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McCulloch, C. J.
This was an action in the chancery court of White County to quiet title to a small tract of land thirty-five yards wide and 150 yards deep, situated at a village or country store and postoffice in White County, known as “Walker’s Store.”
The tract of land was originally owned by P. G. Williams, who had the record title and who on February 20, 1908, mortgaged it to appellant, J. M. Walden, to secure a debt in the sum of $550 for borrowed money, evidenced by promissory note. The debt was not paid and appellant foreclosed the mortgage under the power therein com tained, and purchased the land at the mortgage sale, which was made on May 8, 1915. On February 25,1915, P. G-. Williams executed to appellee, John T. Walker, a warranty deed purporting to convey an undivided one-half interest in a portion of said tract, being 100 feet square, beginning at the southeast corner, and the present controversy is between appellant and appellee Walker, concerning the priority of their respective titles acquired under said conveyances from Williams. The deed from Williams to Walker recites a consideration of the payment of the sum of $12.50 on April 1, 1901, and also the construction of a storehouse on the lot in question. Walker claims to have purchased an undivided one-half interest in the land from Williams in April, 1901, and paid in consideration the sum of $12.50 and built a storehouse which cost from $250 to $300, and that the deed was not executed until February 25, 1915, but he claims that he was in possession of the lot in the meantime, and that appellant had actual as well as constructive notice of the conveyance at the time Williams executed the mortgage. The case was heard by the chancellor on the evidence adduced and the court found in favor of appellee Walker, sustaining the priority of his title to the undivided one-half interest conveyed to him by Wiliiams, and an appeal is prosecuted in this court by appellant Walden.
It appears from the testimony that Williams and Walker formed a partnership to conduct a mercantile business at the place in question in the year 1901, and built a small frame storehouse in which they did business for several years. They both testified that an agreement was entered into whereby Williams sold to Walker an undivided one-half interest in the portion of land herein-before described and the consideration of $12.50 was paid, and Walker built the storehouse, which probably cost $250. Another small building already on the lot was moved up to the new house and joined to it. Those parties conducted the mercantile business in the store for several years, and thereafter rented out the property to tenants from time to time and collected the rent.
The evidence is sufficient to warrant the finding of the chancellor that there was in fact a sale of said interest made by Williams to Walker upon the terms stated; above, and that said parties jointly occupied the premises thereafter. There was no deed executed, however, and at the time that Williams mortgaged the land to appellant he held the record title. Appellee attempted to prove that appellant had actual notice of Walker’s interest in the lot at the time the mortgage was executed, but, this was disputed by appellant, and there is a sharp conflict in the testimony on that issue. Williams testified that at the time he mortgaged the property to appellant he told the latter that Walker had an interest in the property, but that he (Williams) had never executed a deed to Walker. Appellant testified in the case and denied that Williams gave him any information concerning the alleged interest of Walker, or that he had received any information on the subject from any other source, and he testified positively that he had heard nothing of Walker having any interest in the property until after his foreclosure sale. Williams was contradicted by two witnesses, relatives of appellant, who both testified that they approached Williams on the subject of a sale of the property and asked him to sell it to them, but he declined to do so, and stated that Walker had tried to buy the property and he refused to sell it. The testimony of Williams to the effect that he gave appellant notice of Walker’s interest in the property is entirely uncorroborated, and after carefully considering it as it appears in the record, it does not appear to us as being at all convincing. In fact, his own statement is wholly at variance with his conduct in executing to appellant a mortgage conveying the entire tract. Appellant was a farmer, living several miles away, and he testified that he had no reason to believe that Walker had any interest in the property and he was not so informed at the time he accepted the mortgage.
Upon consideration of the inherent weakness of the testimony of Williams and its contradiction by the testi mony of other witnesses, we are of the opinion that the testimony produced on this point by appellant clearly preponderates over the testimony of Williams himself, and that it was not sufficient to sustain a finding in favor of Walker upon the question of actual notice to appellant of Walker’s interest in the property. Nor do we think that under the facts in the case appellant is chargeable with constructive notice of Walker’s adverse interest, for Walker’s occupancy was a joint one with Williams and is referable to the latter’s record title. In order that actual occupancy be constructive notice of ownership it must be apparently exclusive. Otherwise, the possession is presumed to follow the true title and those who deal with the owner of the record title are warranted in treating him as being the exclusive owner. Haines v. McGlone, 44 Ark. 83; 27 Cyc. 1187-8; Elliott v. Lane, 82 Iowa, 484; Hammond v. Paxton, 58 Mich. 393; and Roderick v. McMeekin, 204 Ill. 625. “Possession to be notice,” said the Illinois court in the case quoted above, “must be not only open and visible, but exclusive. A possession which he held jointly with another person is not such a possession as is exclusive, or operates as notice, or to excite inquiry.”
Appellant having had no notice, either actual or constructive, of the alleged interest of Walker in the propj erty, his title under the mortgage executed by Williams is superior to the interest of Walker and the chancery court erred in declaring Walker’s title to be superior to that of appellant. The decree is, therefore, reversed and the cause remanded with directions to quiet the title to the.whole of the tract of land described in the mortgage executed by Williams. | [
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Wood, J.,
(after stating the facts). (1) This court in Barringer v. St. Louis, Iron Mountain & S. Ry. Co., 73 Ark. 548, 551, announces the law as to the duty of carriers to passengers while getting on and off trains as follows: “It is the duty of carriers to allow their passengers a reasonable opportunity of getting on and off their trains, and they must stop at stations long enough for that purpose. A reasonable time is such time as a person of ordinary care and prudence should be allowed to take. It is the duty of the carrier, in determining what is a reasonable time, to take into consideration any special condition peculiar to any passenger and to the surroundings at the station, and to give a reasonable time under the existing circumstances, as they are known, or should be known by its servants, for a passenger to get on or off its trains.” See, also, Hill v. St. Louis, I. M. & S. Ry. Co., 85 Ark. 529; K. C. So. Ry. Co. v. Worthington, 101 Ark. 128; St. Louis, I. M. & S. Ry. Co. v. Trotter, 101 Ark. 183, 190; St. Louis, I. M. & S. Ry. Co. v. Wright, 105 Ark 269.
(2) These are the principles which should have guided the court in its instructions in the instant case. Under the evidence the only question for the jury to determine on the issues of negligence and contributory negligence was whether or not the appellant had exercised ordinary care (that is, the highest degree of care which one of ordinary prudence would exercise for the security of passengers reasonably consistent with the business of a common carrier by rail and appropriate to the means of conveyance and the practical operation of the road), to stop the train long enough to enable passengers, while exercising ordinary care on their part, to debark therefrom in safety.
(3) Where the testimony tends to show that the negligence consists only_in a failure to exercise ordinary care to stop the train a sufficient length of time to allow passengers to get off in safety, the charge should relate only to that issue, and not undertake to define the duty of railway companies to their passengers under other circumstances and conditions.
(4:) Instruction No. 1, given at the instance of the appellee, of which appellant complains, is open to the above objection. True, it is in the precise language which this court declared, in St. Louis, Iron Mountain & Southern Ry. Co. v. Wright, supra, to be “the correct rule applicable to such cases.” There, however, and in the cases of St. Louis, Iron Mountain & S. Ry. Co. v. Purifoy, 99 Ark. 366, and Ark. Midland Ry. Co. v. Canman, 52 Ark. 517, where the court announced the law generally as to the duty of railway companies to their passengers, the court did not approve this language as a correct instruction for a precedent to be given in all cases where there was an injury to a passenger regardless of the facts upon which the cause of action might be grounded. The law as announced is a correct principle defining generally the degree of care which railway companies must exercise toward their passengers. Trial courts should be governed by the principles of law announced by this court and frame their instructions in accordance with these principles, but make them applicable to the facts of each particular case as they may be developed.
Here there was no testimony tending to show that the roadbed, track, cars or any other subsidiary arrangement connected with the structure of the road and necessary to the safety of passengers were not provided. If appellant was negligent at all, its negligence consisted, as above stated, simply in a failure to stop the train a sufficient length of time to allow the appellee to debark in safety. The instruction, therefore, covering these elements, was abstract in this case and calculated to lead the jury into the realm of speculation and to the consideration of issues not before them to the prejudice of the appellant.
(5-6) Instruction No. 3, given at the instance of the appellee, told the jury that if they found for the appellee, they should assess her damages at such sum, not exceeding the amount sued for, “as will, in your judgment, be a fair and just compensation for her alleged injuries to her back, kidneys,” etc.
This court, in Fordyce v. Nix, 58 Ark. 136, 141, condemned an instruction in this form, saying: “Verdicts of juries in actions sounding in exemplary damages, while they can not exceed the amount claimed in the complaint, should, nevertheless, in each case be reasonable and commensurate with the wrong done, as shown by the evidence adduced. The amount claimed in the complaint is frequently so exorbitant and disproportionate to the facts proved as, of itself, to suggest prejudice, and to tell the jury in such cases that they might find in any amount, not exceeding amount claimed, would be tantamount to saying that they would be justified in finding an excessive verdict.” The court, however, did not reverse the judgment in that case on account of the erroneous instruction because the verdict was less by $1,500 than the amount claimed in the complaint, and there was nothing to indicate that the jury could have been misled and the rights of the appellant prejudiced by the instruction.
Likewise, in St. Louis, Iron Mountain & Southern Ry. Co. v. Holmes, 96 Ark. 339, 343, we did not reverse the judgment for the error in giving an instruction in this objectionable form, because the verdict was less than one-half the amount asked in the complaint, “and was certainly not exorbitant.”
In St. Louis Southwestern Railway Co. v. Myzell, 87 Ark. 123, 127, we again condemned an instruction in this form, saying: “It tells the jury that they have the right to give the plaintiff exemplary damages, in addition to compensatory damages, in any snm which they believe proper, not exceeding $1,400. This is putting the assessment of exemplary damages at large, restrained only by what the jury may believe proper, when their assessment ‘must be commensurate with the wrong done as shown by the evidence adduced.’ ” See, also, St. Louis, Iron Mountain & S. Ry. Co. v. Boyles, 78 Ark. 374, 380.
In St. Louis, I. M. & S. Ry. Co. v. Snell, 82 Ark. 61, 63, we said: “It is unnecessary and improper for the trial court to make reference in an instruction to the amount sued for in the complaint. The jury, having heard the complaint read, are presumed to know that their verdict should not exceed the amount asked for in the complaint; and if the verdict is in excess of that amount, the court should strike out the excess. But where an instruction containing .such reference is properly limited by a direction to find only such amount as the evidence warrants, we do not, hold it to be prejudicial error.”
The instruction in the case at bar did not restrict the jury to a consideration of the amount of damages as shown by the evidence. The jury were at liberty, under the instruction, to return any amount their judgment might approve, only limited by the amount named in the complaint. The instruction, therefore, standing alone, and without reference to the other instructions, would be erroneous.
But, in another instruction, the court told the jury as follows: “If you find for the plaintiff, your verdict will be, ‘We, the jury, find for the plaintiff, Mrs. Aydelott, and assess the damages at’ so much, whatever you think the proof has shown: Instructions áre to be considered ás a whole, and when these instructions are considered together, the effect was to tell the jury that if they should find for the appellee, Mrs. Aydelott, they could find for her in any sum not exceeding the amount named in tlie complaint, as they might think the proof had shown. There was no prejudicial error, therefore, in the ruling of the court in granting the prayer for instruction on the measure of damages, in the particulars above discussed.
The instruction was furthermore objectionable in singling out the particular injuries alleged in the complaint, and telling the jury that they could find a fair and just compensation for these alleged injuries, specifying the particular parts of the body that she alleged were affected by the injury. The instruction, in this particular, should have been couched in general terms, allowing the jury to consider such injuries as appellee had sustained under the evidence, and to allow compensation therefor, but without specifying the particular part of the body alleged to have been injured. The instruction, in this form, was argumentative, but we are not convinced that it had the effect to magnify the verdict. We have called attention to this instruction in order that on a rehearing the trial court may give an instruction on the measure of damages in correct form.
(7) The court erred in its remarks to the jury during the argument of counsel for appellant. Counsel for appellant had the right, under the evidence and the instructions of the court on the issue of negligence, to say to the jury that “the railway company was not guilty of negligence. ’ ’ That was an opinion which it was the privilege of counsel to express by way of argument, and the court erred in saying to the jury at this juncture, “I will instruct the jury that the railroad company was guilty of negligence. The conductor himself says tha,t he forgot that a passenger was on there, and that he never saw the passenger at all.” The remarks of the court were tantamount to an instruction that the railroad company was guilty of negligence. This was a question, under the evidence, for the jury to determine, and the instruction thus given at this time was in direct conflict with other instructions which correctly submitted the issue of negligence for the jury’s, determination. These and the further remarks of the court in this connection, as shown in the record, constituted an improper interruption of the argument of counsel, and was a manifest encroachment upon his right and privilege to present his client’s cause to the jury. It was also an invasion upon the province of the jury, whose duty it was to consider and determine the disputed issues of fact.
The judgment, therefore, in favor of the appellee Mrs. Aydelott is reversed for this error, and the cause will be remanded for a new trial.
Appellant, E. A. Aydelott, testified that since the 11th day of last April, the day on which the injury to his wife occurred, his wife had not been physically able to assist him in any way, and her companionship had not been what it should be. Before that time she had assisted him. Since her injury, there had been a disturbance of the companionship and society between himself and wife, including all of the private and delicate relations. Appellant testified that the disturbance by the injury was one “involving the sexual relations,” “all assistance, and you might say, all pleasure was gone the way things existed.”
(8) ' The record shows that the .appellant presented the following prayer for instruction: “If you shall have found for Mrs. Aydelott, then you will consider whether her husband has, by reasgn of her injury, himself suffered injury by being deprived of her assistance, companionship and society as his wife, and for medicines and doctors for her, and, if so, you will find for E. A. Aydelott such damages as you may find he has sustained on either or all of said items, if any.” The court modified the instruction by striking therefrom the word “assistance,” and also the words ‘and for medicines and doctors for her.” And as thus modified, the court gave the instruction. The appellant excepted to the ruling of the court in refusing his prayer for instruction as offered, and in the ruling of the court in modifying and giving the same as modified. But lie did not bring bis exceptions to tbe ruling of tbe court into Ms motion for a new trial, and therefore we can not consider this alleged error in the ruling of the court.
The appellant contends that the court erred in refusing to allow him to testify to his wife’s injuries. The appellant, in the first six grounds of his motion for a new trial, assigns as error the rulings of the court in refusing to allow plaintiff to testify in regard to his wife’s injuries, the nature, extent and cause thereof. But the record does not show that appellant reserved any exceptions to the ruling of the court in refusing to allow this testimony. Therefore,, he can not complain here that the court erred in its ruling.
Appellant insists that the verdict was contrary to the evidence, contending that the jury should have found in Ms favor for doctor’s bill for more than $75, and medicines more than $25.
It is alleged in the complaint that he incurred expenses in the above sums for doctor’s bill and medicines. The answer denies these allegations, and there is no proof in the record to sustain them.
(9) Again, counsel for appellant urges that the verdict was contrary to the evidence in his favor, because the jury found that his wife was injured and returned a verdict in her favor on account of such injuries in the sum of $3,000, and from this he insists that it necessarily follows that he was injured by the loss of the society and companionship of his wife in some amount, and that the jury should have so found, and in not so finding their verdict is inconsistent.
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Kirby, J.
It will suffice to say that this case is ruled by the decision in Yates v. State use of Miller County, (ante p. 749) and it must be held that the court erred in not surcharging the sheriff’s account with the fees retained for the automobile licenses collected, which should have been charged, of course, in his report to the circuit judge for the first year, and also his report to the -circuit judge for both years, and the approval of such accounts without any disclosure made would not prevent surcharging the account as could be done in this proceeding.
It appears, however, that the officer collected these fees, including an amount beyond the salary which he was entitled to retain the first year, but that the fees from which his salary was to be collected in the second year were not sufficient to pay it after the necessary expenses allowed by law were credited to him without the amount of the fees for automobile licenses retained by him on the first year’s settlement. The court allowed the account accordingly with this credit claimed on the second year’s salary and committed error in doing so. He could, of course, have been charged interest on the amount wrongfully retained on the first year’s salary, which should have been paid into the county treasury by the sheriff, up to the time of its credit on the second year’s salary.
The allowance for the purchase of the automobile was not a proper one, as said in the other case, and no error was committed in refusing or rejecting it.
The purchase of the disinfectant for the jail would appear to be a proper expenditure for the jail, but it should have been authorized by the county court before said purchase was made and certainly approved by such court before the allowance thereof as a claim against the county. ■, \} !
The decree is accordingly affirmed on the appeal, and reversed on the cross-appeal with directions to enter a decree in accordance herewith. It is so ordered.
Butler, J., dissents on cross-appeal. | [
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Smith, J.
Appellant and appellee were the opposing and only candidates for the Democratic nomination for State Senator from the Fifth Senatorial District, composed of Washington County, in the State-wide primary election held August ‘9, 1932. The returns, as certified by the county democratic central committee, showed that appellant was defeated by a majority of 249 votes, and within ten days thereafter a complaint was filed by appellant contesting this certification.
A demurrer was interposed to numerous paragraphs of the complaint, which was sustained, and these paragraphs were dismissed, but permission ivas given to amend. Later, and more than ten' days after appellee had been certified as the nominee, an amendment was filed to the complaint. A motion was filed and sustained to strike the amended complaint from the record for the following reasons: (1) That the amended complaint alleged new and different grounds for contest, and was not filed within ten days of the date of the certification of the nomination; (2) that the amendment was not supported by the affidavit of ten reputable citizens of Washington County; and (3) that the amendment seeks to change and enlarge the grounds of contest set forth in the original complaint.
When the motion to strike the amended complaint was sustained, the court offered to permit the plaintiff to further amend his complaint, but he declined the offer, and has appealed from the action of the court in sustaining the demurrer to portions of his complaint and in striking his amendment to the paragraphs of the com plaint which had been dismissed when the demurrer thereto was sustained.
A motion has been filed here to dismiss the appeal upon the grounds that no final judgment has been rendered, and that the appeal is premature.
A headnote in the case of Security Mortgage Co. v. Bell, 175 Ark. 128, 298 S. W. 865, reads as follows: “An appeal from an order dismissing a complaint as to certain paragraphs, but leaving the paragraph which presented a triable issue, held prematurely taken, since the issue should have been tried and objection to the demurrer urged on final appeal from the whole action.”
It is insisted, upon the authority of the case from which we have just quoted, that the motion to dismiss the appeal should be sustained. We do not, however, concur in this view, for the reason that, in our opinion, no triable issue was left after the demurrer had been sustained to certain of its paragraphs. The portion of the complaint, left after the demurrer to certain of its paragraphs had been sustained, was itself demurrable, as failing to sufficiently state a cause of contest. The vital parts of the complaint were deleted when the demurrer was sustained, and, in our opinion, the demurrer, if sustained at all, should have been sustained to the complaint in its entirety, and that there was not left thereafter a triable cause of action. Hill v. Williams, 165 Ark. 421, 264 S. W. 964.
The allegations of the original complaint are somewhat general in their nature, and, if the demurrer had been treated as a motion to make more specific, it should have been sustained on that ground.
We think, however, that the original complaint stated a cause of action, as its allegations, if supported by the testimony, show that appellant received a majority of the votes of the qualified electors of Washington County, which county composed the Fifth Senatorial District.
These allegations are lengthy, and will not be set out in extenso, but they are to the effect that appellee and certain of his political supporters conspired with a candidate for tlie nomination for sheriff and certain of his adherents to illegally assess two thousand poll-tax payers, and to provide poll-tax receipts for them for the purpose and in consideration of having the persons to whom the poll-tax receipts were issued support appellee and the candidate for sheriff aforesaid. And, further, that persons had voted in the election who had no poll-tax receipts, as had others who were not otherwise qualified, although they held poll-tax receipts, among the latter class being many Republicans. That illegal absentee ballots had been received and counted for appellee, as had also the ballots of certain other persons who had not voted at all, and that certain ballots had been changed from appellant to appellee, and “that, by reason of the illegal and unlawful acts claimed, as aforesaid, the plaintiff had been cheated out of more than fifteen hundred votes in said county, and if the legal votes cast for him had been counted and the illegal votes that had been cast for the defendant were thrown out, this plaintiff would have received the nomination for the office of State Senator by a large majority.”
