys here appearing had represented — the one the appellant insurance company, the other policyholders making claims for disability benefits against that company.
The policies or certificates here sued on contained the following provision in regard to the time when the insurance should be paid,
“If the employee shall furnish the company with due proof that * * # he * * * has become totally and permanently disabled by bodily injury or disease, and that he * # * is then, and will be at all times thereafter, wholly prevented thereby from engaging in any gainful occupation, * * *, the company will immediately pay to the employee in full settlement of all obligations hereunder the amount of the insurance in force hereunder on the employee at the time of the approval by the company of the proofs as aforesaid. # *.*”
Appellee insists that the sum for which he here sues was payable immediately upon the delivery of the proof of disability, as the proof furnished was made in conformity with the requirements in this behalf, and that he was not required to wait for any additional investigation to be made by the company, and that especially was this true, inasmuch as the company had filed an answer to the original complaint, before it was amended, denying liability for the weekly benefits for temporary disability. This answer had been filed upon the report of the company’s physician, made some months before the original complaint was amended to embrace and to sue for the permanent disability.
We are not required to decide whether, in all cases or in any case, an insured is required to submit to an examination by the company physician, the policy not having imposed that requirement. But here, whether required to do so or not, the insured had so agreed, and he appears to have been responsible for such delay as occurred in connection with his examination.
We are of the opinion, however, and do decide, that the proof of disability furnished by the insured was not conclusive of that fact. The company had the right to make an investigation. Disability is not a fact, like that of death, which either exists or does not exist. It may be, and frequently is, a question about which there is a doubt, and, if the company had the right to investigate this fact; it was, of course, entitled to a reasonable time within which to exercise the right. This investigation should be made expeditiously and in good faith, but the undisputed testimony shows both expedition and good faith.
Now, as we have said, we do not decide that the right to investigate embraced the right to subject the insured to a physical examination at the company’s hands, but, had that right not been conceded, other means of investigation might have been employed. Nor do we think that the action of the insurer in denying liability under the weekly indemnity certificate is conclusive of the question here presented. The cases arose under different certificates of insurance, and the denial of the existence of liability some months previously would not be conclusive evidence that the same action would be taken later on the second certificate.
The insurer has paid a penalty and an attorney’s fee in the first case, and the second case must be disposed of on its own merits. When so considered, the undisputed facts are that, when the investigation was made, which we think the company had the right to make, it confessed liability and made tender of the full amount of the certificate to which the insured was entitled, and this was done without any delay on its part.
The language of our statute imposing a penalty and an attorney’s fee applies only when payment is refused at the time specified in the policy for the payment to be made, and our construction of the policy here sued on is that the payment was due, not upon the filing of the proof by the insured, but “at the time of the approval by the company of the proofs as aforesaid,” filed by the insured with the company. In this connection, we repeat that this approval was due when the company, acting expeditiously and in good faith, had been afforded a reasonable opportunity to investigate the proofs submitted. The company had incurred the expense of an examination of the insured, and had done this with his consent. He had consented to this method of investigation, whether the company had the right to make this demand or not, and on the very day of the examination the com plaint was amended to add the additional canse of action of a claim for judgment on the two-thousand dollar certificate, with a penalty and an attorney’s fee for delay in making the payment.
We think the statute allowing a penalty and an attorney’s fee should not he so construed as to allow a penalty and an attorney’s fee in this'case, and the judgment must therefore he reversed. As the claim of the insured has been paid in full, less the penalty and attorney’s-fee, the cause of action thereon is now dismissed. | [
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Wood, J.,
(after stating the facts). The appellants contend that the case should be reversed because of the refusal of the trial judge to give the instructions in writing after being requested to do so by the defendants. The record does not show that any objections were made and exceptions saved to the ruling of the court in refusing the request of appellants to reduce the instructions to writing and in instructing the jury orally.
“Exceptions to the action of the trial court in giving or refusing instructions must be made during the trial and brought into the record by bill of exceptions, and can not be reserved by merely assigning them as grounds of a motion for a new trial.” Cammack v. Southwestern Fire Ins. Co., 88 Ark. 505; Plumlee v. St. L. S. W. Ry. Co., 85 Ark. 488.
The judgment is correct, and it is therefore affirmed. | [
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Hughes, J.,
(after stating the facts.) The question to be determined in these cases is, did 60 or 66 payments by the si>beholders respectively discharge their obligations under the contracts they had entered into with the association, and entitle them to discharge, as held by the circuit court? This association was organized under aud in accordance with chapter 122 of the laws of New York for 1851. Its purposes were similar to those of building- and loan associations generally. Upon application of the party desiring to become a member, he or she was made such by the action of the board of directors of the association, if the application was accepted, and thence became interested in the business and affairs of the association, — a participant ratably in the profits and losses, and governed by its articles of association and by-laws. Upon the acceptance of the application for membership in these cases, the following certificate of shares was issued to the applicant, to-wit: “Certificate of Shares. The People’s Building, Loan & Savings Association, Geneva, New York. Number, 4,988. Shares 10. This is to certify that Mrs. Allie L. Quarles, of Fayetteville, State of Arkansas, is hei’eby constituted a shareholder in the People’s Building, Loan & Savings Association, incorporated under the laws of the State of New York, and holds ten shares therein, of one hundred dollars each; and in consideration of the entrance fee, together with agreements and full compliance with the terms and conditions printed on the back of this certificate, and the articles of association and by-laws adopted by the said association, all of which are hereby referred to and made a part of this contract, the said People’s Building, Loan & Savings Association agrees to pay said shareholder, or her heirs, executors, administrators, or assigns, the sum of $100 for each of said shares at the end of five years from the date hereof or at maturity, or, in case of the death of the holder of this certificate before the expiration of said term, then a sum of money equal to the amount of monthly installments paid on said shares, together with all dividends accrued thereon; or the holder of the within certificate may surrender the same to the association at any time after two years from the date hereof, and receive therefor a certificate of paid-up shares for as many shares as the amount credited to such certificate will purchase at the rate of $60 per share, all of which are payable in the manner and upon the conditions set forth in the articles of association and by-laws of the association, and terms and conditions printed on the back of this certificate. Given under' the seal of said association at Geneva, N. Y., this 1st day of April, 1891. [Signed] N. B. Covert, President. [Signed] D. F. Atwood, Secretary. (L. S.)” The certificate of shares provides that the payments which are therein provided for are “payable in the manner and upon the conditions set forth in the articles of association and by-laws of the association, and terms and conditions printed on the back of this contract.” Among the terms and conditions printed on the back of the certificate are the following: “First. The shareholder or person who is to pay all installments under this certificate, agrees to pay or cause to be paid to the association a monthly installment of one dollar for each share mentioned in the certificate on or before the last Saturday of the third, sixth, ninth and twelfth month of each year.” The second provides for payment of a quarterly installment of 25 cents for each share on or before the third, sixth, ninth and twelfth months of each current year. The third provides for a fine of 10 cents for failure or neglect to pay for first month, 10 cents for second, and 20 cents for each month’s neglect thereafter while the policy continues. “Sixth. No agent is authorized to change or alter this certificate, or to waive forfeiture, or to-extend credit, or to grant permits, or to alter notices, proofs,, or any other matters; and the association assumes no other obligation than contained in its printed literature.” “Eighth. The articles of association, by-laws, terms, and conditions, together with the application, are to be construed together as the contract between the shareholder and the association.” Article 17, § 1, of the original articles of association, adopted December 22, 1877, which were in force-'when the certificate in this-case was issued by the association, provides: “Whenever the dues paid and dividends declared shall equal the par value of the shares held by any shareholder, said shares of stock shall be-canceled,and notice of such cancellation shall at once be given to the shareholder, who shall be entitled to receive upon the return of his or her certificate of stock the par value of the shares named. in his or her certificate of stock, and no more; and said association shall not be liable to said stockholder for any dividends or interest on said stock so matured, after the stock has matured, and notice of cancellation thereof has been given to said stockholder.”