These allegations were made more definite and certain by the amendment to the complaint.
It was held in the case of Logan v. Russell, 136 Ark. 217, 206 S. W. 131, which was the first case construing the primary election law, appearing as §§ 3757 et seq., Crawford & Moses’ Digest, that the complaint in a proceeding to contest the certification of a primary nomination shall be supported by the affidavits of at least ten reputable citizens, and shall be filed within ten days of the certification complained of, and that the complaint and the affidavits are jurisdictional, and must be filed within the time specified. It has, however, been also, held that, where a contest has been instituted within the time and in the manner required by law, the complaint may be amended to make the allegations thereof more definite and certain and more specific; but the complaint may not be amended to allege new and additional grounds of contest. The statute does not require supporting affidavits of the citizens to these permissible amendments. These amendments may be made without the supporting affidavits, and after the expiration of the original ten days, when unreasonable delay in the trial of the cause will not result therefrom. Robinson v. Knowlton, 183 Ark. 1127, 40 S. W. (2d) 450; Cain v. McGregor, 182 Ark. 633, 32 S. W. (2d) 319; Gower v. Johnson, 173 Ark. 120, 292 S. W. 382; Bland v. Benton, 171 Ark. 805, 286 S. W. 976.
It was not ground therefore to strike the amended complaint from the record because it was not verified by the affidavit of ten reputable citizens, and was not filed within ten days after the certification of appellee as the nominee. Nor was it ground to strike the entire amended complaint making more definite the allegations of the original complaint because a ground of contest was alleged which the original complaint did not contain. Only that additional ground of contest, if such there was,' should have been stricken out.
As we interpret the pleadings, a cause of action to contest appellee’s nomination was stated in the original complaint, and the court erred in striking out certain paragraphs thereof upon sustaining the demurrer thereto; but, with these paragraphs deleted, a triable cause of action did not remain, and an appeal was proper from that order.
We are also of the opinion that the court was in error in striking out the amendment to the complaint, and, upon the remand of the cause, this motion will be sustained only as to such grounds of contest as were not alleged in the original complaint.
The judgment of the court below is therefore reversed, and the cause will be remanded for further proceedings in accordance with the directions as above contained, | [
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Smith, J.
Appellant brought this suit by filing a claim in the county court of Prairie County against that county for the value of .certain land which the county had condemned for the construction of a part of State highway No. 70 along a changed route. The county court disallowed the claim, and there was a verdict adverse to the claimant upon an appeal to the circuit court, and a trial there before a jury.
The taking of the land is admitted, and it was established by undisputed evidence that the land taken had a market value. It is therefore insisted that the judgment from which this appeal comes must be reversed, inasmuch as the jury allowed the claimant no damages for his land.
It is true, of course, as appellant insists, that private property cannot be taken, appropriated or damaged for public use without just compensation therefor. Section 22 of article 2 of the Constitution so provides. It is true also that, before the owner can be said to have been compensated by benefits derived from the appropriation of his property, such benefits must be, not those enjoyed by the public generally, but must be special benefits accruing to the particular owner of the land from which a part had been taken. Ross v. State Highway Commission, 184 Ark. 610, 43 S. W. (2d) 75; Ross v. Clark County, 185 Ark. 1, 45 S. W. (2d) 31.
But it is also the law that, “where the public use for which a portion of a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole before the taking, the owner in such case has received just compensation in benefits.” Cate v. Crawford County, 176 Ark. 873, 4 S. W. (2d) 516. See also Paragould v. Milner, 114 Ark. 334, 170 S. W. 78; Weidemeyer v. Little Rock, 157 Ark. 5, 247 S. W. 62.
The testimony on the part of the county was to the effect that highway No. 70 was one of the principal roads in the State, and was a part of the interstate highway known as the “Broadway of America,” and that the route of this highway had been changed to run through the town of Hazen and the land of appellant adjacent thereto, thus giving appellant a frontage along this highway, and that the result of this relocation of the highway was to make the portion of appellant’s land which remained of greater value than the whole thereof would be without the road.
The case was submitted under correct instructions. defining the elements of damage which the landowner had the right to have the jury consider, but an instruction given at the instance of the county told the jury that these damages might be compensated by the enhancement of the value of the portion of the land not taken, and that, if this enhancement was equal to or greater than the damages sustained, the claimant had received compensation and could recover nothing in addition.
The testimony warranted the submission of this issue, and sustains the verdict of the jury. The judgment must therefore be affirmed, and it is so ordered. | [
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HumphRbys, J.
On October 27, 1931, the City National Bank of Ft. Smith, one of the appellants herein, brought suit against the Smith Trading Company of Paris in the chancery court of Logan County, Northern District, to foreclose its pledges and mortgages in the sum of $25,000, deposited with it as collateral by said Smith Trading Company, and to obtain the appointment of a receiver to take charge of the property described in said pledges and mortgages which was not already in the possession of appellant. A part of the property consisted of 105 bales of cotton raised in 1931 on a farm of 320 acres, owned by the estate of Mrs. Ella Stroupe, deceased, wife of Henry Stroupe.
Her administrator, H. T. Fite, intervened in said suit, claiming a landlord’s lien for rent in the amount of $2,000 on said cotton. Issue was joined in this suit as to the amount of rent due the administrator for the year 1931.
On October 14, 1931, the Smith Trading Company brought suit against Henry Stroupe in the circuit court of Logan County, Northern District, on a promissory note for $574, including interest, which was executed to it for supplies on March 9, 1926, by Stroupe. The defense of payment was interposed to this suit, and, by agreement, it was transferred to the chancery court and consolidated with the foreclosure suit.
The cause was submitted upon the issues joined and the testimony adduced by the parties responsive thereto, which resulted in a finding that the amount of rent due was $'2,000, and that the Stroupe note had been paid, and a decree in accordance therewith, from which is this appeal.
Four witnesses were introduced who testified as to the amount of rent due for the year 1931.
Rufus Smith, who was a stockholder in the Smith Trading Company, testified, in substance, that the trading company leased the 320-acre tract from the Stroup es in September or October, 1928, for five years, at a rental of $1,500 for 1929, $1,750 for 1930, and $1,800 a year for the next three years, and that it entered into possession thereof and made extensive and valuable improvements thereon with the understanding that a written contract would be drawn up and executed in keeping with the oral agreement; that, in the spring of 1929, he drafted a contract providing for the payment of $1,800 per- year for the rents’ of the last three years and handed it to Stroupe; that this agreement was not signed by either party; that later Stroupe handed him a written lease and copy signed by himself and wife, which he retained, but never signed, which provided for a rental of $2,000 per year for the last three years; that he gave the original to his attorney when this suit was instituted, and prior to that time had given the copy to the manager of the farm; that it paid $1,500 for 1929 and $1,750 for 1930, and owed only $1,800 for 1931. He also denied that he admitted to Tom Fite and Almond Stroupe that it owed $2,000 rent for the year 1931.
Henry Stroupe testified, in substance, that, when Rufus Smith handed him a written contract which he had prepared, he told him it was not in accordance with their oral contract; that thereafter he had Mr. John Arbuclde draw up a contract and copy providing for the payment of $1,500 for 1929, $1,750 for 1930, and $2,000 per year for the next three years, which he and his wife executed; that he delivered same to Rufus Smith, who accepted it and complied with its terms until its refusal to pay the 1931 rent. When interrogated concerning the whereabouts of the contract prepared and delivered to him by Rufus Smith, he said it was somewhere in his papers.
H. T. Fite testified that he demanded $2,000 for the rent of 1931 from Smith, who did not deny or dispute the amount due, hut who stated that, on account of conditions prevailing, he should not he required to pay that much.
Almond Stroupe testified that he assisted the administrator in collecting the rents and the management of his mother’s estate, and that in conversation with Rufus Smith he admitted that it owed $2,000 for the rent of the 320-acre tract for the year 1931, hut stated that, on account of the price of cotton, they ought to reduce it to $1,500.
Three witnesses testified relative to the payment of the Stroupe note.
Henry Stroupe testified, in substance, that Rufus Smith owed him rent on his upper place, amounting’ to some more than the note he owed Rufus Smith, and that in the month of February, 1930, they had an agreement in the store of the Smith Trading Company that they would offset one against the other, and that Rufus Smith told him he would hand him the note later as he was in a hurry to go to the bottom farm; that nothing more was said about it until some three years later, when this suit was brought; that no request or demand was ever made upon him for the payment of the note after the settlement.
Tom Fite testified, in substance, that he was doing some collecting for Henry Stroupe in 1930, and that he attempted to ¡collect the rents Rufus Smith owed Stroupe oil the upper place; that Smith said to him he would like to talk the matter over with Stroupe, and that they subsequently met at the store, and that, after conversing about the matter, it was agreed between them that they would offset the note against the rent; that the proposal to do so was made by Stroupe and accepted by Smith, and that Smith said he would look up the note and hand it to him later, as he was then in a hurry to go to the bottom farm.
Rufus Smith testified, in substance, that no such settlement was made as detailed by Stroupe and Fite; that he owed Stroupe nothing in 1930 for rents on his upper place; that he never asked Stroupe to pay the note because Austin Smith had charge of the store and notes; that it was his business to look after the farms, and Austin’s business to look after the store and notes.
(1) Upon the rent issue, there is no dispute as to the term of the lease nor the amount of rents to be paid the first and second years, nor that Rufus Smith entered into the possession of the land and made improvements thereon contemplated by the parties, nor that the oral contract of lease should be reduced to writing and executed at a later date, nor that Rufus Smith paid the rent for the first two years and continued to operate and cultivate the farm, nor that during the third year he planted, cultivated and picked 105 bales of cotton, part of which was in the possession of appellant bank and part in the possession of Smith Trading Company. The only dispute in the testimony is as to the amount of rent to be paid by the Smith Trading Company for the use of the farm for the year 1931.
Stroupe testified that the trading company was to pay $2,000, and Smith that it was to pay $1,800 rent for that year, and Stroupe is corroborated by his son and Fite. The finding of the chancellor that $2,000 was due for rent for the year 1931 is supported by the weight of the evidence.
The contention of appellant that the oral contract was void under the statute of frauds is not tenable, if for no other reason, because the lease contract was partially performed. The lessee entered into possession of the farm, made valuable improvements thereon, and had planted, cultivated and gathered the cotton crop the third year at the time this suit was instituted, and, under these circumstances, the lessee was hound to pay the amount of rent agreed upon. Having concluded that the oral contract is binding, it is unnecessary to determine whether the oral contract was supplanted by the written, lease executed by Stroupe and delivered to the lessee.
Relative to the issue of payment of the Stroupe note, we cannot say that the finding of the chancellor is contrary to the weight of the evidence. The settlement is supported by two witnesses as against one, and the fact that three years elapsed between the settlement and the institution of the suit without- any demand being made upon Stroupe for payment is a potent circumstance in corroboration of the evidence of the two.
No error appearing, the decree is affirmed. | [
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Hart, J.
Appellant as treasurer of Greene County filed his settlement with the county court, in which he claimed 2 per cent, commission on two sums of money belonging to Cache River Drainage District No. 1. The first item is the charge of 2 per cent, on $60,000, the proceeds of sale of the bonds of the district; the second is 2 per cent, on $6,149.24, being the annual assessments charged against the lands of the district to pay the annual interest on the bonds. The county court refused to allow appellant credit for commissions on either of said amounts; appellant appealed to the circuit court, and that court affirmed the judgment of the county court and rendered judgment in favor of the district.
The sole question for decision is whether a county treasurer is entitled to charge and retain commissions as against the funds belonging to a drainage district organized under the general laws of this State. To authorize a county court to allow a claim of fees for services rendered by an officer, there must be specific statutory authority to the officer to make a charge for the service. Logan County v. Trimm, 57 Ark. 487. In this case counsel for appellant claims that such authority is given by section 3508, Kirby’s Digest. It is as follows:
“The county treasurer shall be allowed fees as follows: In all cases where the amount received does not exceed one thousand dollars in any one year, four per centum; on all sums oyer one thousand dollars, not exceeding two per centum, to be paid out of the respective funds."
To support their contention, they cite the case of Hodges v. Prairie County, 80 Ark. 62, where the court allowed the treasurer commissions under section 3508 to be charged against the road tax levied and collected under authority of Constitutional Amendment No. 5. We do not think this case sustains the contention of appellant, because the court in the opinion expressly declares that the money collected under the road tax amendment is a county fund, and on that account the treasurer is entitled to commissions under section 3508. In that case the court said that the school fund is not a county fund, but belongs to each school district separately. The county treasurer is not entitled to commissions against the school fund under section 3508, but under section 3509 which is specially directed to the school fund. We think the fees allowed the treasurer under section 3508 are commissions on all the county revenue. The drainage district fund is not a county fund, but is a fund belonging to the drainage district. Each district levies and disburses its own funds.
The Legislature nas not provided any compensation for the county treasurer in regard to these funds, and the courts can provide none.
The judgment will be affirmed. | [
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Hart, J.
Joseph R. Foltz and others brought an action in ejectment in the circuit court against L. M. Alford to recover a tract of ground in the city of Fort Smith, lying immediately south of lot 12, block 21, in Foltz’s subdivision of Griffith & Nicks’ Addition to the city of Fort Smith and being 140 feet in length and 50 feet in width.
The defendant in his answer denied that the plaintiffs were the owners of the tract of ground, and set up title in himself. As a further defense, defendant alleges that, relying on his title to the property, he has in good faith made valuable improvements by erecting thereon a building worth $1,500.
On motion of the defendant the case was transferred to the chancery court, and without objection was tried there.
Foltz’s subdivision to Griffith & Nicks’ Addition to the city of Fort Smith was created by a plat filed April 29,1887, and consisted of blocks 21 and 22. The plat shows block 21 to be south of block 22, and the blocks are divided by Sykes Street 40 feet wide. No street is shown on the plat immediately south of block 21. Lot 12 of block 21 is in the southeast corner of, the block as platted into lots, and faces east. Immediately south of lot twelve, is the tract of ground in controversy. In 1900 L. M. Alford purchased said lot 12 in block 21 and received adeed therefor.
In 1906 a plat was filed of Foltz subdivision No. 1, extended to Griffith & Nicks’ Addition, showing blocks 8 to 19 and A to D. Blocks 21 and 22 did not appear on this plat.
In 1908 Alford, wishing to build a house on said lot 12, had it surveyed, and the surveyor by mistake located the lot fifty, feet south of its true location, and located it on plaintiff’s land. It does not certainly appear how the mistake was made, but it probably occurred in this way — the surveyor made the survey with reference to the plat filed in 1906, and did not look at the plat of blocks 21 and 22 filed in 1887. The property was all vacant, and the surveyors éxtended the streets as they appeared on the plat filed in 1906 and without any reference to the plat of .1887, and in this way the mistake was made. Be that as it may, the undisputed evidence shows the tract of ground in question was the property of the plaintiffs.
James A. Foltz testified: “I had charge of the property of the plaintiffs; and when I saw that the defendant was about to erect a house thereon, I suspected that it was on our land. After making some measurements, I concluded I was right. I then went to Mr. Alford, and told him that I did not know for sure, but that I thought he was about to erect his house or a part of it on our property. Mr. Alford said, “No,” that he had had the property surveyed by a civil engineer. I told him that I still thought that there was a mistake. I then had the property surveyed, and found that he was erecting his house on our land. I again went to Mr. Alford. I found him in his back yard making concrete blocks with which to build his house, and told him that he was about to erect a house on our ground. Foltz said: “I gave him good due warning long before the house was first started; he had no frame work nor roof on it.”
L. M. Alford testified: “I had a survey made by two civil engineers, and, relying on their survey as being correct, I built a house on the property in question. The house is worth $1,500. I had the survey made because I wanted to know exactly where the property was before building on it, and, as above stated, relying on the correctness of the survey, I built my house.”
We quote from his testimony as follows: “Q. Mr. Alford, while you were building your house, did you have any talk with Doctor Foltz or any of the Foltz heirs with regard to the title to lot 12?
“A. No. They never laid any claim to it then, but while I was building I met Dr. Foltz, and he stated that he owned a strip west of the bridge.”
The chancellor found that the plaintiffs were the owners of the property, but also found that the defendant, believing himself to be the owner under color of title, improved the property, and that the value of the improvements was $1,500. Accordingly, it was decreed that plaintiffs were the legal owners of the property, and that they should have a writ of possession therefor, upon paying the defendant $1,500 with interest at the rate of six per cent, from the date of the decree. Plaintiffs excepted to so much of the decree as held that the defendant was entitled to recover for improvements, and have duly prosecuted an appeal to this court to reverse the decree in this respect.
The sole purpose of the appeal by the plaintiffs is to question the correctness of the chancellor’s decree wherein the defendant was allowed thé value of his improvements. The undisputed evidence shows that the plaintiffs are the owners of the tract of ground in controversy, and that the defendant built his house thereon, because he made a mistake as to the location of his own lot. It follows that he did not have color of title so that he could claim improvements under the betterment act. Beard v. Dansby, 48 Ark. 183; Anderson v. Williams, 59 Ark. 144; White v. Stokes, 67 Ark. 184; Beasley v. Equitable Sec. Co., 72 Ark. 601.
Neither can .it be said that the defendant is entitled to his improvements, independently of the betterment act, under the doctrine that hé has made improvements in good faith, which increases the valúe of the property of the plaintiffs, because this rule is only invoked against a plaintiff when he seeks to enforce some equitable right. 3 Pomeroy, Eq. Jur., (3 ed.) § 1241.
It is true the case was heard in the chancery court, but it was transferred there on the motion of the defendant, and the plaintiffs are seeking no equitable relief whatever.
In 21 Cyc. pages 17-8, it is said: “One making improvements on another’s land through a bona fide mistake as to the boundary or location after due diligence to ascertain it is entitled to compensation for such improvements. ”
Assuming without deciding the question that this is a correct principle of law, wé do not think it has any application to the facts in this case. Doctor Foltz testifies positively that he notified the defendant before he commenced the construction of his house that he thought it was on plaintiffs’ land. The defendant claimed to have had it surveyed by competent engineers, and paid no attention to this notice. Doctor Foltz then had the ground surveyed and again went to the defendant, and warned him that he was building his house on the plaintiffs’ ground. This testimony is not denied by the defendant. It is true that he says in general terms that the plaintiffs never laid any claim to the ground while he was building the house, but he does state that while he was building the house Dr. Foltz talked to him and stated that the plaintiffs owned a strip of ground west of the bridge. It will be noted that the defendant’s deposition was taken after Doctor Foltz had testified, and he does not deny the conversation that Doctor Foltz says that he had with him in regard to the location of the lot. His whole testimony shows that he built his house on the strip of land in question because he relied on the correctness of the survey he had made and on that account paid no attention whatever to the warning or notice given him by Doctor Foltz.
It is well settled that, even under the betterment act, from the time a defendant is chargeable with notice, he improves the land at his own risk and can assert no just claim or tax the true owner for improvements such, perhaps, as he does not desire to be made. Porter v. Doe, 10 Ark. 186; Douglass v. Hunt, 98 Ark. 320.
Reversed and remanded with directions to enter a decree in favor of the plaintiff. | [
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Hart, J.,
(after stating the facts). It is conceded that Mrs. Carroll was a trespasser, and it is the settled rule in this State that the only duty a railroad company owes a trespasser walking on its track is not to wilfully or negligently injure him after discovering his peril. St. Louis, I. M. & S. Ry. Co. v. Evans, 74 Ark. 407; St. Louis S. W. Ry. Co. v. Jackson, 91 Ark. 18; Adams v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 300; Chicago, R. I. & P. Ry. Co. v. Bunch, 82 Ark. 522.
In the application of this rule it is earnestly insisted by learned counsel for the defendant that the verdict of the jury was not warranted by the evidence. It must be conceded that the case is a very close one, but we are unable to agree with the contention of counsel for the defendant. Under the principles of law announced in the cases cited above when the defendant was charged with the knowledge of the presence of Mrs. Carroll on its track, it immediately owed her the duty of exercising ordinary care and diligence to prevent injury to her. The boy, James Shope; testified that the brakeman on the flat car in front of the engine looked at Mrs. Carroll and then looked away to the side of the track. He says there were no obstructions and nothing to prevent the brakeman from seeing her when he looked at her. Another witness testified that he saw the brakeman walking towards the front of the flat car and looking towards Mrs. Carroll. The boy Shope says that he thinks that Mrs. Carroll walked on the track for a distance of twenty-five yards before she was struck. The railroad company had the distance measured from the trestle to a point on the track opposite Mrs. Rawlins’ house, and the distance is 112 feet. They also had the distance measured from the trestle to the top of the hill where the train could first be seen, and this was 547 feet. All the witnesses say there was nothing to obstruct the view of the brakeman. From this testimony the jury was warranted in finding that the brakeman did see Mrs. Carroll walking down the track a short distance ahead of the train with her back toward it. From this time on the defendant owed Mrs. Carroll the duty of exercising ordinary care and diligence to prevent injury to her. It is the theory of the defendant company that Mrs. Carroll knew that the train was approaching her, and believed that she could cross the trestle and step over to the side of the track before • the train reached her, and that she slipped and fell in the trestle while crossing it. The testimony shows that the train was making a good dfeal of noise as it approached, and that all of the other persons heard it coming, and that Mrs. Carroll was an able-bodied woman and in possession of all her faculties. From this testimony, under the instructions given by the court, the jury might have found for the defendant. But the testimony also shows that Mrs. Carroll never looked back from the time she stepped on the railroad track until just before the train struck her. The boy, Shope, says that she was struck just before she reached the trestle, and was dragged by the train across the trestle into the hole where she was found. The trestle was about ten feet long and averaged about two and a half feet in height. The hole in which she was found was about two feet from the end of the trestle farthest from her, when she was struck. Hence, if the testimony of the boy Shope is true, she was struck by the train just before she reached the trestle, and was dragged nearly across it, a distance of about eight feet. The evidence shows that the train was a rolling down grade about 2^2 per cent, and that the steam was shut off. The engineer says that the speed of the train was about four miles per hour. Under these circumstances, the jury were warranted in believing that Mrs. Carroll was walking along the track, and, through inattention, absentmindedness, or some other mental abstraction, was unaware of the near approacah of the train, and that, had the servants of the defendant blown the whistle when they saw that she did not look back, they might have attracted her attention, and she could have stepped to one side and avoided injury to herself. Again, the testimony shows that the train could have been stopped in the space of six or eight feet; that it could have been stopped either by the engineer or by the brakeman turning off the angle-cock in the front of the engine. Had the brakeman kept a lookout after he discovered her presence on the track, he would have seen that she did not get off when the train was getting nearer to her. He could then have warned her of her danger, or, failing in that, could have stopped the train in time to have avoided injuring her. At least, these are the deductions that the jury were warranted in drawing from all the facts and circumstances adduced in the evidence. The boy, Shope, said that she did not look around until just before she was struck by the train. Another witness said that he saw her standing six or eight feet in front of the train facing it the moment before she was struck. The jury might have inferred from this testimony that she was wholly unaware of the approach of the train until just before it struck her, and that when she heard it she turned around in a startled manner facing it. As we have already seen, the jury was warranted in finding that the brakeman saw Mrs. Carroll a short distance in front of the train walking along the track with her back to it. From the evidence they were also warranted in believing that, had he looked again, he would have seen that she was unaware of the proximity of the train and the impending danger to her.
The testimony of the boy Shope is criticised because he says that the distance from the top of the hill where the train first came in sight to the scene of .the accident was about a quarter of a mile when in fact it was only 547 feet, as shown by actual measurement. This was a mere inaccur.acy of the judgment of the boy, and did not tend strongly to show that his testimony as to the thing he saw was not true. In any event his credibility was a question for the jury, and they had the right to believe such parts of his testimony as they believed to be true and reject that which appeared to be untrue.
The jury had a right to weigh the testimony and draw all reasonable deductions from it warranted by their common knowledge and experience with human affairs, and, when all the facts and circumstances adduced in evidence are considered together, we think the jury were warranted in finding that the servants of the defendant, after discovering the peril of Mrs. Carroll, did not use ordinary care and diligence to prevent injury to her.
The following questions and answers were asked a witness in the absence of the jury, and were excluded by the court from the jury:
“Q. Detail all that Mrs. Carroll told you about how this accident happened? A. I asked her how it happened, and she says: T was over to my daughter’s and started home, and she told me to wait until that train passed, and I told her I thought I could get home before the train got there, and started, and the accident happened.’ ” .
It is insisted by counsel for the defendant that this was error, but this court has decided adversely to this contention in the case of Murphy v. St. Louis, I. M. & S. Ry. Co., 92 Ark. p. 159, where it held: “In a suit by an administrator of a deceased person to recover damages on account of his killing for the benefit of his mother or his next of kin, it was error to permit the defendant to offer in evidence a written statement made by deceased during his lifetime to the effect that his mother was dead, as there was no privity between the next of kin and the deceased.”
Hence it will be seen that the excluded testimony was not competent in the individual case of the husband against the defendant. The testimony not being competent in the case of the husband against the defendant, the defendant should have asked that the testimony be limited to the case in which it was admissible, and, not having done so, he is not now in an attitude to complain. Murphy v. St. Louis I. M. & S. Ry. Co.. 92 Ark. 159; St. Louis, I. M. & S. Ry. Co. v. Raines, 90 Ark. 482.
The court gave the following instruction: “If you find for the plaintiff as administrator, you will assess the damages at whatever sum you may find from the testimony to be a fair and reasonable compensation for the pain and suffering, if any, that was endured by plaintiff’s intestate on account of the injury complained of. And in this you are to be guided by your sound judgment and discretion as jurors.” It is insisted that the court erred in giving this instruction because by it the jury were directed to be guided by their judgment and discretion, instead of the testimony, in assessing the damages. We do not think the instruction is susceptible of this construction. The jury were plainly told that they were to assess the damages at whatever sum they found from the testimony to be a fair and reasonable compensation, and the court meant to tell them that they were to be governed by their judgment in determining from the testimony what the amount of damages ought to be. If counsel for the defendant thought the instruction open to the objection they now make, they should then by a specific request have asked the court to change the language, and, not having done so, they can not now complain.
It is next insisted that the court erred in giving instruction No. 5 as follows: “If you find for the plaintiff in his own individual right, you will in a separate finding assess his damages in whatever sum you may believe from the evidence he has been damaged by reason of the loss of the service and companionship he would have received from her, but for the injury complained of in his action.” In support of their contention they rely on the case of Helena Gas Co. v. Rogers, 98 Ark. 413. That case is not authority for their contention. There the court held that the wife could not recover for her own mental distress on account of her husband’s pain and suffering. The husband is entitled to the society and companionship of his wife; and where he is deprived of her services and society or companionship, he has suffered a legal injury, and-is entitled to compensation therefor. This is so by the express terms of our statute. . Section 6288, Kirby’s Digest.
Counsel for defendant complain that the court erred in not giving certain instructions asked by it on the subject of discovered peril. The court had already in its instructions given at the request of the defendant fully and completely covered this phase of the case, and it was not necessary to repeat the instructions.'
The judgment will be affirmed. | [
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Frauenthal, J.
This is an action instituted by D. M. Watson against the Kansas City Southern Railway Company and the Memphis, Dallas & Gulf Railroad Company to recover damages for an injury which the plaintiff alleged he sustained by reason of the negligence of both defendants. The alleged injury occurred upon the station platform at Ashdown. At this place there was only one depot, which was owned by the Kansas City Southern Railway Company but which was used by both defendants. At this depot the trains of both defendants stopped and took on and discharged passengers, and agents of both companies sold tickets there for their respective trains. On the day the injury was received, plaintiff purchased a ticket at this depot from the agent of the Memphis, Dallas & Gulf Railroad Company. It was about the time for the departure of his train, and plaintiff went from the waiting room to the station platform in order to go to said train, which was located on the second track. At this time a local freight train of the Kansas City Southern Railway Company was standing on the first track, and freight was being unloaded therefrom. As plaintiff passed over the station platform, he stopped a few moments to talk to a friend, and, while thus engaged, a railroad employee pulled a baggage truck along the platform and suddenly dropped its tongue. The truck was going with such rapidity that it struck the plaintiff on his leg, just above the ankle, and painfully injured him. The testimony tended to prove that when plaintiff saw the truck thus turned loose, he sprang aside, upon another truck which was standing nearby on the platform, in order to escape from the impending injury, and was there struck by the truck. The testimony on the part of the defendants tended to prove that the employee who was in charge of this truck was in the service of the Kansas City Southern Railway Company. A verdict of $150 was returned in favor of plaintiff and against both defendants, and both of them have appealed from the judgment rendered thereon.
It is urged by counsel for the Memphis, Dallas & Gulf Railroad Company that the injury complained of was not caused by one of its employees, but by a servant who was solely in the employ of the other railroad company, and on this account it was not liable for the injury. The plaintiff had purchased a ticket from this defendant in order to immediately take passage upon one of its trains. In going to his train, he was passing over the station platform, and was there injured/ The depot and station platform were used jointly by both defendants. At this time the plaintiff was a passenger of the Memphis, Dallas & Gulf Railroad Company, and it owed to him the duty to exercise ordinary care to protect him from injury while on and passing over the station platform which it furnished for plaintiff to proceed upon to his train. St. Louis, I. M. & S. Ry. Co. v. Woods, 96 Ark. 311; Hutchinson on Carriers, § 935; 3 Thompson on Negligence, § 274. It is well settled that it is the duty of a railroad company to keep in safe condition its station platform where passengers and those who have purchased tickets with a view to take passage on its trains will ordinarily go, and for failure to exercise ordi nary care in that regard the company is liable for any consequent injury to one of its passenger. Texas & St. L. Ry. Co. v. Orr, 46 Ark. 182; Arkansas Midland Rd. Co. v. Robinson, 96 Ark. 32. This duty not only requires the railroad company as a carrier of passengers to exercise ordinary care to see that the station platform itself is in safe condition and free from any defect from which a consequent injury might be reasonably expected to result, but also to keep such station platform free from obstructions and dangerous instrumentalities, especially at the time when passengers are expected to go to and from its cars. In the case of Warren v. Fitchburg Railroad, 90 Mass, 227, this duty is thus well expressed: “It is the duty of a railroad company to afford to the passengers whom they undertake to carry in their cars a reasonable and safe opportunity to pass from the room or building in which they receive passengers for transportation to the cars. * * * They should provide a safe and convenient way and manner of access to the cars, and in preventing the interposition of any obstacle or obstruction which would reasonably impede him or expose him to injury while proceeding to his car to take his seat.” In 2 White on Personal Injuries on Railroads, § 627, it is said: “The care exacted by the law on the part of the carrier to avoid injury to its passengers include the duty to exercise reasonable care to avoid striking passengers with baggage trucks or similar vehicles used on station platforms where passengers are allowed or invited to congregate to take cars or to alight from trains.” A passenger, while passing over a station platform, which is provided by the carrier for the purpose of going to his train, has a right, while in the exercise of ordinary care for his own safety, to require the servants of the carrier, or those persons who are in service thereon by permission of such carrier, to exercise ordinary care not to injure him while handling trucks and baggage upon such platform. In the case at bar, the station platform was used by both defendants for the purpose of enabling passengers of each railroad company to go to their respective trains. It became the duty of both of them to keep the station platform in safe condition and free from obstructions or dangerous instrumentalities. Neither was absolved from this duty to its passengers, and the Memphis, Dallas & Gulf Railroad Com pany, which occupied the relation of carrier to the plaintiff, was liable to him for an injury received by him in consequence of the unsafe condition of the station platform or of the negligent manner in which employees of either railroad company handled the trucks, baggage or other instrumentalities upon such platform. 3 Thompson on Negligence, § § 2696, 2699; 2 Hutchinson on Carriers, § 938; Cleveland, C. C. & St. L. Ry. Co. v. Reese, 93 Ill. App. 657; Atchison, T. & S. F. Rd. Co. v. Johns, 36 Kan. 769; Pineus v. Railroad, 140 N. C. 450; Mangum v. North Carolina Rd. Co., (N. C.) 58 S. E. 913. It follows, therefore, that the Memphis, Dallas & Gulf Railroad Company was liable to the plaintiff for any injury which he received while on the station platform which was due to the negligent act of an employee of the Kansas City Southern Railway Company in handling trucks or other vehicles thereon, if the plaintiff was himself in the exercise of due care.
The Kansas City Southern Railway Company resists recovery herein against it on the ground that plaintiff was a passenger of the other railroad company, and, according to the undisputed testimony, not its passenger. In this connection counsel for this defendant urges that the court erred in instructing the jury that plaintiff was a passenger, in any event in so far as his relation to it was concerned. The court in substance instructed the jury that if the plaintiff purchased a ticket from the Memphis, Dallas & Gulf Railroad Company for the purpose of taking immediate passage upon its train, then he was a passenger rightfully upon the station platform and entitled to protection as such passenger, as defined in a subsequent instruction. In the subsequent instruction the court told the jury in effect that the defendants were required to exercise ordinary care to avoid injuring the plaintiff while upon the station platform, and did not require of either of the defendants the exercise of any greater degree of care. The injury which was received by the plaintiff was caused by an employee of the Kansas City Southern Railway Company. If the plaintiff was a passenger of the other railroad company, he had a right to be upon the station platform, and the Kansas City Southern Railway Company then owed to him the duty to exercise ordinary care not to injure him, whether he was its passenger or not. As is said in 3 Thompson on Negligence, § 2697: “The obligation of a railway company to see that its platform is reasonably safe is not confined to passengers or to intending passengers; but it extends to all persons who may be lawfully there. Ark. & La. R. Co. v. Sain, 90 Ark. 278; St. Louis, I. M. & S. Ry. Co. v. Jackson, 96 Ark. 469; Denver & R. G. R. Co. v. Spencer, (Col.) 51 L. R. A. 121. The Kansas City Southern Railway Company was therefore not prejudiced by any instruction given by the court in regard to its relation to the plaintiff because the court in no instruction given required of it to exercise any higher degree of care for the protection of plaintiff than that of ordinary care. Its liability for damages for the injury received by plaintiff was based, not upon the fact that plaintiff was or was not a passenger, but upon the fact that it failed to exercise ordinary care in protecting him while rightfully upon its station platform. If it failed to exercise that degree of care, then it was guilty of negligence. The injury was received by plaintiff by reason of the act of its employee, and, that employee having failed to exercise ordinary care, the act was one of negligence, making the Kansas City Southern Railway Company liable.
It is urged by both defendants that plaintiff was guilty of negligence contributing to his injury, and for that reason was not entitled to recover. The court instructed the jury that plaintiff could recover only in event he exercised due care for his own safety, and under the facts of this case we think it was a question peculiarly for the jury to decide as to whether or not he was guilty of contributory negligence. The mere fact that the plaintiff went from the waiting room on to the station platform and there remained for a few moments talking to a friend on his way to his train did not constitute negligence as a matter of law upon his part. Chicago & A. Rd. Co. v. Wooldridge, 32 Ill. App. 237. Nor did the act of plaintiff in jumping on to the truck nearby to escape the danger which appeared impending constitute negligence as a matter of law upon bis part. The mere fact that there was more than one way to escape from the apparently impending peril, arid that plaintiff in the emergency chose the one which was less safe, would not characterize his act as one of negligence as a matter of law. Railway Co. v. Murray, 55 Ark. 248; Railway Co. v. Maddry, 57 Ark. 306; St. Louis, I. M. & S. Ry. Co. v. Stamps, 84 Ark. 241. Under the facts and circumstances adduced in evidence upon the trial of this case, we are of the opinion that the question as to whether or not the plaintiff was guilty of any negligence which contributed to his injury was one for the jury to determine.
It is urged that the amount of the verdict returned by the jury is excessive. The plaintiff was injured on his leg just above the ankle. He was struck by the truck, which cut a gash to the bone. It caused the plaintiff severe pain, and, while he was able to continue his work, it lamed him for at least ten days, and gave him a great deal of pain for several weeks. Three weeks after the injury was received, a physician examined the wound, and found that the outer bone had a knot on it, and that this portion of his leg was swollen and discolored, and that he still suffered pain therefrom. For the pain and suffering thus endured by him and the lameness which was thus caused by the injury, we can not say that the amount of the verdict returned by the jury was excessive.
Upon an examination of the whole record, we find no prejudicial error which was committed in the trial of the case. The judgment is accordingly affirmed. | [
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McCulloch, C. J.
The plaintiff, Fee-Crayton Hardwood Lumber Company, instituted this action in the circuit court of Jackson County against the defendant, B. F. Hogan, to recover possession of mortgaged personal property for the purpose of foreclosing the mortgage lien under the power therein contained. The amount of the mortgage debt is set forth in the complaint, and the prayer thereof is for recovery of the property and for judgment for the amount of the debt. The defendant answered, setting forth two defenses, namely, that the debt had been paid, and also that the plaintiff had failed to furnish a verified account of the mortgage debt before attempting to foreclose. The trial before a jury resulted in a verdict in defendant’s favor, and the plaintiff appealed.
There was a conflict in the testimony as to the amount of credits wh ch should have been placed on the mortgage debt, but no dispute as to the fact that plaintiff had not furnished defendant an itemized account of the amount claimed. The court instructed the jury to the effect that, if any part of the mortgage debt remained unpaid, the verdict should be for the plaintiff for whatever was found due, even though no statement of account had been furnished, and that if there was a balance due on the mortgage debt and the defendant had attempted to dispose of the mortgaged property, then the verdict should be for the plaintiff for the amount due and also-for the possession of the property. The jury having found that nothing was due under the mortgage debt, the question whether an itemized account should have been furnished in accordance with the terms of the statute is eliminated from the case and need not be further discussed. The plaintiff adduced testimony-tending to show that there was a balance of $342.39, exclusive of interest, due on the mortgage debt. On the other hand, the defendant testified that he had delivered to plaintiff lumber and manufactured articles, and also a lot of standing timber which he sold to plaintiff, the price of which aggregated the sum of $592.00, which, if credited on the mortgage debt, was more than sufficient to extinguish it. Among those items was one of $400.00 for the price of the tract of timber land, owned by the defendant, which he stated he sold and delivered to plaintiff, and that the latter accepted it as a payment on the mortgage debt and cut the timber, or at least a considerable portion of it.
It is contended that the court erred in permitting the defendant to testify concerning an alleged oral agreement between the parties, at the time of the execution of the mortgage, that the notes should be payable in lumber. It must be conceded that this testimony was erroneous, but we are of the opinion that the court eliminated the error by instructing the jury that no credit should be allowed for the price of timber or lumber except such as had been accepted by the plaintiff in settlement of the debt. It is apparent from a perusal of the record that the only controversy in the case submitted to the jury was, whether or not the defendant was entitled to certain credits which he claimed. As to the items of credit claimed by defendant, there was a sharp conflict in the testimony, and the jury settled that conflict in defendant’s favor. We are, therefore, unable to see that any prejudice resulted to plaintiff from admitting the incompetent evidence above referred to.
It is also argued that the court erred in allowing defendant to state in his testimony that the timber taken by plaintiff from the land was worth six or seven hundred dollars. This testimony was not objected to, and its introduction can not be assigned as error. Moreover, the court, as above stated, charged the jury that they should not allow any credits except for timber that had been accepted under the settlement, which, of course, could only refer to the $400.00 purchase price.
Plaintiff’s witnesses testified that from time to time they sent credit memoranda to defendant on the receipt of each shipment of lumber which was accepted as a credit on the debt, and it is contended that these became an account stated. No instructions were asked or given on the question of an account stated, and we do not think that the undisputed evidence shows that there was an account stated which precluded the defendant from questioning, in this action, the correctness of’ the credits on the notes. Defendant disputed some of the items which are now claimed to be incorrect; and, even if he was bound by the correctness of the items of credit of which a memorandum was furnished to him, that would not preclude him from claiming a credit for the $400.00, the price of the standing timber. It is not claimed that plaintiff had ever furnished an itemized account showing all the debits and credits which could become an account stated as to the whole indebtedness and credits. It is only claimed that memoranda of the credits were furnished him from time to time as they were applied when lumber was shipped in.