The appellee contends that the language of this certificate, that the association will pay $100 to the shareholder, his heirs or assigns, “at the end of five years, from the date hereof [thereof] or at maturity,” bound the association to pay absolutely at the expiration of five years, provided the shareholder had paid the dues, etc., as required, whether the payments, with the dividends, matured the shares or not. The appellee, in her complaint, sets out that representations to this effect were made to her by the agent of the association, and exhibits with her complaint the prospectus of the company, containing this language: “This association is the only one that writes a definite contract, specifying the exact number of payments that will be required from members on each share of stock, and takes a mortgage for a definite period. Bear this in mind, and read carefully the certificate we issue.” This has some appearance of a trick to catch the unwary, and seems to have succeeded. There was some evidence that the agent made representations to the shareholder, when he made his application, that his stock would mature in five years, and that he would not have to make payments for a longer time than five years, and that it might mature sooner. But from the reading of the articles of association, the by-laws, and the certificate of shares, which together constitute the contract, it seems that this language of the prospectus and of the agent must be considered merely estimation, it may be of an extravagant character, upon the part of the company, that might have led the applicant to a wrong conclusion in the premises; i.. e. that his contract was one for a definite number of payments. The contract is a written contract, and the writing in which it is contained, properly construed, will govern the contract, to the exclusion of any outside oral matters or colloquiums between the parties, because the parties made, or are presumed to have made, the writing the repository of their final agreement. Article 17, § 2, of the articles of the association, as amended and adopted on December 2, 1893, provides that: “Sec. 2. In class A, sixty-six monthly installments are all that shall be required of members in said class; in class B, ninety-six monthly installments are all that shall be required of members in said class; in class C, one hundred and fifty-six monthly installments are all that shall be required of members in said class. And when the amount of these installments paid into the loan fund, together with the accumulation thereon, shall amount to the par value of such share, they shall be deemed matured. If at the termination of these respective periods the respective classes of stock shall no't have matured, the holders of such shares shall have the option of withdrawing the amount standing to the credit of such certificates on the books of the association at the home office, or allowing such certificates of shares to remain until the same shall be matured by reason of subsequent dividends.” Under this section the appellee, after making 66 monthly payments, had the option of withdrawing the amount standing to the credit of her certificate of shares on the books of the association, or of allowing her certificate of shares to remain until matured by reason of subsequent dividends, or, if she desired not to suspend payments after 66 payments had been made, she might continue the annual payments until her stock matured, or reached the par value of $100 per share. The certificate of shares does not provide for the maturity of the stock at the end of five years, nor does any provision of the articles of the association or its by laws; and, according to these, the stock must be brought to maturity, or the par value of $100 per share, before the shareholder is entitled to payment, or to have her security canceled or satisfied.
The appellee alleges in her complaint that she was induced by the false and fraudulent representations of the agent of the association, and the language of the prospectus issued by the association and delivered to her, to take stock in said association, and said representations by said agent that he was authorized to say that a definite'number of payments were all that would be required to mature the stock, and that it would mature in five years, and might in less time, but not longer, and that she believed said statements and relied upon them. But in the complaint there is no offer to rescind, and no relief is asked on the ground of fraud. But the complaint alleges that she had complied with the contract, and had paid all she was required by it to pay,, and asks on that account to be discharged, and that the security she had given be canceled. It is evident that the appellee had not brought her shares of stock to maturity, or to the par value of $100 each, according to the contract, construed in the light of the certificate of shares, the terms and conditions on the back thereof, the articles of association, and the by-laws of the association. The decree of the circuit court is reversed, and the cause is remanded, with directions to the chancellor to ascertain what is due by the appellee on her certificate of shares, giving her credit for all payments, and charging her with her proportionate part of the losses of the association, and to render a decree for the balance due on the shares of stock, and to ascertain the present value of her stock according to the rule laid down in Roberts v. Am. Bldg. & Loan Association, 62 Ark. 572.
Wood and Riddick, JJ., dissent. | [
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Riddick, J.,
(after stating the facts.) We are of the opinion that the ruling of the circuit court was correct. It is not disputed that H. H. Hinkle was at the time of the issuance of the execution against him, and is yet, indebted to the Bank of Batesville for a sum of money greater than the value of such stock. The bank had a lien upon the stock for its debt, and, if this lien was superior to that of the execution creditor, a transfer of the stock would have availed nothing, for it would have been subject to a lien for a greater sum than the value of the stock. The statute provides that the stock of a corporation shall be transferred only on the books thereof, and that the corporation “shall at all times have a lien upon all the stock or property of its members invested therein for all debts due from them to such corporation.” Sand. & H. Dig., § 1342. The wagon company was bound to take notice of this statute. Besides, in this case, it was expressly notified of the bank’s claim and lien before it purchased the stock, and its purchase was subject to that lien. This stock had been previously pledged to S. R. Hinkle to secure a loan of money to H. H. Hinkle, but there was no transfer of the stock upon the books of the bank, and there is some controversy as to whether the bank had notice of such pledge before Hinkle became indebted to it. But we regard that as a matter of no importance here; for this is not a controversy between S. R. Hinkle, the pledgee, and the bank, and it is unnecessary to consider whether the lien of the bank was superior in law to that of S. R. Hinkle, or subject to it; for it appears that the liens of both of these parties were prior in point of time and superior to that of the wagon company.
The contention that section 1356, Sand. & H. Dig., gives priority to the execution lien of the wagon company cannot be sustained. That section simply declares that the provisions of' the statute for the enforcement of the bank’s lien shall not affect “any lien or right acquired by any other party by virtue of any attachment or levy of execution upon the stock of any stockholder in any such corporation.” Certainly, the legislature did not by this language intend .that the statutory lien of the corporation for the debt of its stockholder should be displaced whenever another creditor levied an execution or an attachment upon the stock. A lien of that kind, subject to be displaced by the act of the creditors, would be of little value. That section, as we understand it, only declares that the enforcement of the bank’s lien by the statutory method shall not affect other liens upon the stock, and leaves the question of the priority of such liens to be determined by proper pleadings to which the holders of such liens are parties, and under rules of law already in force. Oliphint v. Bank of Commerce, 60 Ark. 198.
We see nothing in the facts of this case to justify a finding that the bank had waived its lien as against the appellant wagon company, and we think the court rightly refused to order a transfer of the stock on the books of the bank.
Judgment affirmed. | [
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Humphreys, J.
Artie K. Palmer obtained judgment in the United States District Court at Little Eock against Garland County for $123,000. The county made the following payments on said judgment: $28,361 in 1912,; $20,091 in 1913; which left a balance of $74,000 due on said judgment on July 11, 1913. These payments were made out of a fund raised by a two mill levy on the dollar of the assessed valuation of the property of the county. This special two mill levy had been laid on the property of the county by the officers who were forced to make the levy by an erroneous order of the Federal court. The county coul4 only levy a five mill tax for general revenue purposes, and after paying the amount raised by the two mill levy, it only left the amount raised by a three mill levy to conduct the general business of the county. The county had gotten behind and scrip was reduced in value to fifty cents on the dollar. The payment of about $20,000 a year on these judgments had become very burdensome and greatly interfered with the affairs of the county. The finances of the county were in a deplorable condition. Being unable to compromise in any way with Artie K. Palmer, the county entered into a contract with Senator James P. Clarke and his associates, O. H. Sumpter and Charles Jacobson, to secure a modification of the erroneous judgment or order of the Federal court, and contracted with them to pay a fee of $6,000 in scrip as a contingent fee in case they could secure a modification of the judgment to the effect that one mill should be levied instead of two on the property of the county to pay said judgment. The contract provided that upon the contingency stated above $2,500 of said scrip should be issued immediately and $1,750 in one year and $1,750 in two years. The contract provided that the fee above mentioned should be paid, “in the event the party of the second part (referring to Senator James P. Clarke and his associates) succeeded by action in court, or in any other manner, in securing said modification or vacation of said judgment so Garland County will receive and retain for its general revenue fund one mill of the two mill levy made on November 25, 1914, to be applied and paid on said judgment, and so that Garland County will not hereafter be required to levy in any one year exceeding one mill to be applied and paid on said judgment.”
On November 30,1914, through the effort of Senator James P. Clarke and his associates, the United States court at Little Rock made an order, the material part of which is as follows: “It is considered and adjudged by this court that the order requiring a tax levy of two mills be, at the request of the relator, reduced to one mill on the dollar of the taxable property of Garland Countv. * * *”
Under the terms of the contract, Senator Clarke received the first payment of $2,500 in scrip, which covered his part of the $6,000 fee. When the next installment of $1,750 became due under the contract, a settle ment was reached by which Sumpter and Jacobson were allowed $3,000 in full settlement of the fee. From this order of allowance S. A. Buchanan, a taxpayer of Garland County, appealed to the circuit court. The circuit court, sitting as a jury, tried the' cause, disallowed the claim, dismissed the petition of appellants, and adjudged the costs against them.
From the' judgment dismissing their petition they have appealed to this court.
The first question involved in this appeal is whether the county court had authority to employ counsel to represent the county in securing a modification of the judgment in question. It is first contended that Sections 6392 and 6393 of Kirby’s Digest preclude the county court from employing counsel to represent the county in litigation in State and Federal courts without consulting the prosecuting attorney, or unless the prosecuting attorney was requested to act and then neglected or refused to perform the service, or unless the prosecuting attorney’s duties were such in character that he did not have time to properly represent the county. Said sections are as follows:
“Sec. 6392. Each prosecuting attorney shall commence and prosecute actions, both civil and criminal, in which the State or any county in his circuit may be concerned.”
“Sec. 6393. He shall defend all suits brought against the State, or any county in his circuit, prosecute all forfeited recognizances and actions for the recovery of debts, fines, forfeitures or penalties accruing to the State in any county in his circuit.”