Upon the whole case, it appears to us that the verdict of the jury is against the preponderance of the evidence, but we can not say that the evidence is not legally sufficient to support the verdict, and as there was no prejudicial error committed we are not at liberty to disturb the verdict.
The judgment is therefore affirmed. | [
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Kirby, J.
Appellee brought suit against the appellant in a’justice’s court in Sharp County on a claim for $40.77, 10 per cent, commission on $409.77, paid to him as representative of creditors of the Southworth Brothers at Hardy, Arkansas, against whom appellant held many claims for his clients for collection. Appellee bought out the firm, agreeing to pay for the stock of merchandise $1,000, and was notified by appellant as attorney of his clients holding the aforesaid claims, not to pay out the $1,000 purchase money until the claims held by him were satisfied; that, if the thousand dollars purchase money were paid to the creditors of the firm, he would consent for the sale to stand, otherwise he would take steps to place the concern in bankruptcy. The creditors all agreed to the arrangement except Mrs. Powell, who claimed she was a preferred creditor, and, the payment of her demand being refused, she brought suit against appellee and the Southworth firm. Appellee defended this suit, and defeated her claim, and the court ordered him to distribute the thousand dollars he agreed to pay for the stock among the creditors of the firm, after payment of the costs.
Appellant held claims aggregating $818.62, upon which he received payment from appellee of a dividend of 50 per cent., amounting to $409.77. Appellant asked the chancery court to allow appellee a fee to be taxed as cost in the case in the distribution of the money, which was denied, and after the trial said to appellee: “I would agree to allow you to retain out of the claims I represented 10 per cent, for the trouble and charge it up to' cost.”
Appellee paid the whole 50 per cent, dividend to appellant, at the same time writing:. “I send you the full amount in check. You can send me check for 10 per cent — $40.90. The reason I did not take out the 10 per cent., as you told me to do, is, I wanted to show that it is all drawn out. Send check to W. S. Snow, Evening Shade.”
Appellant acknowledged receipt of the check on October 22, 1910, but said nothing about returning any money as commission to appellee.
On June 11, 1911, replying to a demand from, appellee therefor, he wrote: “I think you should have been allowed a fee, and I asked the court to do it. I would not have objected if you had retained your fee out of the check forwarded, but you sent the full amount, of which my clients had notice, and they then refused to allow me anything;” and that if he paid the claim it would have to be done out of his own pocket. He did not think it was right to do it.
Appellee replied, insisting that he should be paid the 10 per cent., without regard to by whom it was paid, and brought this suit. He recovered judgment in the justice’s court, and also on appeal to the circuit court, and from this judgment appellant appealed.
It is insisted by appellant that the judgment was not sustained by evidence and is contrary to law; that there was no consideration for his promise to pay appellee 10 per cent, commission if it was made. Appellee was only protecting his own interest and his purchase of the stock of goods of the South worth Brothers by heeding the notice of appellant, representative of creditors of Southworth Brothers, in having the purchase price of the stock distributed among the creditors of the concern. He was doing likewise in defending against the alleged claim of the preferred creditor and defeating it; and, while this re- suited in the payment of a larger dividend on the claims of the creditors of Southworth Brothers, the fact that he defeated it shows conclusively that if he had paid it without resisting the claim he might still have been liable to the páyment of the other creditors in the same amount as was finally paid. The chancery court did not regard him entitled to a fee upon his claim of having done something that resulted to the benefit of the creditors, when he was but protecting himself in the matter, and refused to allow him a fee or commission therefor. Any promise made by appellant to pay him a commission thereafter was without consideration and not enforceable, since he was was bound to do as he did do in any event, and to pay the purchase money as directed by the order of the court upon the valid claims against the Southworth Brothers, whose stock of merchandise he had bought.
The judgment is reversed, and the cause dismissed. | [
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Wood, J.
Appellant was convicted under section 1814 of Kirby’s Digest of the crime of accepting and receiving on deposit money at the Bank of Siloam, of which he was presi dent, after the said bank had become insolvent, and he appeals to this court.
The indictment charges, in substance, that he “knowingly and feloniously did accept and receive on deposit in said Bank of Siloam, a corporation doing a banking business, from M. E. Gaither the sum of one hundred dollars in gold, silver and paper money, current money, the bank being then and there insolvent and the said R. S. Morris being the president of said bank, well knowing at the time he accepted and received the money 'on deposit that the Bank of Siloam was insolvent.”
Excepting the name of the defendant and the amount alleged to have been received, the indictment was precisely the same in form as that approved by this court in Davey v. State, 99 Ark. 547.
A corporation can only act through its agents. The allegations of the indictment were sufficient to charge that the bank had received and accepted the deposit while insolvent, and that the appellant, who was president of the bank, and who acted for it in receiving and accepting the money on deposit, knew at the time the bank was insolvent, and therefore violated the provisions of the statute in thus accepting the money on deposit.
It was unnecessary for the indictment to charge in specific terms that appellant was an officer of the bank. He was designated in the indictment as president of the bank, which was sufficient to show that he was an officer of the bank. The allegations of the indictment were amply sufficient to show that the bank, through its duly constituted agent, accepted and received the deposit, being at the time insolvent, and that the appellant, being at the time president, and therefore an officer of the bank, and knowing of its insolvency, accepted and received the deposit. Everything necessary to constitute the offense charged was stated.
The appellant was indicted as principal offender, and not as an accessory, under the terms of the statute.
The terms “accept” and “receive” as used in the statute are synonymous, and are intended to describe but one offense. The indictment shows that it was returned by the grand jury of Benton County, and that it was filed in open court. The indictment was in the form prescribed by section 2244 of Kirby’s Digest, and was both in form and substance a valid indictment, as held in Davey v. State, supra.
The appellant filed a motion for continuance in due form, setting up, in substance, that he was in no condition, either mentally or physically, to undergo a trial. He showed that he was seventy-four years of age, and that, about eighteen months prior' to August 6, 1910, he had suffered a stroke of paralysis which had incapacitated him for the transaction of business, and that about the first of November, 1910, he suffered a stroke of apoplexy; that by reason of these afflictions he was under the treatment of physicians who advised that a trial at that time, with “its necessary attendant mental and physical strain upon a charge of felony, would tend to end fatally.” He supports his motion with the affidavits of several physicians, to the effect that on account of the mental and physical condition of the appellant, brought about by the afflictions indicated, “the excitement of a trial might bring about a recurrence of the ailment, which might end in immediate death,” and. that in the opinion of these physicians “he was unable to attend court or to testify as a witness.”
The motion was also supported by the affidavit of appellant’s counsel, in which he sets up, among other things, that from November 1, 1910, to about February 15, 1911, he, as appellant’s counsel was warned by the physicians not to talk or communicate with appellant “as his physical and mental condition would not permit such consultation as was necessary for the preparation of his defense in the case of a felony;” that, by reason of appellant’s infirmities and the restriction placed upon him and his counsel by his advising and consulting physicians, “appellant had not had reason enough to appreciate his peril or act advisedly with counsel in suggesting such facts as “would break the force of the prosecuting evidence,” and had not been able “to adduce such exculpatory proof as his case would warrant.”
Motions for continuance are addressed to the sound discretion of the court, and such discretion will not be controlled unless it appears that it was abused. The appellant was a witness in his own behalf at the trial, and his testimony, as set out in the abstract of the Attorney General, does not disclose any inherent weakness or indicate that the appellant was in any manner incapacitated as a witness by reason of his age or the physical infirmities described by his counsel and physicians. His evidence does not, upon its face, give any indication that appellant was laboring under any physical or mental disability.
Counsel, in his affidavit, did not set forth any material evidence of which he was deprived by reason of the mental and physical infirmity of his client, nor show specifically wherein his client was unable to give him specific information that would be useful in the preparation for and in the conduct of his defense.
The affidavits of the physicians, after setting forth the nature of his ailments, simply expressed the opinion that the appellant was unable, on account of his infirmities, to testify as a witness, and that to do so would endanger his life. But appellant did testify as a witness, and went through the' ordeal of a trial, and it does not appear that his life was endangered thereby, thus showing that the apprehension of the physicians was erroneous.
While it occurs to us that the trial court might very appropriately, under the circumstances, have granted the continuance, yet we can not say that his refusal to do so resulted in any prejudice to the appellant, and therefore it was not an abuse of the court’s discretion, and was not such an error as should reverse the judgment.
The indictment alleged that “the sum of one hundred dollars in gold, silver and paper money, current money in the State of Arkansas, of the value of one hundred dollars,” etc., was accepted and received. The testimony shows that eleven dollars of the amount charged was in currency and the residue was in checks. The amount received was evidenced by the deposit slip, showing the sum of eleven dollars in currency and the balance in checks. The appellant objected to the introduction of the deposit slip and to the testimony tending to show that the deposit consisted of checks instead of currency, and he now contends that there was a fatal variance on this account between the allegtions of the indictment and the proof. The contention is not sound. The proof was sufficient to show that eleven dollars in currency were accepted and received,'and checks representing the balance of the amount alleged were received. The offense, under the statute, was complete if the appellant knowingly received any amount of money, and it was proved by evidence tending to show that he received the sum of eleven dollars in currency. It was wholly unnecessary to show that he received the full amount charged in order to sustain a conviction; proof of any amount was sufficient.
We deem it unnecessary to set out the evidence. After careful consideration, we are of the opinion that it is amply sufficient to sustain the verdict. No objection is urged here to the instructions of the court. We assume, therefore, that they were correct.
Finding no reversible error, the judgment is affirmed. | [
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Frauenthal, J.
This is an appeal from a judgment denying appellant’s motion to retax the costs in certain suits and to strike therefrom the fee of $10 for the prosecuting attorney which the clerk had taxed against it in each case. Four suits were instituted against appellant in the name of the State for the benefit of the Greenwood District of Sebastian County, to recover the penalty prescribed by section 6595 of Kirby’s Digest for a failure to ring the bell or sound the whistle on its locomotive when approaching road crossings. In each of the cases judgment was rendered against appellant for a recovery of the penalty, and in each case the clerk taxed as part of the costs a fee of $10 for the prosecuting attorney. By section 6595 of Kirby’s Digest it is provided: “A bell of at least thirty pounds weight or a steam whistle shall be placed on each locomotive or engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said road shall cross any other road or street and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of $200 for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informant and the other one-half to the county; and the corporation shall also be liable for all damages which shall be sustained by reason of such neglect.” By section 6599 of Kirby’s Digest it is provided that all penalties imposed by said statute may be sued for by the prosecuting attorney in the name of the State.
It has been repeatedly held by this court that the violation of the provisions of the above statute is not a criminal offense, and that the proceedings instituted for the recovery of the penalty thereon provided for are civil in their nature and not criminal. A suit for the recovery of this penalty is a civil action, governed by the rules which are applicable to civil procedure. Railway Company v. State, 55 Ark. 200; Railway Company v. State, 56 Ark. 166; Railway Company v. State, 59 Ark. 165; Kansas City, S. & M. Rd. Co. v. State, 63 Ark. 134. By section 3488 of Kirby’s Digest it is provided that the prosecuting attorney shall be allowed a fee of $10, to be taxed as costs, "‘for each conviction on indictment, presentment or information for misdemeanor or breach of the peace.” This necessarily refers to a judgment or conviction had upon a charge for a criminal offense. The judgments rendered in the present suit against appellant were obtained upon complaints in the name of the State, and we are of opinion that the prosecuting attorney is entitled to a fee of $5, to be taxed as costs in each case, under said section 3488 of Kirby’s Digest, which provides that the prosecuting attorney is entitled to a fee of $5 “for each judgment on complaint and information, or otherwise, in the name of the State or of any county.” State v. Jackson, 46 Ark. 137; Pearce v. State, 55 Ark. 387. The judgment will be modified so as to tax as costs a fee of $5 in behalf of the prosecuting attorney in each of said cases, and, as modified, the judgment is affirmed. | [
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Hart, J.,
(after stating the facts). Counsel for the defendant contend that, under the laws of the State of Kentucky, she is entitled in a collateral action in that State to set up the fact that she was a married woman at the time of the execution of the notes and at the time of the rendition of the judgment in the Jefferson County Chancery Court of Kentucky, and that she became bound merely as a surety. In short, they contend that the personal judgment rendered against her in the chancery court of Jefferson County, Kentucky, was void. They rely upon the cases of Stevens v. Deering, 10 Ky. Law Reporter, p. 303 and Parsons v. Spencer, 83 Ky. 305.
It is true that in those cases it was held that a personal judgment against a married woman upon a contract made by her during coverture is void, and that she may resist its enforcement against her general or separate estate. The reason given by the court for its ruling was, that, legally speaking, she had no personal existence. But the law of that State in this regard has been changed by the act of March 15, 1894, being sections 2127-8 et seq., Kentucky Statutes. In the case of Wren v. Ficklin 59 S. W. p. 746, the.Court of Appeals of Kentucky held: “Under the Married Women’s Act of March 15, 1894, a married woman can not resist the enforcement of a judgment against her on the grounds that she was liable only as surety in the note upon which the judgment was rendered, as that defense could have been made in the original action.” The court said.
“The rights of the parties to this litigation must be determined by the act of March 15, 1894, and the general doctrine as to the validity of judgments. Section 2128 of that act provides that a married woman may ‘make contracts and sue and be sued, as a single woman, except that she may not make any executory contract to. sell or convey or mortgage her real estate, unless her husband joins in such contract.’ Section 2127 also provides that ‘no part of a married woman’s estate shall be subjected to the payment or satisfaction of any liability, upon a contract made after marriage, to answer for the debt, default or misdoing of another, including her husband, unless such estate shall have been set apart for that purpose by deed of mortgage or other conveyance.’ Section 2128 certainly confers upon a married woman the right to make contracts and sue and be sued. If she can sue and be sued she has the same right to make the defense to an action as a single woman would have. If she can be sued and she is capable of making a defense to the action, then whatever judgment may be rendered against her is binding. She must be relieved from the effects of that judgment and the consequences of it in the samé way that a single woman would get relief.”
The court held that the language of the married woman’s act does not, nor was it intended to, put it within the power of a married woman, after her liability had been fixed by the judgment, to then plead that it was an obligation for the debt of another. In short, the court held that in all respects, except within the exceptions pointed out in the statute, a married woman, so far as her property rights are concerned, stands in the same position as if she were a single woman. To the same effect, see Shanklin v. Moody, 66 S. W. 502, 23 Ky. L. Rep. 2063; Howard v. Gibson, 60 S. W. 491, 22 Ky. L. Rep. 1294.
By section 518.of the Civil .Code of Practice of Kentucky the court in which a judgment has been rendered has power, after the expiration of the term, to vacate it for erroneous proceedings against á person under disability, except coverture, if the condition of the defendant does not appear in the record, nor the error in the proceedings. Eversole v. First National Bank of Hazard, 124 S. W. (Ky.) 360. The proceedings in the chancery court of Jefferson County, Kentucky, showed that defendant in this action was a married woman. She should, therefore, have set up as a defense to that action that she signed the note sued on as surety, and, not having done so, she is precluded by the judgment rendered against her. Swearingen’s Executor v. Tyler, 116 S. W. (Ky.) 331, and authorities cited supra.
In the case of Jordan v. Muse, the court held: “A judgment of the court of another State is conclusive as to the merits of the original cause of action.” 88 Ark. 587; McCarthy v. Troll, 90 Ark. 199.
The court sustained the attachments which were levied on the lands of the defendant devised to her by her brother Thomas S. Rudd. The court did not err in so holding. Since each devisee or legatee has a legal estate which may be alienated or devised by him, such estate is subject to execution or attachment against him in the same manner as other beneficial legal estates. 17 Cyc. 983; 2 Freeman on Executions, (3 ed.), § 183; McClellan v. Soloman, 23 Fla. 437; Hyde v. Barney, 17 Vt. 280; Procter v. Newhall, 17 Mass. 81; Byerly v. Sherman, 126 Ia. 446, 102 N. W. 157; Martinovich v. Marsicano, 150 Cal. 597, 119 Am. St. Rep. 254, 89 Pac. 333.
It is next contended by counsel for the defendant that no personal judgment was rendered against Anna R. Taylor in the chancery court of Jefferson County, Kentucky. We can not agree with their contention in this regard. The judgment there, omitting the style of the case, is in part as follows:
“This cause having been heard and submitted in chief upon the pleadings, exhibits and proof and upon the entire record, and the court being fully advised, it is considered and adjudged by the court that the plaintiff, Rebecca S. Turner, do recover herein, under her cause of action stated in her original petition,” certain sums of money; “and that the said plaintiff, Rebecca S. Turner, do further recover herein under her cause of action stated in her amended petition” certain other sums of money, “and that said plaintiff, Rebecca S. Turner, do further recover herein her costs herein expended and incurred, including all costs of sale herein.”
It follows that the judgment shoüld be affirmed. | [
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Wood, J.,
(after stating the facts). The statute provides that a wife, when granted a divorce against the husband, shall be entitled to one-third of the husband’s personal property absolutely. The appellee contends that the appellant should not have been granted a divorce at all, and he is correct about it. There is no testimony except that of appellant herself to sustain the allegation of her complaint that the appellee had offered her such indignities as to render her condition in life intolerable. A divorce can not be granted upon her uncorroborated testimony. True, she says that she was accused by the appellee of taking goods out of his commissary, and that appellee slapped her, and to other things that, if corroborated, would be sufficient to sustain the decree of the chancellor granting her a divorce, but we are of the opinion that the tes timony of the other witnesses, which we have set out in the statement, fails to show any corroboration whatever of appelant’s testimony.
The testimony of appellant’s son to the effect that he had not received from his mother any goods out of the commissary did not tend to corroborate her statement that appellee had accused her of stealing these goods.
The testimony of the witnesses, who are neighbors of the Sheltons, to the effect that they had heard that appellant and appellee were not living peaceably as husband and wife, did not tend to corroborate appellant’s testimony to the effect that her husband had mistreated her. The testimony of these witnesses as to what they had heard of the manner in which the Sheltons were living, without any personal knowledge of any disagreement between them or ill-treatment of appellant by the appellee, was hearsay and incompetent.
In Sisk v. Sisk, 99 Ark. 94, it is said: “Divorces are not granted upon the uncorroborated testimony of the parties and their admissions of the truth of the matters alleged as grounds therefor.” To the same effect see, Chappell v. Chappell. 83 Ark. 533: Scarborough v. Scarborough, 54 Ark. 20; Rie v. Rie, 34 Ark. 37; Kirby’s Digest, § 2677.
It follows that the court erred in granting the divorce and awarding the appellant one-third of the real estate of appellee, and did not err in refusing to allow plaintiff the personal property prayed for in her complaint;' for if appellant is not entitled to a divorce she is not entitled to a division of the property at all.
The judgment is therefore reversed, and the complaint of appellant and the cross complaint of appellee are dismissed for want of equity. | [
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McCulloch, C. J.
The plaintiff was scalded by water expelled from a steam pipe at defendant’s mill, and sues to recover damages. Defendant was operating a stave mill, and used an engine and boiler leased from John P. Holmes, plaintiff’s employer. Holmes contracted with defendant to supply the boiler with sufficient water, and he assigned that duty to plaintiff, whose other work for Holmes was to superintend the making and hauling of stave bolts, the business in which Holmes was then engaged. On the morning the injury occurred, the plaintiff went to the mill to ask Kinard, the engineer (defendant’s employee) about the -supply of water, and walked up near the engine, where Kinard and one Miller, the commissary keeper, were sitting. He asked Kinard about the water, and the latter replied that it wouldn’t last longer than 3 o’clock in the afternoon. Kinard immediately walked away, and plaintiff squatted down beside Miller to ask about sending some groceries to the woods, and in a few moments a small quantity of hot water from the steam pipe struck him in the face and scalded him.
The pipe from which the hot water escaped ran from the pop-valve, and was connected with the boiler. It was elevated, and extended four or five feet from the boiler, the end being about eight feet from the ground. Plaintiff was about ten feet from the end of the pipe and in range of it when Kinard walked away from him and when he was struck by the water. The escape of the hot water was caused in this wise: Kinard climbed up to the pop-valve to adjust it. At first it was set so that it would pop off when the steam pressue was 40 pounds; he ran the set screw down so that it would, pop off at 90 pounds pressure, and then so that it would pop off at 110 pounds pressure. He pulled the lever and tried it at that pressure, and then it was that the sudden pressure of steam expelled the hot water from the pipe. This all occurred, according to the testimony, in a short space of time — about two minutes or less. Kinard knew that plaintiff was sitting, when he left him, in range of the pipe. He says he didn’t know that there was any water in the pipe. The presence of the water in the pipe was caused according to Kinard’s testimony by the condensation of steam. Plaintiff testified that the steam would condense in the pipe, and also that when the boiler had too much water in it some of the water would get into the pipe.
The only question presented is whether Or not the testimony was sufficient to sustain the charge of negligence. The exceptions to instructions were in gross, and can not be considered, as the correctness of only one of them is now challenged. Dowell v. Schisler, 76 Ark. 482. It is insisted that the injury occurred purely from an accident which could not reasonably have been foreseen, and that the resultant injury by reason of the escaping water was too remote for the act of the engineer in pulling the lever to be treated as the proximate cause. We think the testimony presented a question for the jury to determine whether the engineer was guilty of negligence which was the proximate cause of the injury. He knew that the plaintiff was squatting within range of the pipe, and that if any water came from the pipe it was likely to strike him. The testimony tends to show that water was likely to accumulate in the pipe, and that the engineer knew this or could have, known it by the exercise of ordinary care. He admits that it could accumulate there, and that if he 'had thought about it at the time he would have known it.
The question was also one for the jury whether or not plaintiff was guilty of contributory negligence in stopping in range of the pipe. He stopped there only for a few moments, and he did not know that the engineer was working with the pop-valve. It does not appear that any danger from that source was to be anticipated unless the lever should be pulled.
Affirmed. | [
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McCulloch, C. J.
On March 16, 1911, the petitioner Mrs. Alice White, placed her five children in the Odd Fellows’ Orphan Home at Batesville, Arkansas, of which the respondent, S. F. Clark,, is superintendent, and on July 17, 1911, she sued out a writ of habeas corpus to recover the custody of the children. On the hearing of the writ, the circuit judge awarded the custody of the children to the petitioner, and that judgment is brought here by certiorari for review.
The Grand Lodge of the Independent Order of Odd Fellows has established and is maintaining at Batesville a home for the orphan children of its deceased members. Certain rules are prescribed which must be complied with in placing children in the home; among other things it being provided that the parent shall agree to leave the children in the home until they arrive at full age of maturity. The home is under the control and management of a board of trustees and a superintendent. Petitioner’s husband was a member of said order, and she signed and filled out the customary blank form, stating “that she was unable to provide proper and suitable clothing, sustenance, education and a home for said children, ” and that the children were accepted and taken into the home at her special request. In the affidavit she answered formal questions to the effect that the father of the children left no means of support, and that they had no near relatives to support them. The petitioner did not allege in her complaint that she was able to support the children, nor did she offer any proof to that effect. Upon that state of the case, it was erroneous to award her custody of the children. In a number of cases this court has decided that “in questions of this kind concerning the custody of infants the main consideration that should influence the court is the best interest and well-being of the child.” Coulter v. Sypert, 78 Ark. 193; Lipsey v. Battle, 80 Ark. 287; Wofford v. Clark, 82 Ark. 461; Jackson v. Clay, 89 Ark. 501.
The petitioner could not, and did not, by her contract, deprive herself permanently of the custody of her children. Lipsey v. Battle, supra. But where, on account of her inability to care for the children, she had recently placed them in an orphan’s home, where they could be properly cared for and educated, they should not be taken from the home and restored to the custody of the parent without at least some showing that her condition had changed so as to enable her to take care of the children.
The conclusion which we reach in the case, and the decision we now render, does not preclude the petitioner from a renewal of her application to have the custody of her children restored to her; but for the error indicated, in awarding custody without any proof, the order of the circuit judge is. quashed, and an order will be entered here directing that the children be delivered to the respondent as superintendent of the orphan’s home. | [
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Kirby, J.,
(after stating the facts). The instruction, numbered 1, as requested, should have been given. St. Louis, I. M. & S. Ry. Co. v. Ewing, 85 Ark. 53; St. Louis, I. M. & S. Ry. Co. v. Norton, 71 Ark. 317.
It is insisted by learned counsel for appellee that there was no testimony upon which to base such instruction, and that no prejudice could have resulted from the failure to give it, since the undisputed testimony shows that the employees did keep the lookout required by law, the engineer and fireman both having testified they were keeping a lookout at the time and that the injury was not done by that train.
It is true that no witness testified that the animal was struck by a train, but she was found near the track badly in- • jured, opposite where a horse’s tracks left the track of the railroad, after having come down the track for fifty or sixty yards between the rails, the tracks of other horses showing on the sides of the dump and at the ends of the ties, and the jury might have inferred from all the facts in evidence that she was injured by the running of a train on appellee’s road, either by the one upon which the employees testified a lookout was kept, or another train.
No presumption arises from the finding of an animal injured near a railroad track that it was done by the running of trains, as the court properly told the jury in .its instruction numbered 1. Railway Co. v. Sagely, 56 Ark. 549; Railway Co. v. Parks, 60 Ark. 187; Midland Valley Rd. Co. v. Skinner, 99 Ark. 370. It is only after proof of facts and circumstances from which the jury can reasonably infer that the animal was injured by the operation of a railroad train that the presumption arises that it was negligently done. “But this presumption of negligence against the railroad company could be rebutted by proof that at the time of the injury complained of the company did exercise due care and diligence and was free from negligence.” Midland Valley Rd. Co. v. Skinner, supra.
When sufficient proof is introduced to convince the jury that the injury to the animal was caused by the operation of the train, then the presumption that the injury was the result of the railroad company’s negligence arises and tends to contradict the testimony of the employees that a proper lookout was kept, and it can not be said that the the evidence of such employees was undisputed. This presumption of negligence is rebuttable, however, and, if the jury believed from the evidence that a proper lookout was kept, and the animal was not discovered, it is rebutted, for it might have come upon the track so close to the approaching train that the injury could not have been avoided, without regard to whether a proper lookout was kept or not, although, no evidence of this kind was introduced in this case.
Instruction numbered 2, as requested, was properly refused, since it directed a finding against the defendant if the animal in question was injured by one of its trains, without regard to whether it was negligently done or not.
Instruction numbered 4 was subject to like objection,in that it, after properly stating that the injury to the animal could be proved by circumstantial evidence, etc., told the jury that if,they believed from a preponderance of the evidence, taking the facts and circumstances into consideration, that the animal was injured by a train, the presumption would arise that it was negligently done, and directed them to find for the plaintiff. The direction was not proper, since it had the effect to declare the presumption of negligence conclusive.
No other instruction, defining the duty of appellee to keep a lookout for stock upon its track, while in the operation of its trains, being given, for the court’s error in refusing to give appellant’s instruction numbered 1 the judgment is reversed, and the case is remanded for a new trial. | [
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Kirby, J.,
(after stating the facts). It is contended by appellee that there is no bill of exceptions in the record, and that therefore the judgment must be affirmed. What purports to be a bill of exceptions, with a certificate for the signature of the judge, was included, but the judge who tried the case did not sign said certificate nor the bill of exceptions at all. The purported bill of exceptions recites that it was presented to the Hon. Paul G. Matlock, special judge, who presided in the case, within the time allowed for its preparation for signature, and contains his letter giving his reasons for not signing it, as follows:
“Fordyce, Ark., Sept. 14, 1911.
“Judge G. W. Norman, Hamburg, Ark.
“Dear Judge — Yours containing bill of exceptions to hand. On examination I find myself unable to sign the same because:
“1.. Your instructions numbered 1, 2, and 3 were overruled, but no exceptions were saved.
“2. The court gave the instruction quoted as the law in the case, which, was accepted as the law in the case by both sides, no exceptions being saved by either side.
“Brother Compere filed an exception or protest of some kind to have your motion for a new trial corrected, but no action was taken; yet I think it should be in the bill of exceptions;
“ Aménd the transcript to conform, and I will gladly sign it.
“Yours very respectfully,
“Paul G. Matlock.”'
It is contended by appellant that said letter amounts to an approval of the bill of exceptions, except as to the giving and overruling of instructions and saving of exceptions thereto, and that the affidavits of certain members of the bar who were present at the trial, also included, show the court’s rulings and exceptions saved.
It has long been held that a bill of exceptions can only be signed by the judge before whom the case was tried and the exceptions made, and that one not so signed is a nullity and can not be noticed. Watkins v. State, 37 Ark. 370; Turner v. Collier, Ib. 530; Cowall v. Altchul, 40 Ark. 172; Bullock v. Neal, 42 Ark. 278.
The object of the statute in requiring the trial judge to sign the bill of exceptions is to furnish a certain test of its accuracy, and his certificate must be an unqualified statement that the matters and things contained therein are true. Kansas City, S. & M. Rd. Co. v. Oyler, 51 Ark. 280; Huff v. Citizens Bank, 99 Ark. 97; Williams v. Griffith, 101 Ark. 84.
The letter of the special judge who tried the case is not only not a certificate that the matters contained in the bill are true, but a refusal to sign same at all because it did not correctly state the facts relative to the giving and refusing of instructions and saving .of exceptions thereto. If appellants did not desire to correct the bill to conform to his view,, after being advised by his letter, they should have insisted upon his signing the same in any event. If he had struck out, before signing, any matters that they thought the bill should rightfully contain, he should have so certified, and appellants could then have preserved the excluded matters by affidavits of the bystanders. Boone v. Goodlett, 71 Ark. 577; Fordyce v. Jackson, 56 Ark. 601.
Said letter of the trial judge can in no wise be considered a certificate of the accuracy and verity of the bill of exceptions nor a signing thereof. It was not signed by the judge who tried the case, and was a nullity; and if such defect can be cured by the affidavits of bystanders, it was not done in this instance. The bill of exceptions being a nullity, it can not be considered for any purpose by this court, and without such consideration it is not possible to review the case for errors occurring upon the trial, nor as to the sufficiency of the testimony. It follows that the judgment must be affirmed. | [
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Hart, J.,
(after stating the facts). The first claim by counsel for the plaintiffs is that this case is controlled by the principles announced in Long v. McDaniel, 76 Ark. 292, and Treakel v. Vaughan, 83 Ark. 258; but we can not agree with their contention. In Long v. McDaniel there was a promise by the owner of the building- to pay for the plumbing and material used in repairing it, if the lessee did not. This was held to be an original promise because of the interest of the owner of the building in the performance of the contract.
In Treakel v. Vaughan, supra, a promise to an attorney by the'purchaser of real estate that he would pay him for preparing the abstracts and statements of title to the property which he contemplated purchasing if the vendor did not, was held to be an original promise, upon which the promisor was liable. This conclusion was also based upon the fact that the vendee had a beneficial interest in the performance of the work by the attorney. Here the primary object of Nixon was not to subserve or promote his own interest. The mere fact that he had an interest in the performance of his tenant’s contract can not determine his liabiltiy to be that of an original promisor.
It is the settled law in this State that in determining whether an oral promise is original or' collateral, the intention of the parties at the time it was made must be regarded; and in determining such intention the words of the promise, the situation of the parties and all of the circumstances attending the transaction should be taken into consideration. Kurtz v. Adams, 12 Ark. 174; Swaboda v. Throgmorton-Bruce Co., 88 Ark. 592.
■Tested by this rule, it is contended by counsel for the plaintiffs that the court erred in directing a verdict for the defendant Nixon; but we can not agree with this contention. All of the facts stated by counsel in their opening statement were considered by the court as proved and were taken as true. The court then found that the promise of Nixon was a collateral agreement to answer for the debt of Boone, and was therefore, within the statute of frauds. The fact stated by counsel and taken by the court as true showed that on the book account of the transaction the charge was made to Boone, and on the right of the name of Sam Boone were the words: “0. P. Nixon stands.” It also appears that both Nixon and Boone were sued in this suit.
While, as contended by counsel for plaintiff, these facts are not conclusive against them, because they were susceptible of explanation and might be rebutted by testimony tending to show to whom the credit was originally given, still it will be noted that no explanation was offered by the plaintiff. On the other hand, plaintiffs’ counsel stated that the goods were sold to Boone, and that the defendant Nixon had promised to pay for them. This statement, when taken in connection with the book charge and the fact that the plaintiffs also sued Boone, establishes conclusively that the real substance of the transaction was that the plaintiff did not intend to look solely to Nixon in the first instnace for payment, but rather intended to look to him as surety. It is true the court based its reasons for directing the verdict upon the fact of the book charges, but we are not concerned with the reasoning of the court. A judgment may be correct, although based on mistaken reasons. Upon the facts stated and taken as true, the court was right in directing a verdict, and the judgment must stand, although a wrong reason was given.
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Frauenthal, J.
This was an action instituted by appellants to recover damages for the breach of an alleged contract leasing to them certain lands in Yell County for the year 1910. In their complaint appellants alleged that the appellee, by verbal contract, had leased to them said land for a term of one year beginning January 1, 1910, for which they agreed to pay $7 per acre for the rent thereof, and that appellee had failed and refused to deliver the possession of said land to them on said January 1, 1910, or on any day thereafter, although requested and demanded so to do. They alleged that by reason of the breach of said contract they were damaged in the sum of $5,000, for which they asked judgment. The appellee denied that an unconditional contract for the lease of said land had been made, and also pleaded the statute of frauds in bar of the action upon the ground that the alleged contract of lease and improvement of the land rested in parol and was not to be performed within one year next after making same. Upon the-trial of the case, the jury returned a verdict in favor of the appellants, assessing their damages at $1. From the judgment rendered thereon, both parties have appealed to this court.
It appears from the testimony that the land in question had been rented to one Allen Brasher during the year of 1909, and that he was in possession thereof at the time the alleged lease contract was entered into between the appellants and appellee. There is a conflict in the testimony as to the terms of said alleged contract. On the part of appellants, the testimony tended to prove that in September, 1909, the parties entered into a parol contract whereby the appellee leased to appellants said land for a term beginning on January 1, 1910, and continuing for one year thereafter, and that appellants were to pay the sum of $7 per acre for the rent thereof. It •was also agreed that appellants should make certain improvements upon the land in event the appellee should desire them to do so, and that he would pay therefor a price which would be subsequently agreed upon. On the other hand, the testimony on the part of the appellee tended to prove that he leased said land to appellants only upon condition that he should obtain possession thereof from said Brasher; that on January 1, 1910, said Brasher refused to surrender possession of the land, and he thereupon instituted an action of unlawful detainer against him in order to obtain possession thereof, but that he was unsuccessful in that litigation. No special damages were alleged in the complaint, and none were proved by the appellants, and it was conceded by both parties that $7 per acre was the usual and customary price for the rent of the same character of land in the locality where the land in controversy was situated at the time the contract was entered into and the term was to begin. There was no testimony introduced or offered tending to show the rental value of this land during the year of 1910. The appellants offered to prove by the witness Brasher the following: “That he cultivated the land in controversy during the year 1910, and raised from said land 49 square bales of cotton and nine round bales, and sold all but three square bales all the way from 13 to 14% cents a pound, averaging a little above 14 cents; and produced about $12 per bale of seed; and that he paid the landlord $7 per acre rent for the land; and rented 24 acres of said land for money rent at $180, which he has collected; and, after paying said rent and cost of production and gathering of the crop, made a profit on said land of $2,211.50.” Objection was made to the introduction of this testimony, and said objection was by the court sustained.
It is urged by counsel for appellants that the judgment should be reversed because the court erred in its rulings relative to certain instructions and in its refusal to permit the introduction of the above testimony. The appellee in his cross appeal urges that the judgment should be reversed, in so far as it adjudged nominal damages and costs against him, because the alleged parol contract of lease was within the operation of the statute of frauds. It is contended by counsel for appellee that the alleged contract of lease, according to the testimony most favorable to appellants, was entire and indivisible; that a part of the consideration thereof consisted in the agreement of appellants to make certain improvements and to do certain work upon the land, and that this was not to be performed in one year from the making of the contract; that for this reason the parol contract fell within the statute of frauds, and no action could be maintained thereon. The contract was entered into in September, 1909, and while the term of the lease was to begin on January 1 following, and continue for one year thereafter, there was no definite time named for the performance of the promise for making improvements and doing the work on the land if that portion of the agreement was an indivisible part of the contract. A parol agreement to do some act or to perform some service which fixes no definite time for its performance does not fall within the statute of frauds where, in view of the subject-matter of the contract and the understanding relative thereto, it is capable of full performance within one year after the making thereof. In the case at bar, no definite time was agreed upon within which the improvements were to have been made or the work to have been done, and they might have been performed within one year after the making of such contract. We are of the opinion, therefore, that the alleged contract herein sued on, although not in writing, did not, under any view of the testimony, fall within the operation of the statute of frauds. Sullivan v. Winters, 91 Ark. 149; Higgins v. Gager, 65 Ark. 604. We do not think that the instruction given by the court, submitting to the jury the question as to whether or not the alleged contract was enforceable because within the statute of frauds, was prejudicial to the appellants, for the reason that The jury returned a verdict in their favor. The jury, therefore, found that a subsisting and legally enforceable contract did exist between the parties relative to the lease of said land and, therefore, was not required to be in writing. The verdict of the jury, as far as the rights of appellants are concerned, was therefore not affected by any instruction given by the court relative to the statute of frauds, and for this reason the appellants were not prejudiced by any such instruction, even if it was erroneous.
Counsel for appellants earnestly contend that the court erred in refusing to allow the introduction of the above testimony relative to the amount ©f profit that was made by the occupying tenant on said land during the year of 1910, and also in giving to the jury the following instruction: “Gentlemen of the jury, you are instructed that if you find for the plaintiffs you can only find nominal damages.” The question raised by this contention is, what is the measure of damages to which a lessee is entitled upon a breach of a contract of lease by the lessor in failing or refusing to give possession of the land? There is some conflict in the authorities as to the duties devolving upon the lessor to give possession of the demised premises to the lessee. In some courts it is held that when the lessor has given to the tenant the right of possession he has done all he is required to do as against third persons withholding pos session who do not claim under a prior or superior right derived from the lessor. These courts hold that, if the lessee is prevented from taking possession of the demised premises by a third person wrongfully holding same, it is solely his duty to oust such wrongdoer. We are of the opinion, however, that by virtue of a lease contract there is an implied covenant that the demised premises shall be open to entry to the lessee at the time fixed in the lease for the beginning of the term, and that if the lessee is prevented from obtaining possession by some one holding the premises then such covenant is violated, and the lessee is entitled to recover from the lessor the damages which may be sustained by him. This is the rule which has been adopted by this court. Rose v. Wynn, 42 Ark. 257.
The measure of damages for the breach of this implied covenant for possession is the difference between the rental value of the demised premises and the rental price named in the lease, together with such special damages as have necessarily resulted from such breach. The rule is thus stated in the case of Rose v. Wynn, supra: “In an action by a lessee against his lessor for damages for refusal or failure to deliver possession of the demised premises, the general rule for the measure of damages is the difference between the rent reserved and the value of the premises for the term; and if this value be not greater than the rent reserved, the lessee can in general recover only nominal damages, though the lessor without just cause refused to give possession. But if other damages have resulted as the direct and necessary or natural consequence of the lessor’s breach of contract it seems that they, also, are recoverable.” By “the value of the premises” used in the above opinion is meant, not the probable profits that might accrue to the lessee, but what the evidence shows would be a fair rental value of the demised premises for the term. In that case the court reversed a judgment granting damages to a lessee for a breach of a covenant for possession in a lease, and therein said: “In this case appellee did not prove that the rental value of the demised premises was greater than the rent which he contracted to pay. Nor did he prove any actual special damages within the above rule.” So in the case of Andrews v. Minter, 75 Ark. 589, this court held: “For breach of a contract of lease, the lessee is entitled to recover the difference between the price he agreed to pay and the rental value, with interest, together with any actual expenses incurred.” See also McElvaney v. Smith, 76 Ark. 468; Young v. Berman, 96 Ark. 78; Cohn v. Norton, 57 Conn. 480; Adair v. Bogle, 20 Ia. 238; Alexander v. Bishop, 59 Ia. 572; Sloan v. Hart (N. C.) 21 L. R. A. (N. S.) 239. The probable profits to a lessee from the cultivation of demised land is not the true measure of his damages resulting from the breach of a covenant for possession, and can not be considered in determining the amount of such damages. Smith v. Phillips (Ky.) 29 S. W. 358. It follows that the court did not err in refusing to permit the introduction of the above testimony relative to what were the probable profits which were made upon the land during 1910 by the occupying tenant. It was in effect conceded by the parties upon the trial of this case, as is shown by the record, that the usual and customary price for the rent of the land • in controversy for the term of the alleged lease was $7 per acre. This was the amount of the rent which was reserved in said alleged' contract of lease. The appellants did not allege, nor did they prove or offer to prove, any special damages sustained by them by reason of the alleged breach of the contract. They did not prove or attempt to prove that the rental value of the land was greater than the rent reserved in the contract. It follows, therefore, that in view of the testimony which was adduced upon the trial of this case, and also of that which was offered, the appellants were not entitled to any greater damages than a nominal sum, even if there was an* unconditional contract of lease made by the appellee to them of said land. Finding no prejudicial error in the trial of this case, the judgment must be affirmed.