These sections were under discussion in the case of Oglesby v. Fort Smith District of Sebastian County, 119 Ark. 567, and this court said: “We think the county court has power to employ additional counsel when in his judgment the interests of the county are of sufficient importance to demand it. * * *” The same sections of thé Digest were again before the court for consideration in the case of Spence & Dudley v. Clay County, 122 Ark. 157, when this court again said: “We held in the case of Oglesby v. Fort Smith District of Sebastian County that the county court, .under our Constitution and laws, was empowered to employ other counsel when in its judgment the interests of the county were of sufficient impor- . tance to demand it. * * *” The last expression of this court on the point involved is found in the case of Buchanan v. Farmer, 122 Ark. 562. In that case the court said “in case where the interest of the county in some! particular suit is of such magnitude and importance as to demand of the county court, in the exercise of such foresight and care as prudent business men bestow upon important matters, we have recognized the power of the county court to employ additional counsel. The presumption is that the county court will not put the county to the expense of extra counsel, unless such service is needed, but the action of the court in this regard is a matter in which its judgment and discretion is open to review of the appellate courts. ’ ’
.(1) The purport of the decisions just referred to is that under the Constitution of this State the county court, in the exercise of a sound discretion, may in cases of more than ordinary importance, employ counsel to represent the county. In matters of ordinary importance only it would be an abuse of the sound discretion of the court to employ counsel unless the prosecuting attorney refused to act or unless his time was so taken up with other matters that he could not act.
(2) The suit against Garland County for the enforcement of the large judgment erroneously entered against it was of such magnitude and importance as to require the employment of extra counsel. The business affairs of the county were greatly imperiled. The situation was not only a "matter of grave concern to the county court but to the levying court. The levying court in session adopted a resolution urging the county court to employ counsel to take the legal and necessary steps to the end that the order of the United States District Court might be vacated or modified in order that the county might be released from its intolerable and unbearable condition. Senator James P. Clarke was employed because it was believed the case would be carried to the Court of Appeals and because of his broad experience and familiarity with procedure in Federal courts. Under the undisputed facts in the case, it can not be said that the county court abused its discretion in employing counsel. The trial court, in rendering his opinion, found that “the matter of the reduction of the judgment was of such importance to the county that the court could not say that the county court would have abused his discretion by employing additional counsel.” There is nothing in this record from which it might be inferred that the county court ignored the prosecuting attorney or that the prosecuting attorney was excluded by virtue of the employment of Senator Clarke and his associates from participating in or even directing the course to be pursued. The record is entirely silent as to the attitude assumed by the prosecuting attorney with reference to this litigation. This case may also be differentiated from the case of Oglesby v. Fort Smith District of Sebastian County, supra, for the reason that in that case the court) found from the whole testimony that it was a contest between the outgoing and incoming county judge rather than a suit for the benefit of the county. In the instant case, the suit was clearly in the interest of and for the benefit of the county.
We think the learned trial court erred in declaring as a matter of law that the contract between the county and Senator Clarke and his associates was void for the reason that the prosecuting attorney was not consulted with reference to the course of litigation, and declaring as a matter of law that the effect of this contract was to ignore the prosecuting attorney or to confer the entire management of the case upon other counsel to the exclusion of the prosecuting attorney.
It is again insisted that the contract was ultra vires and void for the reason that it was an indirect undertaking to pay interest upon the county indebtedness. The mere fact that the interest on deferred payments, if the levy could be reduced, was used as a basis upon which to estimate the amount of fee fixed, is in no sense a contract to pay interest.
The court imits sound discretion had a right, subject to review of appellate courts, to fix a reasonable fee commensurate with the importance of the litigation contemplated. The presumption is the court fixed a reasonable fee. Nothing appears to the contrary in the record before us. The importance of the litigation, the necessity of immediate relief and eminence of counsel employed point unerringly to the conclusion that the fee fixed by the court was reasonable in amount.
It is further contended that the intention of the contract was that Senator James P. Clarke and his associates should obtain an order not only reducing the enforced levy from two mills to one mill, but that the judgment should be to the effect that the Federal court would not again require the levy to be raised until the entire indebtedness had been paid. The facts are that under the order obtained, the county was not required to pay more than the One mill levy in 1914, and that thereafter without the knowledge or consent of said attorneys the county appeared under citation or application in the Federal court and consented that the levy be increased in said order from one mill to a mill and a half. It would be unjust and inequitable to permit the county to defend against this claim on this account. Good faith alone on the part of the county would require it to have notified these attorneys that ah application had been made in the Federal court by Artie K. Palmer to raise the levy and to have requested them to defend against it.
It was error to disallow this claim and dismiss the petition of appellants. The judgment is, therefore, reversed and the canse remanded for further proceedings in keeping with this opinion. | [
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McCulloch, C. J.
The appellant, W. W. Armstrong, undertook to appeal from two'judgments of the probate court of Cross County, one being a judgment of allowance of a claim against the estate of appellee’s decedent, and the other a judgment directing the sale of real estate of' the decedent by said administrator. The circuit court' dismissed both of said- appeals, and an appeal has been prosecuted to this court from the order of dismissal. The transcript of the record sent up from the probate court shows that the appellant appeared in that court and had himself made a party to the proceedings on the part of the administrator to procure the order of sale, and the record shows that the probate court granted the appeal from the order of sale, and also from the order allowing the claim against the estate. Appellant filed an affidavit for appeal in the form prescribed by the statute. It does not, however, appear in the record, either in the order making appellant a party, or in the affidavit for appeal, that he was interested in the estate as a creditor or distributee. The record of the circuit court shows that the administrator filed a motion to dismiss the appeals, but the motion itself does not appear in the record. The court made an order dismissing the appeals and a few days later, during the same term, appellant filed his motion for reinstate-' ment of the cause, which was overruled, and appellant saved his exceptions and prayed an appeal to the Supreme Court, which was granted and time was allowed for filing a bill of exceptions, but no bill of exceptions was in fact filed.
In the state of the record just prescribed we are compelled to indulge the presumption that the court’s ruling in dismissing the appeals was based upon facts which justified it. Billingsley v. Adams, 102 Ark. 511.
It does not appear affirmatively anywhere in the record that appellant was interested in the estate, and appellee’s motion to dismiss may have presented that or some other issue of fact for the consideration of the court concerning the interest of appellant in the proceedings and the right to prosecute an appeal. This presumption is strengthened by the fact that the court gave time (120 days) in which to file a bill of exceptions. It is true that-the court at first entered an order of dismissal reciting that the motion to dismiss was heard upon the face of the record, but that order was set aside at the instance of appellant and the last order of dismissal contains no such recital, and it is fairly inferable that the court on the last presentation of the motion heard the matter on something more than the face of the record itself.
There being nothing to overcome the presumption of regularity and correctness of the court’s order of dismissal, it follows that the judgment must be affirmed, and it is so ordered. | [
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'Butler, J.
In May, 1929, the appellee and the appellant were husband and wife, and in a suit instituted by the former for divorce a decree was entered in her favor, and she was awarded the custody of their minor daughter with an allowance of $25 per month for the maintenance of the child. Subsequent to that date the appellee filed a number of petitions in the court praying for judgment against the appellant for a part of his personal and real property. These petitions have not been acted upon, and are not involved in this appeal. In these petitions the appellee complained that the appellant was in arrears in the payment of the allowance of $25 a month, and as early as September '9, 1929, the court found that the appellant was in default in the payment of the sums adjudged. From that date various supplemental petitions were filed by the appellee complaining of the failure of the appellant to pay the allowance due and various orders relative thereto were made by the court.
Finally, in the month of November, 1931, the court found that the appellant was in arrears in the payment of monthly maintenance in the sum of $195.65, including the month of August, 1931. On August 4,1930, in answer to one of the complaints of appellee, the appellant asked that the monthly maintenance be reduced. No order was made in this regard until the date of the order last above mentioned in which the monthly maintenance was reduced from and after .September 1, 1931, to $15 per month. The court made an order requiring the appellant to pay the sums in arrears or to execute a bond within thirty days from the date of the order conditioned that the sum would be paid on or before the first of May, 1932, and that, in default of payment or execution of the bond, the appellant be held in contempt. It appears that the appellant did not execute the bond or make payment of the sum in arrears, and later the court issued an order directing the sheriff to take him into custody and confine him in the county jail until further orders of the court. From the order made in November, 193ÍL, this appeal is prosecuted.
The appellant contends that the evidence taken at the hearing’ before the order appealed from was made disclosed the fact that his disobedience to the orders of the court was not wilful but because of his inability to pay the sums adjudged against him. He insists that because of this the order of the court holding that he be imprisoned was an abuse of the court’s discretion and should be reversed. It is true that the evidence discloses a state of facts calculated to excite sympathy for the appellant. He is a practicing attorney, and because of physical infirmities and a general falling off in business he had been able to earn but little for perhaps as long as two years before the date of the hearing. He has no other source of revenue except that derived from the practice of his profession. It is quite manifest that the condition of his health is very poor, and that this of itself would render him unable to successfully attend to his business.
If the above facts were all that the evidence disclosed, it would be quite evident that the order of the chancellor was not justified. This, however, is not all. It was shown that on various dates in the year 1930 and in the spring of 1931 the appellant had in the bank substantial cash balances, the smallest amount on hand in any one month from the first of August, 1930, until that date in 1931 being $488.21, and during the time of his default he had in the bank at one time as much as $1,165.21, and on the date of the hearing, when asked how much money he had in the bank at that time, he answered in effect that he did not know. In order to .justify Ms failure to pay the allowance, the appellant stated that most of the money in the bank at any one time belonged to Ms clients, and that his own personal account amounted to but a very small sum; that he had tried to borrow money to pay the appellee but was unable to do so. Whether or not the failure of the appellant to pay was in wilful disobedience of the order of the court or from inability to meet the payments was a question of fact, and the explanation given regarding the ownership of the cash deposited in appellant’s name shown to have been in the bank was unsatisfactory to the court, and we cannot say that the preponderance of the evidence is against his finding. In cases of this kind imprisonment can only be justified on the ground of wilful disobedience of the orders of the court. Ex parte Caple, 81 Ark. 504, 99 S. W. 830. But that question is for the court to determine from the evidence adduced. It will be noted that the appellant contented himself with the bare statement that most of the money he had on deposit in the bank was that of his clients, and he gave no explanation as to who those clients were and how much each had in the bank in his name. This would not have been difficult for him to show, and his failure to do so, in our opinion, justified the court in the conclusion reached.