Hart, J., not participating. | [
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Wood, J.,
(after stating the facts). The appellant contends that the language used in the deed to appellee railway company, “for railroad purposes only,” had the effect of limiting the use of all the lands mentioned in the deed to the purposes of an easement only; that the deeds conveyed an easement in the land, and that when the railway company ceased to use the entire tract conveyed or any part thereof for the purposes of its easement the appellant, being the owner of the land in fee, had the right to re-enter and take possession of the part that was not used as an easement.
In our construction of the deed it becomes unnecessary to determine whether or not its effect was to convey the fee-simple .title to the railway company. The deed, in our opinion, conveyed to the railway company the entire strip of land mentioned therein; and, so long as any part of the same was being used for railroad purposes, appellant could not enter and take possession of any part that might not be used for the easement or right-of-way. See Morrell v. Wabash, St. Louis & Pacific Ry. Co., 96 Mo. 174. The deed was entire; and, so long as the railway company whs using any portion of the strip of land conveyed for its right-of-way or easement, it had the right to the use and possession of all of it.
It will be noted that the clause in the deed is not “for right-of-way,” but “for railroad purposes.”
The uncontradicted evidence shows that the grants under which appellee Thompson and others occupied portions of the land in controversy were mere licensees. They were only tenants at will; they had no leases for any definite time. There is nothing in these licenses to show that the appellee railway company had abandoned any portion of its premises for railroad purposes. The witness testified that “under these licenses the parties simply held at our will. The licenses is revocable at sixty days’ notice, and that precaution is taken to avoid any contention that they might constitute an abandonment. Persons go on. there with the understanding that with sixty days’ notice they must move their improvements and get off, and for the further reason that no railroad company can determine its needs at any definite time in the future at any particular point.”
Conceding, without deciding, that the clause “for railroad purposes only” is in the .nature of'a condition subsequent giving the grantor the right to re-enter upon condition broken, we are of the opinion that the "testimony does not show such breach of the condition as to entitle appellant to re-enter or to have the relief sought in this case.
On the same day that the appellant executed his deed to the Kansas City, Fort Scott & Memphis Railway Company, he entered into an agreement whereby, in consideration of a pass over the company’s road, he undertook to sign court bonds for the company and also “to act as agent to watch and warn trespassers 'from encroaching on its right-of-way at Marked Tree.”
In 1903, according to appellant’s testimony, the appellee Thompson, erected a hardware and furniture store about fifty feet from the track of the railway company. Appellant personally notified Thompson of his claim; told him he had deeded the land to the railway company for railroad purposes only, and protested that appellee Thompson had no right to build on it. Thompson replied that he had a lease from the company, and was amply protected, and he kept on building on the right-of-way over appellant’s protest and objection until appellant had him enjoined. The agent of the appellee company, having its land matters in charge at Marked Tree, as early as the latter part of October, 1905,. went to Marked Tree and saw the appellant. The agent on this first visit had consider able conversation with the appellant. Appellant called his attention to the provisions in the deed, and out of that conversation grew the special clause that went into appellant’s licenses, which is as follows: “It is understood and agreed that in all instances where the title of the railway company is such that the property shall revert to the grantor in case of nonuse for railroad purposes this lease is made subject-thereto, and by reason of its acceptance by the licensee he shall forfeit no right nor shall his interest be in any wise prejudiced.”
Other licenses were being granted to various parties at that time. The proof shows that on October 18, 1905, licenses were granted to the appellee Thompson for the erection of five buildings, one on the main line and four on the Marked Tree spur. There had been many buildings erected on the land in controversy under licenses from the railway company. Various parties besides the appellee Thompson had erected structures. Some of the parties to whom licenses were granted testified that appellant objected to their building on the land, calling attention to the fact that he had conveyed the property to the railway company for railroad purposes only.
Parties had made known to the land agent of the railway company these objections. When the land agent went to Marked Tree in October, 1905, he spent the entire day going over the ground. Appellant went with him across the street to where he had some property, and where some other party had property that appellant wished to show him. Appellant was interested in the property that he showed him. The land agent talked with appellant generally. The agent stated that, while appellant called his attention to the provisions in the deed, he made no objection whatever at that time to the parties building on the right-of-way. Parties wishing licenses had informed the land agent that appellant was protesting, and the agent had gone to Marked Tree to look over the ground and see about it.
Witnesses on behalf of appellant testified that, while there had been buildings of different kinds and by various parties upon the land in controversy, it had been generally known that appellant had always objected. One of the witnesses stated that “Ritter” (appellant) had always refused permission to build or construct buildings on the railroad right-of-way, and that the common talk had been that, in order to put up a building on the railroad right-of-way, the parties would have to catch Mr. Ritter out of town.” This witness testified that “the bank,' the Miller building Dr. Taylor’s brick building, Thompson’s saloon, hardware store, pressing shop, restaruant, barber shop, and butcher shop were within one hundred feet of the center of the track, on the south side of the Marked Tree spur; that the Grossman brick, and servant’s house, and coal hous e are on the land in controversy; that all of these buildings, except the Miller building, had been erected within the last nine years, the last one being the Thompson & Powell lumber shed, being built about a year ago.”
He further testified that the “Fisher & Smith building, Marked Tree Gazette building, the Doctor Mitchum building were within 100 feet of the main line; also the Phoenix Hotel, the coal chute, handle factory, and the Marked Tree Lumber Company offices and fences were within fifty feet of the box factory spur.”
The appellant himself testified “that since the deed was executed to the company he had intended to impress every one of his rights and of his intention to enforce them, and of his objection to the erection of buildings on the right-of-way in violation of the provisions of his deed. He said that he believed that he had the right to restrain the execution of the leases all the time. At the time of the institution of the present suit appellee Thompson was threatening to construct a one-story frame building on the right-of-way which would increase appellant’s insurance rate, and so he brought the suit.” He said that “the reason for his making objections to the erection of buildings by appellee Thompson was that he (Thompson) was simply putting up fire traps which had a number of times canceled his insurance on the brick which appellant had erected, and was making the rate very high.”
One of the witnesses for the appellant testified that the buildings erected by Thompson on the right-of-way were of a character to increase the danger of a general conflagration in the town and would increase the insurance rates on appellant’s property. But this witness stated that the danger was no greater at the time of the institution of this suit than it was at the time the buildings were first constructed; and the witness added: “I don’t know why he didn’t prevent by lawful means, if he had the right to so do, the construction of these buildings at that time.”
The attorney for the appellee railway company stated that as early as 1902 appellant, as the agent of the railway company at Marked Tree to look after the matter of encroachments upon its right-of-way, assisted him in getting two parties off of the right-of-way in a certain place and in locating them in another. These parties were setting up some claim adverse to the railway company, and appellant assisted the attorney in disposing of the matter. The attorney testified that from then until November, 1909, when appellant wrote him with reference to Thompson, he had no intimation that anything was being done in connection with the right-of-way at Marked Tree displeasing to appellant. The attorney sent the letter of appellant to their land agent at St. Louis. This agent testified that he didn’t recall any protest from.appellant from 1902 to 1911, except the Thompson one.
The appellee, Thompson, testified that, with the exception of himself, he had never heard of appellant making any objection to any buildings on the right-of-way other than that of two other parties. He said that the reason that he didn’t refrain from erecting other buildings after 1904, when the appellant first objected, was that many other swere building, including appellant himself. His testimony was to the effect that appellant made no objection to the buildings on the right-of-way on the ground of insurance, and that the buildings which appellant himself had erected on the right-of-way had increased the rate of insurance.
The above testimony shows that on the very day appellant conveyed the land in question to the railway company.he accepted a position as their agent to “watch and warn trespassers from encroaching on its right-of-way at Marked Tree.” Appellant, of course, was aware, at the time he executed the deed containing the clause “for railroad purposes only,” of whatever rights that clause gave him. If appellant’s contention were correct, that the clause “for railroad purposes only” gave him the right to repossess himself of the- land when the appellee railway company granted licenses to other parties to occupy portions of the land granted, and to restrain the railway company from granting such licenses, then appellant had the right, at least as early as the year 1904, to prevent the railway company from granting to appellee Thompson a license to erect buildings on the land, as well as to prevent Thompson from consummating any such purpose. Notwithstanding this fact, appellant, during all these years, stood by and permitted appellee railway company not only to issue licenses to appellee Thompson but to others; permitted them to erect structures of various kinds on the premises, and not until the bringing of this suit November 16, 1909, did he take any steps towards availing himself of the right which he now contends the clause under consideration gave him. Appellant knew, during all these years, of the construction which the appellees were placing upon the deed which he had executed to the railway company; he knew that the railway company was claiming the right to grant these licenses, and that appellee Thompson was claiming the right to accept them.
Appellant, during all these years, was accepting similar licenses from the railway company, and was exercising the rights which these licenses granted him. We think his conduct, under the circumstances, shows clearly that he acquiesced in the construction which the appellees placed upon his deed, and that he is estopped from setting up the construction for which he now contends.
After appellant had granted the land mentioned in his deed to the railway company “for railroad purposes only,” he accepted many licenses from the railway company and erected and occupied buildings under those licenses, thus clearly recognizing the right of the railway company to grant licenses to him for the purpose indicated. But by his present contention he assumes the anomalous and rather inconsistent attitude of saying that, while the appellee railway company had the right under his deed to grant licenses to him, it has no right to grant precisely similar licenses to other persons.
When appellant first had knowledge that the appellee railway company was granting these licenses, and that the grantees were operating under them, necessarily spending considerable sums of money in making their improvements, it was the duty of appellant to have given notice, not only to the persons holding such grants from the railway company, but also to the railway company, that he intended to assert his rights if the parties so notified ignored such notice and proceeded to assert rights which they claimed to have under the licenses. It was the further duty of appellant, within a reasonable time, to have taken steps to enjoin them. This he did not do.
Appellant’s conduct, as disclosed by the facts above set forth, was well calculated to induce the appellees, especially the appellee railway company, to believe that appellant would not insist upon the right to repossess himself of the land or to prevent appellee railway company from using it in the manner indicated. If he ever had any such rights as he now claims under the clause “for railroad purposes only” contained in his deed, the clear preponderance of the evidence shows that by his conduct he has waived any right to assert them.
In Kampman v. Kampman, 98 Ark. 328, the court, speaking through the Chief Justice, said:
“Conditions which operate as a forfeiture of rights under a deed are not fávored in the law, and slight circumstances will often be seized upon to prevent such forfeitures. Any conduct on the part of the party having the right to declare a forfeiture which is calculated to induce the other party to believe that the forfeiture is not to be insisted upon will be treated as a waiver.” See also, Reichardt v. St. Louis & S. F. Ry. Co., 51 Ark. 491; Little Bock Granite Co. v. Shall, 59 Ark. 405; Bain v. Parker, 77 Ark. 168.
The decree is correct, and it is affirmed.
Mr. Justice Hart concurs on the ground of estoppel. | [
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McCulloch, C. J.
The plaintiff, C. T. Taft, owned a tract of land in Drew County, Arkansas, containing 280 acres, and on 'January 8, 1910, conveyed an undivided fourth thereof to John C. Haldiman, one of the defendants, in exchange for 24 shares, of the face value of $2,400, of the capital stock of the People’s Clothing & Shoe Company, a mercantile corporation of California, Missouri. He also paid said defendant the sum of $750 as consideration for said exchange.
On the same date he exchanged the other three-fourths interest in said land with one Reidy for other lands in the State of Missouri, paying Reidy the sum of $750 as a part of the consideration for the exchange, and for convenience he executed one deed to Haldiman and Reidy conveying said lands to them. At that time plaintiff resided in Drew County, Arkansas, and defendant Haldiman resided at California, Missouri. A short time thereafter Haldiman mortgaged his interest in the land to Fred Hert, to secure the payment of an antecedent indebtedness owing by Haldiman to Hert. Subsequently plaintiff instituted this action in the chancery court of Drew County against Haldiman and Hert to cancel his said conveyance to Haldiman and the mortgage from Haldiman to Hert, on the alleged ground that his deed was procured by fraudulent misrepresentations concerning the value of said capital stock of the Missouri corporation.
The defendants filed separate answers, each denying the allegations of fraud, and also denying that defendant Hert had any knowledge of fraud in the transaction between plaintiff and Haldiman.
The chancellor found in favor of the plaintiff on the allegations of fraud, and also found that the defendant Hert was not an innocent purchaser for value, and rendered a decree in plaintiff’s favor cancelling the deed to Haldiman and the mortgage to Hert.
It is earnestly insisted that the testimony is insufficient to sustain the charges of fraudulent misrepresentations concerning the value of the stock. After a careful examination of the testimony, we are of the opinion, however, that the finding of the chancellor was correct, and that it should not be disturbed-The law as to this branch of the case is too well settled for further discussion, and we merely refer to the recent case of Hunt v. Davis, 98 Ark. 44, for a full discussion of the law applicable to this branch of the case. The Missouri corporation went into bankruptcy about two months after the execution of the .conveyance, and the proof was absolutely conclusive that it was insolvent at that time, and must have been grossly insolvent at the time of plaintiff’s conveyance to Haldiman. The trade between the parties was made in Drew County, Arkansas, the plaintiff never having been to California, Missouri, and knowing nothing about the value of the stock except what was told him by Haldiman. He testified that Haldiman told him that the corporation owned a stock of merchandise worth $35,000, and that it owed about $5,000 the capital stock being $16,000. He states that Haldiman told him that the stock was worth $1.06 on the dollar of its face value. Another witness testified that Haldiman said that the stock was worth dollar for dollar to him. Haldiman admitted that he made .this last statement to plaintiff. Now, if he made the statement to plaintiff, even as qualified by himself and the other witness, he must be taken to have meant that it was worth par value, because, if it was worth that to him, that could only be reasonably understood to mean that that was its true value. If he made that representation, and knew, or ought to have known, that the stock was not worth that much, he was guilty of making a false representation, which, if relied on by the other party, became the inducement for the trade. There is evidence that he was treasurer of the corporation, and had actual knowledge of its financial condition. But, even if he was without actual knowledge on the subject, he occupied a position which was tantamount to holding himself out as having such knowledge, and it is unimportant whether he did possess the knowledge or not Under those circumstances, it was his duty to have informed himself before making any statement to a party with whom he dealt.
A short time before this trade was made, plaintiff’s brother moved to California, Missouri, and purchased some of the capital stock of the corporation. It is insisted that plaintiff relied upon his brother's knowledge, and not upon the alleged misrepresentations of Haldiman. We are of the opinion, however, that the plaintiff relied upon Haldiman’s statements, and that they were the inducing cause of the bargain.
It is further insisted by learned counsel that, as the deed was made to Haldiman and Reidy conveying all of plaintiff's interest in the property to them, a portion of the conveyance can not be rescinded. They invoke the rule that there can be no rescission of a portion of a contract, and insist that there can not be, in equity, a partial cancellation of a deed'for fraud alleged to have been perpetrated upon the grantor by one of the grantees. The evidence shows, however, that, while the deed was made to Haldiman and Reidy jointly, it represented separate bargains for separate and distinct considerations. Under those circumstances, we do not think that the question of partial rescission arises. The whole transaction, so far as it relates to the conveyance to Haldiman, is involved, and not the transaction with Reidy.
Finally, it is contended that the proof is insufficient to sustain the finding of the chancellor that Hert was not an innocent purchaser for value. ,
The evidence is undisputed that the mortgage to Hert was executed for the purpose of securing the payment of an antecedent indebtedness. Hert in his answer alleges that Haldiman executed a note for $1,500, the amount of the debt, and also this mortgage for the purpose of securing the same, and delivered them to him in payment of said debt. He also testified that Haldiman executed the note to him, and that he agreed to extend the time of payment in consideration of his giving security. The mortgage is exhibited with the pleadings, and recites the fact that it was given to secure the payment of a note for $1,500. The note is -agt exhibited, and it does not appear anywhere, either in the pleadings or in the testimony, that the note was in -the form of a negotiable instrument. This court held in Johnson v. Graves, 27 Ark. 560, that where a creditor takes a mortgage merely as security for antecedent indebtedness, without advancing any new consideration, he is not entitled to the protection accorded a bona fide purchaser for value as against prior liens or equities. In a long line of cases this court has held that one who takes negotiable paper before maturity, in payment of or as security for an antecedent debt, and without notice of any defect, receives it in due course of business, and is a holder for value and free from any equities of the maker or indorser. Tabor v. Merchants Nat. Bank, 48 Ark. 458; Hamiter v. Brown, 88 Ark. 97; Exchange Nat. Bank v. Coe, 94 Ark. 387; White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105. In those cases we recognized the conflict in the authorities on that question, but followed, for the sake of uniformity as much as for any other reason, the decisions of the Supreme Court of the United States on that question, particularly the case of Railroad Company v. National Bank, 102 U. S. 14, which was cited in several of our cases. It will be observed that the Federal cases base this doctrine entirely upon the fact that negotiable paper is controlled by the law merchant, and that, in order to give it such stability as the law contemplates, the protection should be extended to a holder who receives the paper either in payment of or as collateral security for an antecedent debt. Mr. Justice Harlan, in his opinion in the case just cited, quoted with approval a statement of Judge Story in the case of Swift v. Tyson, 16 Peters, 1, which was said to be obiter but which was subsequently adhered to as the law on that subject. That learned judge and textwriter said:
“And why, upon principle, should not a preexisting debt be deemed such a valuable consideration? It is for the benefit and convenience of the commercial world to give as wide an extent as practicable to the credit and circulation of negotiable paper, that it may pass, not only as security for new purchases and advances made upon the transfer thereof, but also in payment of and as security for preexisting debts. The creditor is thereby enabled to realize or to secure his debt, and thus may safely give a prolonged credit, or forbear from taking any legal steps to enforce his rights. The debtor, also, has the advantage of making his negotiable securities of equivalent value to cash. But establish the opposite conclusion, that negotiable paper can not be applied in payment of or as security for preexisting debts, without letting in all the equities between the original and antecedent parties, and the value and circulation of such securities must be essentially diminished, and the debtor driven to the embarrassment of making a sale thereof, often at a ruinous discount, to some third person, and then by circuity to apply the proceeds to the payment of his debts. What, indeed, upon such a doctrine would become of that large class of cases where new notes are given by the same or by other parties, by way of renewal or security to banks, in lieu of old securities discounted by them which have arrived at maturity? Probably more than one-half of all bank transactions in our country, as well as those of other countries, are of this nature. The doctrine would strike a fatal blow at all discounts of negotiable securities for preexisting debts.” See also note to Empire State Trust Co. v. Fisher, 3 Am. & Eng. Ann. Cas. 393, where the authorities are collected which fully sustain us in the conclusion we reach.
The reasoning upon which this rule is based can not be extended to paper not in the form of a negotiable instrument, for to do so would be to ignore the reasons upon which the rule is based and would put us in conflict with the early announcement by this court on that subject. Neither the evidence nor the pleadings in this case show that a negotiable instrument is involved. It being shown that defendant Hert accepted the mortgage as security for an antecedent debt, it devolved upon him to produce the instrument or to prove in some way that it was a negotiable instrument. Otherwise he has not clothed himself with the protection due an innocent purchaser for value.
Upon the whole case we are of the opinion that the chancellor’s decision was correct, and the decree is therefore aflirmed. | [
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Wood, J.,
(after stating the facts). In the absence of a showing to the contrary, it will be presumed that the decree of the court was' correct.
There is nothing in the record as abstracted by appellant to show that the grantors in the deed of trust waived their right to redeem under section 5420, Kirby’s Digest. Assuming that such right had not been waived, the decree of the court is correct. For, in the absence of such showing, the decree should be treated as granting to appellee redemption from the sale. The decree giving him such right was entered before the sale was confirmed.
It matters not in what form the application of appellee for redemption was couched, unless the grantors in the deed of trust had waived their right of redemption, appellee 'would be entitled to it, and the decree of the court granting such rights will not be reversed because of informalities in the petition of the applicant.
The decree of the court, for aught that appears to the contrary in the record, was tantamount to allowing appellee the right to redeem, and, so treated, it is correct, and it is unneces sary for us to consider the question of whether or not the sale should have been confirmed to appellant as urged in her brief.
The judgment is affirmed. | [
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McCulloch, C. J.
Appellant, Grayson-McLeod Lumber Company, owned large bodies of timber land in Clark and Pike counties, in the State of Arkansas, and on November 23,1909, entered into a written contract with appellees, whereby the latter were to cut the timber and convert same into railroad ties, piling and staves, and deliver same to appellant for certain stipulated prices. The contract (omitting caption) reads as follows:
“That the parties of the second part agree to cut all oak timber from the lands of the first party in Clark and Pike counties, and deliver on the track of the A. V. R. R. [Antoine Valley Railroad] as per instructions and orders given them as follows:
“All oak timber large enough to make 6x8 8 ft. ties, either red or white oak, to be made into standard 6x8 ties and delivered at the track at 26 cents each for white oak, and red oak 23 cents, No. 2’s 13 cents each.
“All white oak timber too large for 6x8 ties and not large enough for piling to be made into 7x9 8 ft. ties, and delivered at track for 32 cents each. No. 2, 7x9 ft. ties, 26 cents each.
“All white oak that will make piling up to 40 or 45 feet to be cut into piling, Missouri Pacific specifications, and delivered at track for 4^ cents per lineal foot.
“All oak too large for piling to be made into whisky barrel staves and delivered at track at $16.50 per thousand. Rejects at $7.00 per thousand.
“All white oak timber not large enough for staves and will make bolts to be cut into bolts and delivered at track for $4.00 per cord.
“For piling cut along the A. S. W. or G. & F. S., and delivered at a switch where they can be conveniently loaded 7 cents per lineal foot f.o.b.
“All white oak ties 7x9 8 ft. delivered at switch f.o.b. 46 cents each.
“All white oak ties 6x8 8 ft. delivered on right-of-way of either the A. S. W. R. R., (Arkansas Southwestern Railroad), or the G. & F. S. R. R. (Gurdon & Fort Smith Railroad) 36 cents each.
“The last three items, viz: the 7x9 8 ft. and' the 6x8 8 ft. and the piling are not to be cut from lands owned by GraysonMcLeod Lumber Company.
“The Grayson-McLeod Lumber Company reserves uie right to change any párt of this contract. All above to be paid for net cash after acceptance by the first party.”
Appellees proceeded to cut the timber, and continued until July 23,1910, when appellant served written notice on them to the effect that it claimed the right, under the stipulations of the contract, to terminate it, and had elected to do so. The notice was in the form of a letter addressed to appellees, and reads as follows:
“With reference to the contract placed with you on the 23d day of November last, with reference to getting out staves and piling, the directors of the consolidated concern have decided that we would not make any more ties, staves or piling from the lands in Clark County and Pike County for the time being; and, as our contract provides that we may terminate it any time, we will have to ask you to consider the contract null and void after August 1,1910. If at some later date we decide again to work ties, staves and piling, we will be glad to figure with you in the proposition.”
Appellees declined to cease work under the contract, and on August 5, 1910, appellant commenced this action to restrain them from cutting timber on the lands in question.
Appellant, in its complaint, sets forth the contract and claims the right to terminate it under the last clause, and, in an amendment to the complaint, it alleges that appellees had violated the contract in manufacturing cross-ties from timber on the land and selling same to other parties.
Appellees, in their answer, denied violating the contract, and also disputed the right of appellant to terminate it under the last clause thereof.
The chancery court, on hearing proof, entered a decree dismissing the complaint'for want of equity.
The principal contention of learned counsel for appellant is, that the last clause of the contract gives the right to terminate it. That clause reads as follows:
“The Grayson-McLeod Lumber Company reserves tne right to change any part of this contract.”
Now, the use of the word “change” does not include the right to abrogate the contract.. It means something else, that is, to alter or to make different. But if the effect contended for now was intended by the parties, different language, more appropriate to convey that meaning, would have been employed. It is shown that the contract was not prepared by one learned in the law, but was written by Mr. William Grayson, the president of appellant company, who was a good business man, and is presumed to have understood the ordinary terms applicable to his methods of business. It is inconceivable that, if a man of that kind intended to reserve the right to abrogate the contract, he would have- inserted the language which he used in this contract. The only fair construction to be placed on the contract is that it means what it says, that is, that the owner of the timber should have the right to change the contract,,but not to abrogate it. It is susceptible of that meaning without destroying the contract, but to adopt the interpretation insisted upon by appellant would be to destroy the contract in its inception, because, if that is what it meant, it had no binding force upon appellant at all. The interpretation which we place upon the language is consistent with other parts of the contract, which could be changed without abrogating the contract itself. The primary object of the agreement was that appellees should cut all the timber on the lands named for certain stipulated prices. The owner was given the right to direct how the timber should be cut, and the parties in the instrument itself undertook to specify how it should be cut and into what articles it should be manufactured, and the dimensions thereof. It was seen fit to insert the last clause so as to give the right to change the contract in those respects, but we can not agree that it gave the right to terminate the contract altogether.
We think that the chancellor’s interpretation of the contract was correct, and his decree should not be disturbed.
It is next contended that appellees violated the contract by cutting two lots of railroad ties and a lot of staves and disposing of them to other parties. One of the lots of ties was cut on the Arkansas Southwestern Railroad. E. T. Slack, one of the parties, explains this transaction by stating that, prior to the date of the contract with appellant, the latter had entered into a contract with one Lintz for the cutting of the timber on some of the land, and that, before the execution of the contract with appellees, Lintz authorized him (witness) to cut the timber, and he did so under the impression that there had been a renewal of the Lintz contract, and he thought he was cutting that particular timber under the Lintz contract, and not under the contract of appellees with appellant. This occurred a considerable length of time before appellant decided to terminate the contract.
The other transaction relates to a lot of ties cut on the Gurdon & Fort Smith and Arkansas Southwestern railroads, and sold by Mr. Slack to' one Gerner. This lot of ties is referred to as those cut by the Couches. Slack explains this by stating that he had a conversation with Mr. Grayson before his death in which the latter agreed for him to put the ties out -on the Gurdon & Fort Smith Railroad. He calls attention to the fact that under the contract those ties were not to be made from timber cut on appellant’s land, and said that he could at that time have bought ties cheaper than appellant was to pay for them; that he notified appellant’s manager, Mr. Burns, and, after ascertaining that appellant couldn’t handle ties on the Gurdon & Fort Smith Railroad or the Arkansas Southwestern Railroad, and having an opportunity to sell them to another party, he did so. The evidence does not warrant a finding that appellees, in either of the transactions referred to attempted to perpetrate a fraud upon appellant or to violate the contract in any respect. All that was done in those transactions was done openly and under a claim of right. Appellant, on discovering the mistake, did not claim the right to insist upon a forfeiture, but, on the contrary, suffered appellees to continue in performance of the contract, and later, when appellant saw fit to declare a forfeiture, or, rather, to terminate the contract, it did so under a claim of right to do so under the language of the contract itself, and not on account of any alleged violation thereof. Appellant was paid in full for the ties and lost nothing in the transaction. It was appellant’s duty, when it discovered the apparent breach of the contract, if it intended to insist upon a forfeiture, to do so at once. By permitting appellees to proceed with the performance of the contract, it waived the breach. It is very apparent, from the testimony and from the pleadings in the case, that the claim of a breach of the contract on the part of appellee is an afterthought, and was not asserted at the time appellant first claimed the right to terminate the contract.
There is no merit in appellant’s contention, and the chancellor was correct in dismissing the complaint.
Decree affirmed. | [
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J. SeaboeN Holt, Associate Justice.
A jury found Joe Hardin (appellant) guilty of second degree murder for killing Charles Brittain, but did not fix the penalty. Thereupon the court assessed his punishment as fifteen (15) years in tlie State Penitentiary. This appeal followed.
I.
For reversal appellant assigned sixteen alleged errors. Assignments 1, 2, 3, 4, 8 and Supplemental Assignments 2 and 4 cover the sufficiency of the evidence. We think, however, after reviewing the record that there was ample substantial testimony to support the jury’s verdict. The facts were to the following effect: Willie Pearl Walker (an eye witness) testified in substance that August 26, 1954, she asked appellant if he had any Avhiskey and he said he did not. Later that same day, about 7 or 8 p.m., she along with Isaac Penny, Virgie Reed, Charles Brittain and two others (not identified) went to Hardin’s home for whiskey. They found him there alone and remained for about an hour or two. Hardin produced some whiskey and they began drinking. During .this time Hardin went into another room and on his return announced that someone had stolen his gun, whereupon, she and the victim, Brittain, went with Hardin to search for the gun. When they could not find it, Hardin directed her to call Isaac Penny and when she did so Isaac ran. Hardin then closed the door and told them they were not going to get out. Hardin then went into a hack room, returned with a gun which he pointed at Brittain and said, “Your friend got out hut you ain’t going to get away.” Brittain said, “I haven’t got your gun.” Hardin then fired and Brittain fell in a chair in the middle of the room. Brittain got up in a few minutes, stumbled, started into another room when Hardin fired again and hit him in the hack. Before the last shot, Hardin struck Brittain on the side of the head with a whiskey jug, breaking the jug. When Hardin shot the second time Brittain fell.
Dr. C. H. Smith testified that the victim was brought to the emergency room of the hospital where he treated him for a gunshot wound in his back just left of the spine. “Q. Could you tell from the wound as to what type of instrument had made the wound? A. It appeared to be a shotgun. Q. What condition was he in at the time you examined him, or treated him? A. When I first saw him, he was conscious and rational, but he lapsed into unconsciousness in just a few minutes. Q. What time of the night did you last attend him? A. I imagine it was around 9 or 10. Q. Was he still living at that time? A. Pie was. Q. Was his condition caused by the wound Avhich you have just described? A. It was.”
His condition continued to ‘ ‘ deteriorate ’ ’ which was caused “from the hemorrhaging of the wound.” Brittain was so nearly dead that any attempt to do anything rather than try to improve his condition would have resulted in immediate death. He died that night.
Other witnesses tended to corroborate Willie Pearl Walker’s testimony and also the fact that Brittain exhibited no weapon and they saw none. We find no evidence that Brittain was armed. The jury was the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Herron v. State, 202 Ark. 927, 154 S. W. 2d 351. It is also the jury’s province to weigh the evidence on the issue of self-defense, relied upon by appellant, and accept what they believed to be true and reject any that they thought to be false. Higdon v. State, 213 Ark. 881, 213 S. W. 2d 621. There was no error in the trial court’s refusal to direct a verdict for appellant at the conclusion of the State’s case, and again refusing his request to direct a verdict at the conclusion of all the testimony. The rule is well established that when the evidence is sufficient, as here, to support a conviction a refusal to direct a not guilty verdict was not error. Graham and Seaman v. State, 197 Ark. 50, 121 S. W. 2d 892; Ruffin v. State, 207 Ark. 672, 182 S. W. 2d 673. As indicated we find ample substantial evidence that the victim’s death was caused by the gunshot wound inflicted on him by appellant.
II.
Appellant next contends (Assignments 5, 6 and 7) that the court erred in allowing the State’s counsel to interrogate him as to his activities in the liquor business. “Q. Does Joe Hardin sell whiskey there? A. No, he gave us some. By Mr. Edwardes: We object to that . . . By Mr. Mathis: He is claiming this man was shot in a defense of his home. I want to show that it was a place of business where he regularly sold whiskey.” We think there was no error. The court firmly admonished the jury not to consider the question propounded for any purpose. The question was answered in the negative. We think the court’s admonition to the jury removed any possible prejudices to appellant in the circumstances.
III.
Next appellant argues (Assignment 9 and Supplemental Assignment 6) that the court erred in instructing the jury that appellant assumed the burden of proof to sustain his plea of self-defense. On this point the trial court in conformity with § 41-2246, Ark. Stats. 1947 (C. & M. Dig., § 2342, and Pope’s Dig. § 2968) instructed the jury in this language: “The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless the proof on the part of the state is sufficiently manifest that the offense amounted only to manslaughter, or that the accused was justified or excused in committing homicide,” and “again, it is the duty of the court to admonish you that the defendant starts out in the beginning of the trial with the presumption of innocence in his favor. This is a presumption that begins with the trial of the case and continues throughout the trial, or until the evidence convinces you of his guilt beyond a reasonable doubt.”
This identical question was answered contrary to appellant’s contention in the case of Hogue v. State, 194 Ark. 1089, 110 S. W. 2d 11, wherein we said.
‘ ‘ The court gave an instruction conforming to § 2968, Pope’s Digest, which reads: ‘The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.’ It is argued that this instruction cast upon the defendant the burden of proving his innocence, inasmuch as he admitted the killing. Such, however, is not the effect of the instruction when read in connection with instruction No. 11, given by the court, reading as follows: ‘Under the law the defendant is presumed to ho innocent. This presumption is evidence in his behalf and protects him from a conviction at your hands until his guilt- is established to your satisfaction beyond a reasonable doubt. ’
“This assignment of error is disposed of by the opinion in the case of Tignor v. State, 76 Ark. 489, 89 S. W. 96. A headnote in that case reads as follows: ‘Where the jury are instructed, in a murder case, that the killing being proved, the burden of proving circumstances that justify or excuse the homicide devolves upon the accused, as provided by Kirby’s Digest, § 1765, they should be further instructed that on the whole case the guilt of the accused must be proved beyond a reasonable doubt. ’
“The judgment in that case was reversed because, after giving § 1765 of Kirby’s Digest (which appears as § 2968, Pope’s Digest) as an instruction, the court did not further charge the jury that on the whole case the guilt of the accused must be proved beyond a reasonable doubt. Here, however, the instruction numbered 11 copied above, does what the court there said should have been done.”
We find no error in the giving of the above instructions in the circumstances.
IV.
Appellant argues (Assignment 10 and Supplemental Assignments 3 and 5) that there was error committed by the court by calling the jury in after they had been out approximately two hours and inquiring: “The Court: Without telling the Court how you stand, do you know numerically about how you are divided. A. Yes. Q. Will you give me just that infoi'mation — how you are divided numerically? A. It is two to ten; that’s right, it’s two to ten. The Court: - Gentlemen, the Court would be very reluctant to keep you unless you think there is a possibility of reaching some agreement. At the same time, the Court would say to you that it is to the interest of the State of Arkansas and to the defendant for you to reach an agreement in this case, if at all possible, and of course without any individual juror waiving any conscientious conviction he has. I have another jury out, and I would like to ask you to bear with the Court another ten minutes and see if you can come to some agreement in this case. All right, you may retire, and if you are not in by the time the other jury comes in, I will check with you. ’ ’
It further appears that the jury at 5:20 p.m. returned into open court and the record reflects: ‘ ‘ By the Court: Gentlemen, have you made any progress since you last reported! Member of the Jury: Yes, sir, your Honor, we have made a little progress. The Court: That is fine; would you like to try to finish up this afternoon, or would you like to recess and resume deliberations at 9:00 o ’clock in the morning ? Member: Let me a.sk you this; it has been put to me by some of the jurors. If.we can agree on the charge, is it permissible for the Court to set the sentence! The Court: That is correct. However, that applies only to some degree less than first degree. The court can set the punishment on any degree less than first degree. Now, does that answer the question? Member: That answers the question.”
We find no error in the court’s action in this connection. What Ave said in Jackson v. State, 94 Ark. 169, 126 S. W. 843, where a similar instruction or admonition was given to the jury, applies with equal force here. “It Avill be obseiwed that the court did not express any opinion as to the Aveight of the evidence, nor change in any manner the instructions already given; nor did the court urge the jurors to yield their individual convictions as to the result of the case. The statement amounted to no more than an admonition to the jury as to their duty to return a verdict, and this Avas guarded by the concluding remark that nothing that Avas said should influence the verdict. We find no prejudice in the remarks. Johnson v. State, 60 Ark. 45.” So here the court did not even suggest, much less instruct the jurors to yield their individual convictions in reaching their verdict, but, in effect, did no more than admonish them to do their duty.
Appellant’s further contention that the court erred in refusing to allow him time for additional argument after the above instruction or admonition to the jury, we hold to he without merit. Here the court’s admonition was not, in effect, a new instruction on some new issue, such as would entitle appellant to reargue the case, what he did in the circumstances was within the sound discretion of the court, and we find no abuse. “The subjects and range, as well as the length, of the argument of counsel, must necessarily he left to the sound discretion of a presiding judge. And, unless grossly abused to the prejudice of a party, is- not the subject of review here.” Reynolds v. State, 220 Ark. 188, 246 S. W. 2d 724.
Y.
Finally, appellant stoutly insists that the trial court erred in limiting the time to argue this murder case to twenty minutes on each side over his objections and exceptions. An answer to this contention is that this assignment of alleged error was not preserved or brought forward in appellant’s motion for a new trial and may not now be considered by us. In the very recent case of Watkins, Broomfield and Matlock v. State, 222 Ark. 444, 261 S. W. 2d 274, we reaffirmed this rule in this language': ' “Under bur long established rule, an error not preserved in the motion for a new trial cannot be considered by us on appeal, (. . . State v. Neil, 189 Ark. 324, 71 S.W. 2d 700; Suit v. State, 212 Ark. 584, 207 S. W. 2d 315).”
Finding no error, the judgment is affirmed. | [
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Lee Seamster, Chief Justice.
This is an appeal by the appellants and a cross-appeal by the appellees from a decree of the Pulaski Chancery Court, First Division. The appellants, Robert C. and Virginia Sellers, are a minister and his wife who formerly ministered to appellee church. The appellees are the official board members of the Central Assembly of God, a church and religious society located at 20th and Broadway Streets in the City of Little Rock, Arkansas.
The appellees instituted this action against appellants seeking to have a resulting trust established on the grounds that Sellers, as a regularly ordained minister of the Assemblies of God and acting in his official capacity as pastor for his congregation, had acquired title to cer tain property in his own name instead of procuring title to the property in the name of the church; that a portion of the payment for said property was made possible by using contributions made by members of the church; that thereafter Sellers sold the property for a profit and bought other property with the proceeds so that a church might he erected upon the latter property; that Sellers acquired title to the property in his own name whereby, appellees claim ownership and title through a resulting trust. The appellants filed an answer claiming that they owned the property outright and the church did not have any interest in the property at any time. The appellants further contended that appellees were indebted to them for certain sums expended for the benefit of the appellees and not repaid. Many suits for liens and materials, both secured and unsecured, were consolidated for trial.
Upon trial of the issues, the trial court found, among other things, that the property both real and personal located at 20th and Broadway Streets in Little Bock, Arkansas, belonged to appellee church and not to appellants. The church’s interest in the real property was held to be subject to a mortgage. The court vested title to all personal property and furnishings in the church. The title to the real estate was subject to certain materialman’s liens and mortgage, aggregating more than $21,000. The decree provided that if the mortgage and liens were not paid within 45 days, the receiver was ordered to sell the property. Thereafter, the receiver held the sale and the appellees purchased the property on a submitted bid of $60,000. In addition, the trial court awarded appellees judgment against appellants in the sum of $48.06. This appeal and cross-appeal follow.
For reversal, the appellants rely on the following points: (1) A trust did not arise under the law and under the undisputed proof in this cause; (2) appellees are estopped to assert a trust; (3) even under the trial court’s theory of the case, the trial court should have left the title to the property at 20th and Broadway in Sellers and entered judgment against appellees in the sum of $8,648.16; (4) the trial court adopted the wrong-theory of the case, that of a resulting trust. If the appellees had any interest at all, it should have been under an equitable or “investment lien” theory as appellees termed it, not that of a resulting trust; and (5) appellees had no legal authority or capacity to maintain this suit.