The claim made by the appellant in the instant case is similar to that made in the case of East v. East, 148 Ark. 143, 229 S. W. 5, where the appellant attempted to explain his failure to comply with the order of the court by testifying that he had lost the money he had on hand at the time the decree was rendered, amounting to between two and three thousand dollars. His explanation, however, was not convincing to the chancellor, and on appeal we held that the latter was not bound to accept as true the appellant’s unsupported statement regarding the loss of his money.
The procedure in this case was substantially in con formity with that prescribed by our statutes guverning contempt cases, and it is fundamental that courts of chancery have the inherent power to enforce decrees awarding alimony, and that they may do so by punishing the recalcitrant party as for contempt. Ex parte Coulter, 160 Ark. 550, 255 S. W. 15. The decree of the chancellor holding that the appellant’s failure to pay did not arise from his inability to do so, but was in wilful disregard of the order of the court, not being against the preponderance of the testimony, must be affirmed. It is so ordered. | [
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Butler, J.
The Hope Basket Company, appellee, is a corporation, and was engaged on the day of the injury suffered by the appellant, Clarence J. Barnes, in loading its products into railroad cars for shipment. As a car was loaded, it was moved .forward by the employees of the company, and an empty car put in place to he loaded. The loaded cars were moved by Barnes and other employees- by means of crowbars. The employees would get at one end of the boxcar and place the crowbars under the rear wheels and raise them up. This would cause the car to move forward, and was called “pinching” the cars. In moving one of the cars, Barnes was using a crowbar under one of the rear wheels and other employees were assisting in the operation. It was discovered that the brake was set on this car. Some one called attention to this fact, and one of the employees started to crawl onto the car for the purpose of releasing it. Before he had g'otten on the car however, a boy not in the employ of the company and who had been forbidden to meddle or trespass on the property of the company, suddenly appeared and voluntarily climbed up and reached the brake. The brake was kept in place by an appliance called a ratchet, to release which another appliance, called the brake wheel, would be turned. The boy did not seem to have enough strength to turn the wheel without the use of a lever. While he was attempting to move the wheel, some one from the ground below handed him a canthook handle which he inserted in the spokes of the wheel and thus was. able to move it. When he did this, the ratchet was released, causing the wheel to move suddenly with sufficient violence to wrench the canthook from the boy’s grasp, propelling the same downward in such manner that it struck the appellant Barnes on the head, causing the injury and damage for which he brought suit.
The negligence alleged in the complaint was that the Hope Basket Company failed to provide a safe place in which Barnes might do this work, and “that the foreman of the crew gave the order to trip the brakes, knowing Barnes’ position and knowing that there was in the wheel at the time a canthook plainly visible to the foreman, if he had looked, and not visible to Barnes on account of his position.” The answer denied the allegations of negligence and alleged that the injury was not the result of any negligent act of an employee, but of a boy fifteen years of age not in the employ of the company who, without having been directed by any one in authority, and of his own volition, hurriedly climbed to the top of the boxcar, and, using a stick as a lever, performed the act which occasioned the injury to the appellant. On the trial of the case there was but little conflict in the testimony, which established the facts heretofore stated. After a number of witnesses had testified, the court asked if all the testimony relative to liability on the part of the defendant had been introduced, and, on being advised that it had, indicated that the court was of the opinion that the evidence failed to establish a cause of action against the defendant and declined to hear any testimony regarding the extent of the injury or the amount of damage. Thereupon the defendant moved for a directed verdict. Counsel for plaintiff objected on several grounds, and asked that he be given the right to amend the complaint to conform to the proof, and asked the following question: “Will the court let the record show that the request of the plaintiff to amend the complaint to comply with the evidence is granted?” The court answered, “Yes, sir.’’ Counsel then continued, saying: “And the plaintiff excepts to the ruling of the court at this time in granting a peremptory instruction for the defendant for the reasons herein stated and generally. ’ ’
The jury returned a verdict for the defendant at the direction of the court, from which is this appeal.
The record before us shows that the trial judge granted the request that the complaint he amended to conform to the proof, but clearly indicates that in his opinion in any view of the evidence no negligence attributable to the defendant was shown, and, without waiting for any amendment to be offered or made, instructed a verdict for the defendant. It is suggested by the ap-pellee that the appellant’s failure to amend the complaint precludes him from now complaining, but it is manifest that the amendment would have been unavailing in the trial court and a vain thing to suggest what the amendment would be as the court had all the evidence in mind. It is always within the sound discretion of the court to permit a complaint to be amended to conform to the proof; and where the allegations in the complaint are insufficient, it is proper at the conclusion of the evidence to .treat the complaint as amended to conform to the proof, where there are no objections to the introduction of the evidence and no claim of surprise is made. K. C. Sou. Ry. Co. v. Rogers, 146 Ark. 232, 225 S. W. 640; L. & C. Co v Sanders, 173 Ark. 362, 292 S. W. 657; Thomas v. Spires, 180 Ark. 671, 22 S. W. (2d) 553.
It must have been the view of the court that, in any view of the testimony adduced, there was no liability, and, if this be true and all reasonable minds would have drawn the same conclusion from the facts in evidence, the action of the court was proper. C. R. I. & P. Ry. Co. v. Daniel, 169 Ark. 23, 273 S. W. 15. But a case should not be withdrawn from the jury or a peremptory instruction given unless the conclusion follows as a matter of law that no recover can be had upon any view of the facts which the evidence tends to establish. S. W. Bell Tel. Co. v. Shelby, 167 Ark. 488, 268 S. W. 860; Gladys Belle Oil Co. v. McGee, 172 Ark. 1176, 291 S. W. 72. It is apparent that the boy who released the brake did so of his own motion and without the suggestion from any one, and that he was a mere trespasser for whose sole act the company was not responsible. Neither can we see any negligent act on the part of the foreman, and the complaint made that his absenting himself from the work and his failure to supervise it was the evidence of lack of ordinary care for the safety of the employees who were doing the work. He was nearby preparing a boxcar for loading, and the particular operation in which the men were engaged was a simple one; they were experienced in this and required no supervision. The ap-pellee insists that there is no testimony to the effect that any of the employees at the boxcar had authority to employ the boy or that under the circumstances the boy could be deemed to have been an emergency servant. To this we agree. If there is any negligence for which the company is responsible, it was no act of the boy alone, but there is evidence that he was seen by the employees as he was engaged in the attempt to turn the brake wheel, that none of them forbade him to do this act, but that some one from the ground below made it possible for him to perform the act in a negligent way by handing him a canthook handle to aid him in his efforts. If this was done by one of the employees of the company engaged in the work of the company, this would present a question for the jury to say whether or not under all the circumstances this was negligence, concurring with the act of the unauthorized volunteer, which was the proximate cause of the injury.
This being our view, we are of the opinion that the court erred in giving the peremptory instruction to find for the defendant. The case will therefore be reversed, and the cause remanded for such further proceedings as the appellant may be advised in accordance with the law and not inconsistent with this opinion.
McHaNey/J., dissents. | [
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Mehaeey, J.
The appellant was convicted of the crime of selling liquor, and his punishment was fixed at one year in the penitentiary. This appeal is prosecuted to reverse said judgment of conviction.
The first count in the indictment, the count on which appellant was tried, is as follows: “The Grand Jury of Pope County in the name and by the authority of the State of Arkansas accuses H. T. Taylor of the crime of selling liquor committed as follows, to-wit: The said H. T. Taylor in the county and State aforesaid, on the 15th day of October, 1931, did willfully, unlawfully, and feloniously sell and give away, and was willfully, unlawfully and feloniously interested directly and indirectly in the sale and giving away of ardent, vinous, malt, spirituous and fermented liquors and alcoholic spirits and a certain compound and preparation thereof commonly called tonics, bitters and medicated liquors, against the peace and dignity of the State of Arkansas.”
It is contended by appellant, first, that the evidence is not sufficient to sustain the verdict. J. A. Worsham and Fred Martin each testified that he bought whiskey from appellant. This evidence was contradicted by appellant and his witnesses, but whether the evidence of the State’s witnesses was true or not was a question for the jury and not for this court. It would serve no useful - purpose to set forth the evidence. Where the evidence is conflicting, as it is in this case, the verdict of the jury is conclusive. It is the settled rule in this State that the credibility of the witnesses and weight to be given their testimony are questions for the jury, and, if the verdict is supported by substantial evidence, it cannot be disturbed by this court.
“Under the settled rule in this State, the jury are the judges of the credibility of the witnesses, and where there is any evidence of a substantial character to support the verdict of a jury, we are not at liberty to disturb it upon appeal, notwithstanding we might believe it was against the weight of the evidence. ’ ’ Fields v. State, 154 Ark. 188, 241 S. W. 901; Cox v. State, 160 Ark. 283, 254 S. W. 542; Rhea v. State, 104 Ark. 163, 147 S. W. 463; Nelson v. State, 139 Ark. 13, 212 S. W. 93.
Appellant also contends that the testimony of Fred Martin was inadmissible, and that it should have been excluded. It is insisted that appellant was placed on trial in the case wherein J. A. Worsham was the prosecuting witness. There is nothing in the record tending to show this. Appellant was not charged with selling whiskey to Worsham. It will be observed from the indictment above set out that he was simply charged with selling whiskey without naming the party to whom it was sold. ' The evidence of Martin was therefore admissible.
Appellant says that the sale to Martin was not charged in the indictment. We have already shown that the indictment did not name the person to whom the whiskey was sold. It is true that Worsham’s name was on the indictment, and Fred Martin’s name was not indorsed on the indictment, but the question of Fred Martin ’s name not being indorsed on the indictment was not raised in the motion for new trial. The motion merely stated that his testimony was incompetent, and that the court should have excluded it. The statute requiring the names of witnesses to be indorsed on the indictment is directory. Wood v. State, 157 Ark. 503, 248 S. W. 568.
Appellant made no request to have the names of the witnesses indorsed on the indictment, and no request was made for a list of names of the witnesses. Appellant testified that he did not sell liquor to Fred Martin at the time Martin said he bought it or at any other time, but be did not claim either at the time Martin testified or at any other time that he could have other witnesses to contradict Martin. He would not he entitled to a new trial on account of Martin’s testimony without making some showing that, if a new trial was granted, he could produce witnesses to contradict Martin. This he did not offer to do. No other question is argued by appellant. The jury was properly instructed, there was substantial evidence to sustain the verdict, and the judgment is affirmed. | [
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Smith, J.
Bettis owned a horse, which he traded to Boren fpr a mule. According to Boren, the trade was induced by Bettis’ false representation and warranty that the horse “whs sound and clear of mortgage,” when, in fact, the horse was not sound, and was mortgaged to the Commercial Bank of Crawford County. Bettis denied that the horse was unsound, or that he had made any warranty in regard to its soundness. He admitted it was under mortgage, but stated that the cashier of the bank had given him permission to trade the horse, and that he advised Boren of this fact before the trade. Boren denied that he had any knowledge of the mortgage until after the trade, and testified that, upon being so advised, he asked the cashier of the bank about the mortgage, and that officer told him the bank did have a mortgage on the horse, but would release it. The mortgage had not been released at the time of the trial in the court below. Boren testified that the horse was wind-broken and worthless, and that, upon discovering this fact, he carried the horse co Bettis’ house, and,turned him loose there. That his mule returned to his lot, and he took it up and had it in his lot when Bettis brought this suit in replevin to recover its possession.
The court submitted the cause to the jury, over appellant’s objection, upon the single issue of the soundness oi tne mule, and, over appellant’s objection, gave the following instruction:
••Tiie defendant, James Boren, admits that the cashier of the Bank of Alma told him that he had given Bettis permission to trade the horse, and, the bank making no claim for the horse, you are, therefore, directed by the court not to consider the matter of the mortgage in making up your verdict. ’ ’
There was a verdict and judgment for the plaintiff.
It is argued, as ground for the reversal of the judgment, that the court erred in giving the instruction set out above. This instruction is attacked upon two grounds. The first is, that it does not correctly state Boren’s position, as he did not admit that the cashier had given Bettis permission to trade the horse, nor did he admit that the bank made no claim to the horse; that his admission was, that the cashier told him, after the trade, that he would release the mortgage, but that the cashier did not tell him that he had given Bettis permission to trade the horse. The second objection is, that the instruction withdrew from the jury any consideration of the falsity of the warranty against encumbrances.
(1) It appears that the instruction does not- correctly state the position of appellant. It was Bettis, and not Boren, who testified that the cashier had given Bet- . tis permission to trade the horse. Boren testified that he traded for a “clear horse,” and this he did not get. While he did admit that the cashier told him he would release the mortgage, the mortgage had not been released. Boren had the right to demand a warranty that the horse be not mortgaged, and this he said he did. If there was a representation that the horse was not mortgaged, it was false, and a subsequent promise of the cashier to release the mortgage, which appears to have been made without consideration, does not satisfy the warranty. Boren’s right to an unencumbered horse was not discharged by the cashier’s promise to thereafter satisfy the mortgage, which Bettis had said did not exist.
This case is not controlled by the case of Mason v. Bohannan, 79 Ark. 435. There it was said that the remedy for the breach of an express warranty against encumbrances, in the absence of fraud or concealment of fact, is to sue for the amount of damages sustained by reason of such encumbrances. That case was an action in replevin for a horse, brought upon the theory that a breach of a warranty against encumbrances entitled the purchaser to rescind the contract. But it was undisputed there that the purchaser knew of the encumbrance, and the issue of fact was, whether there was a warranty against this encumbrance. Here there is an allegation of fraud and concealment, and the affirmative statement is made by Boren that he would not have traded had he not been deceived by the false representation made him.
A similar, case, and one which announces the principle which controls here, is that of Parker v. Boyd, 108 Ark. 32. We quote from the syllabus of that case the following statement of the law:
“In order to entitle plaintiff to rescind a trade of a horse on the ground of false representations by the defendant, there must appear some representation of a material fact concerning the horse upon which plaintiff relied and which was understood by the parties as an absolute assertion concerning the condition of the horse, and not the mere expression of an opinion.”
It was there also said:
“In order to entitle plaintiff -to rescind the trade, there must have been some misrepresentation of a ma-' terial fact concerning the mare which the plaintiff relied upon and which was understood by the parties as an absolute assertion concerning the condition of the mare, and not the mere expression of an opinion.”
(2) Here we have evidence that there was a misrepresentation of a material fact concerning the horse, which was relied unon and was understood bv t.bp narties as an absolute assertion concerning the title to the horse, and the court should, therefore, have submitted the question of the right of rescission as the result of the false representation.
Tiie facts in the case of Merritt v. Robinson, 35 Ark. 483, are very similar to the controlling facts of this case, and the principles there announced are controlling here. It was there said:
(3) “Where the vendor is guilty of fraudulent misrepresentation, or concealment as to the essential inducement to the contract, the vendee would, on discovery thereof, have a right to rescind the contract, although no special agreement were contained therein authorizing him to rescind; for fraud, in all cases, gives the party defrauded a right utterly to reject the contract. Story on Sales, § 420; Hilliard on Sales, p. 326; Strayhorn v. Giles, 22 Ark. 521.
“But if the vendee elect to rescind the contract, on discovering the fraud, he must offer to do so within a reasonable time. Ib.
“If a vendor sells goods which he knows to be mortgaged, without giving information thereof to the purchaser, the sale would be considered as fraudulent. (Story on Sales, § 181; Arnott v. Biscoe, 2 Vesey 95). Appellant should have made known to appellee, when he swapped him the pony for the mule, that the pony was under mortgage to Pierce. Pair, honest dealing required this. The suppression of the truth is equivalent to falsehood, when the vendor is under obligation, as he was in this case, to disclose the truth. Hilliard on Sales, p. 326.
“If appellant had frankly told appellee at the time of the swap, that the pony was mortgaged to Pierce, as he should have done, but that he had permission from Pierce to trade the pony, and appellee had thought proper to make the exchange of animals after being so informed, then there would have been no fraud in the transaction on the r>art of appellant.”
It follows, therefore, that, for the error of the court in failing to submit the question of appellant’s right of rescission, the judgment must be reversed and the cause will be remanded for a new trial. | [
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Humphreys, J.
Appellant instituted suit against appellee in the circuit court of Pulaski County, Third Division, to recover damages for an injury received in falling from the first floor of the cold storage plant owned by appellee, to the sub-basement floor through an open elevator shaft, on account of the alleged negligence of appellee in leaving the shaft open, unguarded, unlighted, and in darkness, and without danger sign; and by using the elevator platform as part of the floor of an unguarded and commonly used walkway; and by not informing appellant that the elevator would be used at the time the injury occurred by others than himself.
Appellee filed an answer, denying the material allegations of the complaint, and interposing the additional defenses of contributory negligence and assumed risk by appellant.
The cause was submitted upon the issues joined and the testimony adduced by the parties, at the conclusion of which the court instructed a verdict against appellant, and, in keeping with the verdict, rendered a .judgment dismissing appellant’s complaint, from which is this appeal.
The facts are undisputed and are, in substance, as follows:
Appellant was, and is one, of the owners and the manager of the Mallard Provision Company. It leased space from appellee in the cold storage plant owned by appellee to store its products on the fourth floor and a room on the top or eighth floor to manufacture specialties and sausage. One of the elevators in the building was six by eight feet, and ran from the' bottom to the top of the building through openings that fit it, and was operated by any of the employees of appellee or its tenants, or their employees, indiscriminately. A stairway also led from floor to floor of the building. The main entrance doors of the building opened at seven o’clock a. m. and closed at six o ’clock p. m., but there was a side entrance for the admission of tenants and their employees at an earlier hour. The floor openings, or wells, through which this, as well as other elevators in the building, was operated had no railings, guards, lights or danger signs on or about them. "When the elevators were not being pulled up and down by some one authorized to use them, they were at a standstill or on a level with the corridor floor, and were used as a part of the walkway for the time being. The construction of the building and conveniences therein were the same on the date appellant’s company leased the space in the building as when he received his injury. It was provided in the lease that appel-lee should furnish “gas, water, light and power for the use of appellant” and to “furnish elevator service to cooler and sausage-making room and all facilities * * * to be available at all times. ’ ’ Appellant’s company leased the space on October 31, 1930, and entered into possession thereof January 12, 1931. On February 11, 1931, appellant, together with his employees, entered the build ing through the side entrance at an early hour, and, after assigning his employees to their duties in the storage and sausage departments, he entered an elevator on the fourth floor and let himself down to the first floor, where he left the elevator in place and walked out to the platform on the outside of the building for a few moments. During his absence, some one moved the elevator to the fifth floor. Upon his return, thinking that the elevator was where he left it, he stepped into the opening’ or elevator well without looking, and fell down the shaft twenty-four feet onto the concrete floor of the sub-basement and injured himself. The accident occurred at 6:40 o’clock a. m., just about daylight. There were no lights in the corridor, and appellant made no effort to turn the lights on in the elevator when letting himself down a few moments before the injury.
As between a landlord and tenant, the general rule is that, “in the absence of statute or agreement, the landlord is under no legal obligation to light common passageways for the benefit of tenants. ’ ’ 36 C. J., § 891, p. 214. In § 893 of the same work, it is stated: “On the analogy of a lack of duty on the part of the landlord to light common passageways, it has been held that a landlord is not liable for injury received by tenant through the failure of the landlord to supply rails or guards when the condition was the same at the time of letting. ’ ’
There is no law requiring that elevator openings in a commercial cold storage plant, constructed for the use of its officers and employees and its tenants and their employees, or to carry commodities from one floor to another, must have rails or guards around them or danger signals upon them, or that the corridors in cold storage plants must have lights in them; and there is nothing in the written lease so requiring’. The record is silent as to the necessity for any of these things in the construction or operation of cold storage plants. We cannot indulge the presumption that the shafts or wells in which the elevators were lifted and lowered from floor to floor were improperly constructed because they had no railings around them or guards or signals upon them, considering the uses for which they were intended, nor can we presume that it constituted negligence to use the elevators as a part of the walkway when on a level with the corridor floors, nor can we presume a necessity for lights in the corridors. Neither the law nor the provisions of the contract made such requirements. Since negligence was not shown on the part of appellee, it is unnecessary to allude to the defenses of contributory negligence or the assumption of the risk by appellant.
The judgment is affirmed. | [
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Hart, J.,
(after stating the facts). (1) Counsel for the defendants seek to uphold the judgment by invoking the rule that where the bill of exceptions does not affirmatively show that it contains all the evidence and there is no language from which it is naturally and necessarily inferred that it contains all the evidence, the rulings of the court upon the evidence and instructions are presumed to be correct. Bowden v. Spellman, 59 Ark. 251. In that case the bill of exceptions began as follows:
“Be it remembered that, on the trial of this cause, evidence was introduced tending to show the following state of facts. ’ ’ The court held that the statement was not conclusive that there were not other facts shown on the trial which if brought before this court would sustain the rulings and judgment of the lower court. In other words, the court held that the 'bill of exceptions in that case only showed by implication that there were no other facts shown. Here the bill of exceptions is essentially different. We quote from the bill of exceptions as follows:
“On the trial of the above cause at the June, 1916, term of the above styled court, the following proceedings were had:
“The plaintiff introduced testimony to establish the several allegations of her complaint.
“The defendants introduced testimony to disprove each and every allegation of plaintiff’s complaint.
“On the trial of the causé, the court gave the following instructions on behalf of the plaintiff.”
This is not as definite and certain as a bill of exceptions ought to be where a reversal is sought for a failure of proof. It is true that the bill' of exceptions does not follow the proper practice by expressly stating that it contains all the evidence introduced, but it does appear .with reasonable certainty that no other evidence was introduced. It states that the plaintiff introduced testimony to establish the several allegations of the complaint. That the defendant introduced testimony to disprove each and every allegation of the plaintiff’s complaint. Then follows the instructions given by the court. From this the natural inference would be drawn that no other testimony was introduced than that referred to, and we think the bill of exceptions was sufficient to present the errors for which a reversal of the judgment is sought. Overman v. State, 49 Ark. 364; Hibbard v. Kirby, 38 Ark. 102; Leggett v. Grimmett, 36 Ark. 496; Walker v. Noll, 92 Ark. 148.
It is next contended that the court erred in giving instruction No. 7, which is as follows:
“If you find from the evidence that the plaintiff was invited to get on this train at Monett and was required to leave the train at Winslow because it did not stop at Mountainburg, and that this caused the injury complained of, this would not be the proximate cause of the injury, unless a man of ordinary care and prudencé would, or should, have anticipated injury to her from allowing her to ride on this train as far as Winslow.”
(2-4) We think the court erred in giving this instruction. A railroad company may make a rule to require passengers to purchase tickets before entering the cars, provided reasonable opportunities are offered to comply with it. St. Louis & San Francisco Ry. Co. v. Blythe, 94 Ark. 153; St. L. S. W. Ry. Co. v. Hammett, 98 Ark. 418. Here the railroad company had a rule requiring- the passengers to exhibit their tickets to the train porter or brakeman before they were allowed to enter tbe car. Tbe' train man was placed there by the company to enforce its rules and prevent passengers from entering a train upon which they did not have transportation. It was in the line of his duty to give information and to make representations in reference to the rights of passengers holding tickets entitling them to transportation over its line of road. It would be a strange state of affairs if the agent had authority to prevent the passenger from entering a train, who did not have proper transportation, and still not have the authority to give reasonable and proper information concerning trains upon which such tickets might be used and the places where the train would stop and discharge passengers. When the train man told plaintiff her ticket was good on that train and that the train would stop at Mountainburg to allow her to get off, the company was bound by his representations in the absence of knowledge on the part of the passenger that the information given was not correct. C., R. I. & P. Ry. Co. v. Blundell, 127 Ark. 82; Hutchinson v. Southern Ry. Co., 140 N. C. 123, 6 A. & E. Ann. Cas. 22; Louisville & Nashville Rd. Co. v. Scott, 141 Ky. 538, Ann. Cas. 1912, C-547, and case' note. This principle was also recognized in St. L., I. M. & S. Ry. Co. v. Atchison, 47 Ark. 74, where the court held that where a passenger is misled by an agent authorized to speak for the company, he has his action against the company for the misdirection, and also in Railway Company v. Adcock, 52 Ark. 406. A reading of instruction No. 7 shows that it is in direct conflict with this rule. It is true at the instance of the plaintiff correct instructions on this phase of the case were given, but the court has uniformly and repeatedly held that it is error to give conflicting instructions. We need only cite a few cases on this rule. Brunson v. Teague, 123 Ark. 594; Chicago Mill & Lumber Co. v. Johnson, 104 Ark. 67; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140; McCurry v. Hawkins, 83 Ark. 202.
For the error in giving instruction No. 7 the judgment must be reversed and the cause remanded for a new trial. | [
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Kibby, J.
This appeal challenges the correctness of a decree of foreclosure on certain lands as being erroneous because of an excessive amount recovered and the failure of the court to dismiss the action and render judgment for the amount of taxes paid by appellant under a void tax sale of the lands in accordance with the statute, ^ 3709, 3710, Crawford & Moses’ Digest.
The suit was filed August 22, 1931, alleging that on July 23, 1926, the note and mortgage was given to the Pittsburg Mortgage & Investment Company to secure a loan of $2,500 bearing 6 ,per cent, interest from date until maturity, interest payable semi-annually, represented by 14 interest notes to bear 10 per cent, interest after maturity, and reciting that failure to pay any. one at maturity should cause the entire indebtedness to be come due and payable. The note and mortgage were made exhibits A and B to the complaint, and had been sold and assigned to the plaintiff before maturity.
It was alleged that the interest note for $75, due February 1, 1930, the one for $75 due August 1,1930, and another for $75 due February 1,1931, were past due and unpaid; and that plaintiff elects to declare the entire indebtedness due.
The principal note provides: “That the sums promised to be paid shall bear ten per cent, interest after maturity, whether the same becomes due according to the terms hereof or by reason of default of any payments of principal or interest.” The mortgage recites: “That the principal note of $2,500 shall bear six per cent, interest until due and, after maturity, eight per cent.”
The noté is made due and payable 7 years after date; and the mortgage also provides that, if default be made in the payment of the notes when due, the whole indebtedness shall, at the option of the holder, become immediately due and payable.
A general demurrer was filed but not passed on, and later an answer denying all the allegations of the complaint was filed by appellant.
The execution of the note and mortgage, the recording thereof and the assignment to the plaintiff, as alleged, is conceded, as is also the nullity of the State’s proceedings and the deed to appellant, on account of the nonpayment of the taxes. A ppellant paid the State $90 for the deed under the tax sale.
It is first insisted that the court erred in not. dismissing this suit for failure to comply with the statute, §§ 3709, 3710, Crawford & Moses’ Digest, requiring an affidavit of tender of taxes first filed, etc. This assignment of error can be disposed of simply by stating that no motion was made for dismissal of the suit or any objection made to the proceedings therein because of any such failure, and it was a matter which could be waived, and was, in fact, waived by such failure to make timely objection thereto. Spain v. Johnson, 31 Ark. 314; Trigg v. Ray, 64 Ark. 150, 41 S. W. 55. Then, too, this is only a proceeding to foreclose a mortgage on certain lands with an allegation that the tax forfeiture thereon and deed thereunder was void, as the court held them to be.
Neither was the decree rendered for an excessive amount as claimed. The note contains the following clause:
“All sums herein promised to he paid shall hear ten per cent, per annum interest after maturity, payable annually, whether the same becomes due according to the terms hereof or by reason of default of any payment of principal or interest. This clause is preceded by the following acceleration clause: “If default be made for ten days in the payment of any sum, either principal or interest, after the same becomes due and payable according to the terms thereof, then the whole amount herein promised to be paid shall, at the option of the holder hereof, at once become due and payable.”
In that part of the mortgage pertaining to the interest rate after maturity the figure 8 is printed, and, by oversight evidently, was not marked out or erased and the fignre 10 substituted therefor. The note, however, as already recited, provides: “All sums herein promised to be paid shall bear ten per cent, per annum interest after maturity, payable annually, whether the same becomes due according to the terms hereof or by reason of default of any payment of principal 'or interest.” The provisions of the note would control as against the recite in the mortgage, which is only a security and incident to the debt. 1 Jones on Mortgages (7th ed.), page 484; Farnsworth v. Hoover, 66 Ark. 367, 50 S. W. 866.
It is contended that the principal note did not bear an increased rate of interest until the date of its maturity 7 years after date, and then that such increased rate should only be calculated from August 22, 1931, the day suit was filed, to January 11,1932, the date of the decree. The interest was calculated at 10 per cent, from August 1, 1931, the date when the last interest note due became delinquent, and when the principal and other indebted ness was declared due by reason of the default. Under the terms of the contract, it was agreed that all sums promised to be paid should bear interest at 10 per cent, per annum after maturity, whether same became due according to the contract or by reason of the acceleration clause for default made in payment of principal or interest, and the payment of the interest on the principal contract at the increased rate became due upon any default made in payment of principal or interest according to the terms of the contract; and the court did not err in so holding.
Neither was appellee liable to the payment of the amount of the consideration for the void tax deed from the State attempting to convey the lands. It is conceded that the court properly held the tax forfeiture and deed void, and certainly appellee could not be required to pay such amount, not being bound in the first instance to pay the taxes on the land.
We find no error in the record, and the decree is affirmed. | [
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McCulloch, C. J.
This is an action instituted by appellant to quiet title to a tract of land containing fourteen and two-thirds acres in the southeast corner of the northwest quarter of the southeast quarter of section 14, township 4 north, range 5 west, in Prairie County, of which he is in possession, and is more particularly described as follows:
“Beginning at the southeast corner of the said northwest quarter of the southeast quarter of said section 14 and run thence north 836 feet to Beine creek; thence up Beine creek to a point 844 west of said east line; thence south to quarter section line running east and west between the northwest quarter of the southeast quarter and the southwest quarter of the southeast of said section 14, and thence east to point of beginning, containing fourteen and two-thirds acres more or less.”
Two other small tracts adjoining the one described above were embraced in the complaint, but appellee in his answer disclaimed any assertion of title or right thereto, and those two tracts were thus eliminated from the controversy. Appellee claimed title to the aforedescribed tract, and presented a cross-complaint, asking that his title be quieted and that possession be awarded to him. On the final hearing the chancery court dismissed the complaint of appellant as to this tract of land and granted the prayer of appellee’s cross-complaint. Neither of the parties set np any claim of title except by adverse possession, but both attempt to establish title in that way.
Appellant asserts title under deed from the heirs of Wm. M. Warner, who died in possession of the land, prior to the year 1890, the precise date not being disclosed in the record. Warner occupied three small contiguous tracts of land aggregating twenty-eight acres, including the tract involved in this controversy. One of the tracts contained seven and one-third acres in the southwest corner of the northeast quarter of the southeast quarter of section 14; and the other tract contained six acres in the northwest corner of the southeast quarter of the southeast quarter of said section 14. The land was under fence and in cultivation, and Warner occupied the land, claiming it as his own, up to the time of his death, and after his death his heirs remained in actual occupancy under claim of ownership by inheritance until they removed from the place in the year 1890. From that time until the Warner heirs conveyed to appellant in the year 1911 the land was looked after for them by agents who resided at Des Arc. There is no attempt on the part of appellant to deraign title back of the occupancy of Wm. M. Warner, but, as before stated, the sole attempt was to establish title by Warner’s adverse possession for more than seven years.
On October 30, 1899, A. L. Erwin executed to appellee a deed conveying land under the following description: “All that part of the following described tract of land which lies north of Beine creek, towit: Commencing 418 feet north of the southeast corner of the northwest quarter of the .southeast quarter of section 14, township 4 north, range 5 west; thence run north 602 feet, thence west 724 feet; thence south 602 feet; thence east 724 feet to place of beginning. All that part of above description which lies north of Beine creek is hereby conveyed, which contains six acres more or less.”
Appellee testified that at the time of said conveyance lie owned all of the northwest quarter of the southeast quarter of section 14 north, of Beine creek, and believing that Erwin conveyed to him all of that subdivision lying south of Beine creek, he took possession of the land in controversy which lies south of said creek, and proceeded to inclose and occupy the same. He claims title by adverse possession for more than seven years. >
(1-2) The first question presented is whether or not appellant has established his title, as asserted, by actual adverse possession on the part of "Wm. L. Warner, the father of his grantors, for it is a principle too well set'tled for further controversy that plaintiff must gain relief, if at all, in suits of this character on the strength of his own title, and not on the weakness of the title of his adversary. We are convinced, however, that appellant has fully established his title by showing that Wm. L. Warner was in actual occupancy of the land in controversy for more than twenty years, claiming to be the owner thereof, and that he died while holding such possession. While there is a little conflict in the testimony as to the extent of Warner’s possession, there is scarcely any room for substantial controversy that he did in fact occupy the whole of the tract and held it within the boundaries of the fences which he erected. One of the witnesses. the credibility of whose testimony is unchallenged, states that Wm. L. Warner occupied this land and cultivated it as far back as 1878. Warner’s house was situated on the tract in the northeast quarter of the southeast quarter of section 14, but the cleared land included the tract in controversy. The testimony of appellee himself shows that shortly after he received a deed from Erwin and looked at the land he found the old fences, or some of them, which inclosed this land.
(3) It being conclusively established that Warner acquired title by adverse possession, the next question presented is whether or not that title was wrested from the Warner heirs by adverse possession on the part of appellee, who. attempts to prove that he took actual possession of the land in the summer of the year 1900, and occupied the whole tract continuously until the year 1913 or the year 1914. Appellee stated emphatically in his testimony that he took possession of every foot of the land immediately after his purchase on October 30, 1899, and that he continued to occupy it until appellant entered upon the land as above stated, but a careful examination of his testimony as set forth in the record shows that he was not in a position to testify emphatically concerning the actual occupancy of the land. He states that he was engaged in his official duties as circuit clerk from the date of his deed up to 1904, and saw very little of the land himself, but left it to others to look after for the reason that it was of very little value. Appellee’s deed from Erwin did not in fact describe any of the lands in controversy, for it only purported to convey land north of Beine creek. Appellee claims that there was a mistake in drafting the deed, and that it should have read south instead of north of the creek, but., even giving that construction to the language of the deed, it did not purport to convey all of the lands in controversy, but only about six acres of it. Appellant shows very clearly that appellee did not occupy the land in controversy, at least during some of the years covered by the period of his alleged occupancy. Appellant shows by the testimony of witnesses, one of whom at least is conceded to be unimpeachable, that appellee did not occupy this tract at all, but that on the contrary the land was continuously occupied by tenants of the Warner heirs.
There is considerable conflict in the testimony as to the actual occupancy of the land throughout the years which followed the conveyance by Erwin to appellee, but; we think the conflicts are reconcilable upon the theory that each party, through tenants, occupied the lands at different times during that series of years. It was of very little value and most of the time was not in cultivation. In fact, the evidence fails to show that it was in cultivation any considerable length of time. Appellee repaired or rebuilt the fences, or at least part of them, and pastured stock on the land, part of the time putting his own stock there and at other times permitting others to do so.
The testimony of the appellant, on the other hand, is quite convincing that the agents of the Warner heirs rented this land for different years during that period and that the same was occupied by the tenants to whom the land was rented. Appellee’s occupancy is not shown to have been continuous for the period of seven years. It was .a fitful or intermittent possession, which was insufficient to ripen its title. Scott v. Mills, 49 Ark. 266; Brown v. Bocquin, 57 Ark. 97; Driver v. Martin, 68 Ark. 551; Wagner v. Head, 94 Ark. 490.
It was not sufficiently notorious, for it does not appear that the agent of the Warner heirs, who lived in Des Arc, but a short distance away, was ever advised of appellee’s occupancy of the land though the agent was looking after it for the heirs.
Ojir conclusion is, therefore, that the evidence fully establishes appellant’s title by limitation under the Warner occupancy, and fails to' show that appellee acquired title by adverse possession. Appellee does not assert title of any other character.. The chancellor erred in rendering the decree in favor of appellee, and the same is reversed and the cause remanded with directions to enter a decree in favor of appellant quieting Ms title to the land in controversy. | [
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Butler, J.
Block No. 17, Faust’s Addition to the city of Little Rock, is a square parcel of land hounded on the north by Sixth Street, on the east by Summit, on the south by Seventh Street, and on the west by Schiller. It is laid off in lots, lots Nos. 1, 2 and 3 comprising the northwest quarter of said block, lots Nos. 4, 5 and 6 the southwest quarter, lots Nos. 7, 8 and 9 the southeast quarter, and lots Nos. 10, 11 and 12 the northeast quarter. John D. Constantine owns and occupies the east 50 feet of lots 1, 2 and 3; P. W. Crawford is the owner of the east one hundred feet of lots 4, 5 and 6; "W. H. Henson owns the west fifty feet of lots 7, 8 and 9; and the appellant, Boullioun, is the owner of the northeast quarter of said block, the same being lots 10,11 and 12.
Many years ago Constantine, Crawford and Henson established their respective residences on the property owned by them, Constantine’s residence facing on Sixth Street and Crawford’s and Henson’s facing on Seventh Street. The lots on which these houses were erected were practically on a level with the streets upon which they faced, but afterwards the grade of the streets was changed, and they were cut much lower than the lots, so that now, in order to reach the properties from Sixth or Seventh streets, a steep embankment must be ascended, making access by any vehicle quite difficult. Lots 10,11 and 12 have had no structure erected thereon, and for all time have remained, and are now, vacant and uninelosed. "When the grade of the streets was changed, the owners of the several residences mentioned began to enter their prop erties with, their vehicles to the rear from Summit Street on the east and across a part of the uninclosed northeast quarter of the said block.
At that time Mrs. W. S. Mitchell was the owner of the uninclosed portion of the block, and remained such until a short time ago, when the property was sold under the description of lots 10, 11 and 12, block 17, to George H. Boullioun. Shortly after this purchase he began to take steps to close the passageways across his property, which resulted in the bringing of this action by the adjoining owners, who had been using the same, seeking to restrain Boullioun from interfering with their use of the right-of-way across his property. There was a decree adjudging to the appellees a right-of-way ten feet wide across the property, providing that it should be the south ten feet of lots 10, 11 and 12, but, as suggested by the appellees, it was evidently intended that the right-of-way should be the strip of land ten feet wide along the southern boundary of appellant’s property from Summit Street to the center of block 17.
The question as stated by the appellees is as follows: “Did the appellees have a right to appropriate for their own use the property of the appellant, and use the same for their convenience in going to their garages?” Ap-pellees contend that the use of the property for passage across it was justified as a way of necessity, and that right has become vested in them under the general rule that, where the public, with the knowledge of the owner of the soil, has claimed and continuously exercised the right of using it for the full period of seven years, a right to the continued user thereof is acquired by prescription, even though the public travel may have somewhere slightly deviated from the original track by reason of any obstacle that may have been placed in it. In support of this proposition, they rely upon the cases of Balmat v. Argenta, 123 Ark. 175, 184 S. W. 445, and McCracken v. State, 146 Ark. 300, 227 S. W. 8, 228 S. W. 739. It nowhere appears in the evidence that Boullioun or his grantor was also the grantor under whom the appellees hold title, and therefore, so far as they are concerned, appellant is a stranger to their title and a private way of necessity cannot be claimed by them, as there can he no private way of necessity over the lands of a stranger. The rule is laid down by Chancellor Kent in his Commentaries in speaking of a way of necessity that “it is either created by express words or it is created by operation of law as incident to the grant, so that in both cases the grant is the foundation of the title”; and Washburn, in his Treatise on Real Property, says: “A way of necessity can only be raised out of land granted or reserved by the grantor, but not out of land of a stranger, for, if one owns land to which he has no access except over the lands of a stranger, he has not thereby any right to go across these for the purpose of reaching his own.” See also Vassar v. Mitchell, 169 Ark. 792, 276 S. W. 605.
It remains to be seen whether or not the facts bring this case within the doctrine that a private way may be acquired by prescription. That such an easement may be established is well settled (Clay v. Penzel, 79 Ark. 5, 94 S. W. 705; Medlock v. Owen, 105 Ark. 460, 151 S. W. 995), but it must appear that a definite way was continuously used without interruption for a time which would presuppose an original grant, which in this State is held to be seven years; and also that, the way used was under a claim of right which was known to the owner of the soil and assented to by him. Johnson v. Lewis, 47 Ark. 66, 2 S. W. 329; Kell v. Butler, 147 Ark. 521, 227 S. W. 774.
While not universally recognized, the prevailing rule seems to be that, where the claimant has openly made continuous use of the way over occupied lands unmolested by the owner for a time sufficient to acquire title by ¿dverse possession, the use will be presumed to be under a claim of right; but where the easement enjoyed is across property that is uninclosed, it will be deemed to be by permission of the owner, and not to be adverse to his title.
■ ■ •The evidence in this case fully establishes the fact that the appellees have continuously used a passageway across the lands of the appellant for a period of time well in excess of seven years with no protest or hindrance on the part of the owner of the soil and with his knowledge; and that the way nsed was fairly definite, although varying slightly because of natural obstacles, but that at no time was the particular way which was decreed to appel-lees used, for it was obstructed so as to make its use inconvenient. We are inclined to the opinion that these facts are not sufficient to create such an easement by prescription as can now be asserted against the wishes of the owner of the soil. There is no evidence that any of the persons using the land were claiming to do so as of right and adverse to the title of the owner, nor any circumstance proved which would put the owner upon notice that the use of the way was under such claim and hostile to his ownership. During all this time, as well as now, the lands were uninclosed, and we do not think it was the duty of the owner, in order to preserve his title intact, to be continuously on his guard or to forbid his neighbors from using the property for their convenience. A number of cases are cited in the 5th note to § 39, 9 R. C. L., chapter on Easements, which support this view, and the rule that the use of uninclosed lands for passage is to be presumed permissive and not adverse is stated to be that supported by the weight of authority and based on the fact that it is not the custom in this country, or the habit of the people, to object to persons enjoying such privilege until there is a desire to inclose. Were the rule otherwise, there would be but few vacant lots in our cities and towns and uninclosed property in the country which might not be burdened by easements of passageways, as fit is a matter of common knowledge that by the indulgence and good nature of the owners people are allowed to go across these uninclosed properties at will and until such time as the owners may desire to inclose them.
Cases might, and do, arise where those using a private way over uninclosed lands may, by their conduct, openly and notoriously pursued, apprise the owner that they are claiming the way as of right and thus make their possession adverse, but there were no such circumstances in this case, and therefore the nser must be deemed to have been by consent of the owner, and, 'being permissive, conld not ripen into a legal right.
In no case to which onr attention has been called, or which we have been able to discover, in the decisions of onr own conrt, is there any real diversity of opinion, bnt, as we interpret them, all sustain the rules we have heretofore announced. There is nothing to the contrary in the cases cited by appellee. McCracken v. State, supra, merely held that the proved facts justified the conclusion that a public road had been used under circumstances manifesting a claim to the use adverse to the owner and for a sufficient time to ripen into a legal right. The case of Balmat v. Argenta, we think, is not in point, for the testimony relative to the right of the property owners to open an alley through the center of the block from north to south is unimportant as beside the real point in issue.
On the question of the presumption arising from the use for a way over unoccupied lands, the only case we have discovered which might be construed to be contrary to the doctrine we have announced is the case of McGill v. Miller, 172 Ark. 390, 288 S. W. 932. In the first para-, graph of the opinion, on page 394, this language is used: “It is true that the use originated as a permissive right and not upon any consideration, but the leng-th of time it was used without objection is sufficient to show that the use was made of the alley by the owners of the adjoining property as a matter of right and not as a matter of permission.” But this statement is qualified by the sen-, fence immediately following, and when all the language of the opinion, the nature of the property on which the easement was located, and the point decided, is considered, it is clear the writer merely intended to say that the length of time the way was used was a circumstance in connection with other circumstances in proof, sufficient to support the trial court’s finding that the way was used as of right and in hostility to the landowner’s title.
As we have seen, the claim is made by the appellee that the right to the way is not based “upon a mere accommodation, but is based upon a necessity.” We have given a reason why that claim is not tenable: i. e., that there is no testimony that appellant or his predecessors in title were appellees’ grantors, but, if that was not a fact, the claim as a way of necessity must fail, because there existed no necessity for a way over appellant’s land when appellees first purchased and built residences on their respective properties. Whatever necessity may now exist arose subsequently and was created by an agency independent of appellant or of those under whom he claims.
If there be in fact a controlling necessity for an easement on and over appellant’s land, appellees are not without a remedy; ample provision is made in our statutes (§ 5250 et seq., Crawford & Moses’ Digest) for securing the way and for compensation to the owner.
For the reasons assigned, the case is remanded with directions to set aside the decree and dismiss the complaint for want of equity. | [
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