The evidence reveals that in the early part of 1944, the appellants purchased a parcel of ground at 9th and Louisiana Streets, described as Lots 10, 11 and 12, in Block 89, Little Bock, Arkansas, as a suitable location for a church. The appellants agreed to pay $12,000 for said property, $2,500 in cash, the balance in monthly installments of $100 each. Title to the property was procured in the name of appellant Sellers and his wife. Sellers at that time was employed as the pastor of the First Assembly of God, a church located at 14th and Peyton Streets in Little Bock. Shortly thereafter, the appellant Sellers organized a Central Assembly of God Church; said church occupied the property at 9th and Louisiana Streets and Sellers was its pastor. At first, meetings of the church were held in an apartment house located on said property. Later a cellar was excavated on one of the lots, and a one-story terracotta building was erected over same in which meetings of the church were held for nine years.
On February 5, 1953, the appellants sold the property located at 9th and Louisiana Streets to Arkansas Power and Light Company for a sum of $105,000. Since the church was located upon the property, the appellant, Sellers, had several members of the board sign a disclaimer to the effect that title to the property was in Sellers and the church had no interest therein. This disclaimer was signed by the board upon the condition that Sellers would utilize the net proceeds from the sale of the property at 9th and Louisiana Streets to purchase a new site at 20th and Broadway Streets and build a new church thereon. The church congregation approved this action.
Shortly thereafter, Sellers purchased this site at 20th and Broadway for a total sum of $40,000, of which $23,000 was paid in cash and a mortgage assumed for the balance, and began construction on the new church. Sellers made a contract with one Graham Harp to furnish the material and supervise the building of a church structure. This contract was approved by a meeting of the congregation. Harp proceeded with the construction of the church until the funds became exhausted. At the time of the trial, there were outstanding liens, including the mortgage, in excess of $21,000. Unsecured debts amounted to more than $35,000. Sellers has resigned as pastor of the church and the appellees, as the official board of the Central Assembly of God Church of Little Bock, brought this suit against Sellers and his wife to divest them from title to the property.
Section 6 of the Constitution and by-laws of the church provide the following:
“Section 6. Property. 1. The title to all local Church property shall be vested in the local Church body with the responsibility and benefits thereunto. 2. All property shall be directed and controlled through the Deacon Board or duly elected Board of Trustees and their successors in office, such property being held in trust by such Board and subject to the wishes of the Church body in all procedure affecting property interest. 3. All such property shall be deeded so as to make it safe for an Assembly of God Church organization in times of a crisis or division, and to prevent its being diverted by any portion of the Church body to other Church interests or organizations. In event of an affiliation with such interest, or should it for any reason fail to function as an Assembly of God Church, all property rights are to come under supervision and into the hands of the Executive Presbytery of the Arkansas District Council of the Assemblies of God with headquarters now at Hot Springs, Arkansas, until an Assembly of God Church can properly function or the property be disposed of by said Board and the proceeds be used to promote the Assembly of God Church interest elsewhere.”
The by-laws also provide:
“The General Council approves the holding of title to all church buildings, school or other institutions that are supported by funds solicited for the work of God through properly constituted corporations. It disapproves the holding title to such properties by the ministers of the Assemblies of God through private ownership, corporation of sole, closed corporation or any other type of ownership where initiative of action of final authority is not vested in a corporation or set in order by the District Council, title should be vested in properly qualified trustees.”
The evidence shows that the appellees are the duly elected and qualified trustees of the Central Assembly of God Church and were authorized under the rules of the church to maintain this suit. The Chancellor based his decree upon the finding that a resulting trust had been established by the evidence. We cannot say that the court’s decree was against the preponderance of the evidence.
On cross-appeal, the evidence shows that the appellee church had no interest in appellants’ property located on 5010 Midland Road in Little Rock, Arkansas. The ease is affirmed on cross-appeal.
Affirmed on appeal and on cross-appeal. | [
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Minor W. Millwee, Associate Justice.
The issue here is the constitutionality of Act 160 of 1955 insofar as it purports to invest municipal courts with jurisdiction of the subject matter in matters of contract where the amount in controversy is in excess of $300, excluding interest.
Appellant filed suit against appellee in the Municipal Court of Benton, Arkansas, for $330.00 plus interest allegedly due on a promissory note executed by appellee. The motion of appellee to dismiss for lack of jurisdiction was overruled by the municipal court. Upon appellee’s failure to plead further, judgment was entered in favor of appellant for $415.00 and costs, as prayed in the complaint. On appeal to circuit court the motion of appellee to dismiss was sustained on the ground that municipal court had no jurisdiction in matters of contract where the amount in controversy exceeded the sum of $300.00, ex- elusive of interest, and that the circuit court acquired no jurisdiction on appeal.
The correctness of the circuit court’s action in sustaining the motion to dismiss depends upon whether the Legislature had the power and authority to enact that part of Act 160 of 1955 which reads:
“Section 1. That Section 22-709 of Arkansas Statutes (1947) be (the same is hereby) amended to read as follows:
‘ ‘ The Municipal Courts shall have original .jurisdiction co-extensive with the County wherein the said Court is situated over the following matters: . . .
“Exclusive of Justices of the Peace and concurrent with the Circuit Court in matters of contract where the amount in controversy does not exceed the sum of Five Hundred Dollars ($500.00), excluding interest, but exceeds Three Hundred Dollars excluding interest; . . .”
Ark. Stats., § 22-709, supra, provided that the jurisdiction of municipal courts should be concurrent with justices of the peace and with the circuit court in matters of contract where the amount in controversy does not exceed the sum of $300.00 exclusive of interest. This section was based upon and in harmony with the several provisions of the Constitution which deal with the jurisdiction of municipal and justice of the peace courts. Sections 1 and 43 of Art. 7 of the Constitution refer to municipal courts and read:
“ § 1. The judicial power of the State shall be vested in one Supreme Court, in circuit courts, in county and probate courts, and in justices of the peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in municipal corporation courts, courts of common pleas, where established, and, when deemed expedient, may establish separate courts of chancery. ’ ’
“ § 43. Corporation courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, and the General Assembly may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary, with or without indictment, as may be provided by law, and, until the General Assembly shall otherwise provide, they shall have the jurisdiction now provided by law. ’ ’
By Sec. 40 of Art. 7, justices of the peace courts are vested with jurisdiction concurrent with circuit courts, “in matters of contract where the amount in controversy does not exceed the sum of three hundred dollars, exclusive of interest . . .”
A municipal court, like a justice of the peace court, is a court of limited and restricted jurisdiction. Bynum v. Patty, 207 Ark. 1084, 184 S. W. 2d 254. In construing the foregoing sections of the Constitution in State ex rel. Moose v. Woodruff, 120 Ark. 406, 179 S. W. 813, this court held that while the language of Art. 7, Sec. 43, was not meant to confine the jurisdiction of municipal courts to such jurisdiction as might always be exercised by justices of the peace, “it was meant as authority for the Legislature to confer such jurisdiction upon municipal courts as might under the Constitution be conferred upon justices of the peace.”
Since the jurisdiction of justices of the peace in matters of contract is expressly limited by Art. 7, Sec. 40, to cases where the amount in controversy does not exceed $300.00 exclusive of interest, the Legislature was powerless to confer jurisdiction upon municipal courts in excess of said jurisdictional limit. This was the effect of our holding in Lingo v. Myers, 211 Ark. 638, 201 S. W. 2d 745, where a legislative act purporting to vest jurisdiction in municipal and justice of the peace courts to determine actions of unlawful detainer was held void, and we said: “Under the plain language of the. Constitution a justice of the peace ‘ shall not have jurisdiction where a lien on land or title or possession thereto is involved’; and the Constitution authorized the creation of municipal courts with only ‘jurisdiction concurrent with justices of the peace in civil . . . matters . . .’ ” See also, Magnet Cove Barium Corporation v. Watt, 215 Ark. 170, 219 S. W. 2d 761, where we held a municipal court judgment for damages to personal property void where the amount sought was in excess of the limits prescribed by Art. 7, Sec. 40, even though the amount of recovery was within said limits.
It follows that Act 160 of 1955 is unconstitutional and void insofar as it purports to invest municipal courts with jurisdiction to hear and determine matters of contract where the amount in controversy exceeds the sum of $300.00 exclusive of interest. The judgment of the circuit court sustaining the motion to dismiss is accordingly affirmed. | [
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George Rose Smith, J.
This is a suit by the appellees to quiet their title to a strip of land lying along the boundary line between their property and that of the appellant. The chancellor granted the relief sought. It is now contended by the appellant that since the disputed strip lies on the appellant’s side of an existing fence the plaintiffs were not in possession when the suit was filed and were therefore not entitled to have their title quieted in equity.
The objection now urged was not made below until after the trial, being mentioned for the first time in the appellant’s designation of the record for appeal. The plaintiffs ’ lack of possession does not involve a complete absence of judicial power over the subject matter, as would be true if a chancery court attempted to try a criminal case or to probate a will. Instead, the present objection goes merely to the adequacy of the remedy at law and is waived if not timelily interposed. Love v. Bryson, 57 Ark. 589, 22 S. W. 341; Reynolds v. Balding, 183 Ark. 397, 36 S. W. 2d 402. Here the objection is clearly too late.
Affirmed. | [
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J. Seaborn Holt, Associate Justice.
Appellant, Howell, sued Appellee, Simon, and tbe Arkansas Power and Light Company for substantial damages for practicing an alleged fraud on Appellant. Appellee, Company, filed a separate demurrer alleging that tbe complaint did not state facts sufficient to constitute an action against it. Tbe trial court sustained tbis demurrer, Howell refused to plead further and elected to stand on bis complaint. Whereupon tbe court dismissed bis complaint and tbis appeal followed.
Tbe case is still pending as to Appellee, Simon. In testing a complaint on demurrer we must assume that all allegations that are well pleaded, are true. Also our rule is well established that pleadings are to be liberally construed and every reasonable intendment is to be indulged on behalf of the pleader in determining whether a cause of action is stated. Rice v. King, 214 Ark. 813, 218 S. W. 2d 91; Story v. Cheatham, 217 Ark. 193, 229 S. W. 2d 121.
Omitting formal parts material allegations in the complaint were in effect that Howell is a licensed real estate broker in Pulaski County. “In February, 1954, the Real Estate Board cancelled his (Howell’s) license, for the reason that plaintiff had split a real estate commission with the defendant, Simon, in connection Avith the transfer of a block of ground at 9th and Louisiana Streets in Little Rock, Arkansas, to the defendant, Arkansas Power and Light Company.
“In November, 1952, the defendant, Simon, called the plaintiff (Howell) to his office in the Arcade Building, in the City of Little Rock, and held himself out to the plaintiff as a real estate broker, and as a spokesman, with authority, for the defendant, Arkansas Power and Light Company, and advised the plaintiff that they, by Avorking together, could bring about the purchase by the defendant, Arkansas Power and Light Company, of the above described property; that the Arkansas Power and Light Company was interested in the purchasing of said block of ground; that they Avould buy said block of ground, if the said defendant, Simon, and this plaintiff could arrange for the transfer of good title from each of the individual owners of the various subdivisions of said block of property; that at the time, the plaintiff had listed Avith him as a real estate broker, for sale a certain portion of said block of ground; that to verify the said statements of the defendant, Simon, to the plaintiff, the defendant, Simon, took the plaintiff to one of the officials of the defendant, Arkansas Power and Light Company, at his office in Little Rock, Mr. C. Hamilton Moses, and said statements of the defendant, Simon, were, in the presence of the defendant, Simon, and Mr. Moses, and the plaintiff, then and there verified by Mr. Moses, as an official authorized to speak for the defendant, Arkansas Power and Light Company; that pursuant to the said statements of the defendant, Simon, to the plaintiff, and the verification thereof by Mr. Moses . . . The defendant, Simon, and the plaintiff acquired several written contracts in their names, with the various property owners within the block for the sale of their property at certain prices; that all transactions in connection with the acquiring of the block of ground and the subdivisions thereof for the Power Company, were made with the defendant, Simon, and this plaintiff, jointly; . . . was at all times known to the officials of the Arkansas Power and Light Company, and approved by them . . .
“On or about February 5, 1953, by the procedure followed, as hereinabove set forth, the defendant, Arkansas Power and Light Company, acquired title to said block of ground. At that time the defendant, Simon, and the plaintiff were paid a real estate commission fee by the property owners, who conveyed to the defendant, Arkansas Power and Light Company, the sum of approximately $12,500 as brokerage fees, under the real estate brokerage listing contracts made by and between the said property owners and the defendant, Simon, and this plaintiff. The plaintiff and the defendant, Simon, split brokerage fees, dividing approximately on a fifty-fifty basis ... It was because of the fact that this plaintiff consented to the defendant, Simon, receiving said money that plaintiff’s real estate license was can-celled, for the reason that it was discovered thereafter that the defendant, Simon, was not a licensed real estate broker, and thereafter not legally entitled to receive said monies as a real estate brokerage fee, and thereby making the plaintiff’s act in consenting thereto an illegal one.
The plaintiff did not know the defendant, Simon, ... was not a licensed real estate broker until a considerable length of time after the said real estate commissions had been collected, and the money therefrom distributed and divided, as hereinabove set forth, between this plaintiff and the defendant, Simon.
“The plaintiff alleges that the defendant, Simon, practiced fraud on this plaintiff when he held himself out to this plaintiff to be a licensed real estate broker at the time of their first meeting, as hereinabove set forth, and at all times during their associations, as herein alleged, in connection with the herein described real estate operations and transactions. The defendant, Simon, at all times mentioned in this complaint, fraudulently held himself out to be a licensed real estate broker to this plaintiff. The defendant, Simon, was never, at any time, a licensed real estate broker. At all times mentioned in this complaint, and at all times the defendant, Simon, practiced and continued to practice such fraud on this plaintiff, as alleged, he, the defendant, Simon, was acting as an agent for the defendant, Arkansas Power and Light Company. . . . The fraud therefore practiced on this plaintiff, as herein alleged, because of the agency relationship between the defendant, Simon, and the defendant, Arkansas Power and Light Company, as herein set forth, is therefore, and by reason thereof the joint and concurring fraud of both the defendant, Simon, and the defendant, Arkansas Power and Light Company, for which the plaintiff herein is entitled to recover from both of the defendants herein.”
We hold that the trial court properly sustained appellee’s demurrer. Giving every reasonable intendment to the pleader’s allegations in his complaint, we hold that he has failed to allege any facts that would justify an inference that Simon was the agent of the power company with authority to bind it by a misrepresentation to the effect that he, Simon, was a licensed real estate broker. While it is alleged that Simon was acting as a real estate broker it is also alleged that $12,500 in commissions was paid by the property owners (not the power company) to appellant and Simon (one-half to each) “under the real estate brokerage listing contracts made by and between the said property owners and the defendant, Simon, and this plaintiff (Howell).” This statement negatives the existence of a general agency of Simon for the power company and places the burden on the pleader to allege facts'— not conclusions, — sufficient to show that Simon was such an agent that would bind the power company. As indicated, the only allegations of fact are that Simon was acting as a broker to be paid by the property owners, that “he was acting in the scope of his authority given him by the company, for him to try and bring about the transfer of said block of ground from the owners ... to the Arkansas Power and Light Company, and his said delegated and authorized mission was accomplished as herein alleged.” The principles of law in J. I. Porter Lumber Company v. Hill, 72 Ark. 62, 77 S. W. 905, apply here. We there said: [Headnote 1] “In trespass for cutting timber, an answer to the effect that plaintiff was estopped to recover because his agent stood by and failed to object to the cutting and conversion of the timber is insufficient in failing to allege that such agent had authority to act in the matter.” In holding the answer demurrable this court said in J. I. Porter Lumber Co. v. Hill, 72 Ark. 62, 64, “It is alleged in the answer that one Atwood was an agent of plaintiff, but the answer does not show what kind of an agent he was, nor what his powers were. The mere failure of an agent employed to pay tases and prevent trespassing upon land to perform his duty could not affect the rights of plaintiff in this action, for an agent with such limited powers has no authority to give the timber of his principal away; and if he could not do so directly by permission or agreement, he certainly could not do so indirectly by acts constituting an estoppel.”
The allegation that Simon was acting in the scope of his employment is a conclusion of law, only, and must fall because of lack of factual allegations to support it. It was incumbent on the pleader to allege specifically (which he did not do) that Simon had been authorized by the power company to make the misrepresentation about his license. The judgment is affirmed.
Justices McFaddin and Millwee dissent. | [
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Minor W. Millwee, Justice.
In 1951 the E. V. Bird Construction Company, hereinafter called “Bird,” entered into a contract with the University of Arkansas for the construction of the Arkansas Law School Building at the university. On October 4, 1951, Bird as principal and Maryland Casualty Company, hereinafter called “Maryland,” as surety executed the standard “Statutory Performance Bond” whereby they became obligated to pay all indebtedness for labor and materials furnished in the construction or repair of said building.
Shortly after execution of the bond, Maryland ascertained that Bird’s financial condition was such that Maryland would be unable to reinsure part of its obligation under the bond as it desired to do. The manager of Maryland’s Arkansas office in Little Rock directed W. R. McNair, President of Cravens and Company, the local agent of Maryland at Fayetteville, Arkansas, to endeavor to have Bird increase its capital structure in the approximate sum of $20,000. McNair communicated the request to Floid Bird, son of Mrs. E. Y. Bird, and one of Bird’s managers at the time. There were some negotiations with Mrs. Bird relative to procurement of additional capital by the assignment of certain life insurance annuities by her, but this was not done. After an unsuccessful attempt to secure additional capital from another uncle, Floid Bird sought the assistance of the appellant, L. E. Johnson. Appellant was shown some of the letters from Maryland’s Little Rock manager to McNair which the latter had furnished to Floid Bird. These letters emphasized the necessity of Bird securing additional operating capital and suggested that the furnishers of same execute a “Subordinate Loan Contract” in which Maryland’s priority over all other claimants in the event of a default under the construction contract would be recognized.
On November 6, 1951, appellant advanced $5,000 to Bird and the latter executed its demand note to appellant for the advancement. The next day, November 7, 1951, appellant wrote Maryland at Little Rock as follows:
“About twenty-five years ago E. Y. Bird let me have money to get my start. Of course this was repaid years ago, but I will always feel grateful for his help, therefore, I loaned his two sons, Floyd and Larry, $5,000.00 on their note and stand ready to back them to a limit of $20,000.00.”
Sometime later appellant had a telephone conversation with the manager of Maryland’s Little Rock office in which the latter suggested the execution of some kind of agreement by appellant that he would furnish the balance of the money to Bird and also a financial statement.
On November 28, 1951, appellant entered into a written “Investment Agreement” with Bird in which he agreed to advance a total of $20,000 from time to time, including the $5,000 already advanced, to be used by Bird for payment of labor or materials used in the construction project and for which Bird should execute promissory notes payable to appellant upon completion of the construction contract. Appellant advanced to Bird the further sums of $10,000 on August 15, 1952 and $5,000 on November 3, 1952, pursuant to this agreement. Proper notes were executed by Bird to appellant and the monies so advanced were used by Bird in the payment of labor and material accounts. On August 18,1952, Bird advised the University of Arkansas by letter that it desired that any money held by the university as retainage upon completion of the building be paid jointly to Bird and appellant. This letter was duly approved by the university on August 19, 1952, without the knowledge or approval of Maryland.
Bird defaulted in the performance of its contract which was taken over by Maryland. On July 12, 1953, the University of Arkansas paid retainage to Maryland in the sum of $34,073.32 which was used in payment of labor and material bills incurred in construction of the building. Maryland also paid additional sums in excess of $20,000 to complete the construction according to contract. In making the three loans to Bird the appellant did not execute the “Subordinate Loan Contract” suggested by Maryland’s agent. The laborers and material-men made no assignment of their respective liens. There was no express agreement between Maryland and appellant relative to such liens nor was there any agreement between them that appellant would be protected under the surety bond or have a superior lien on the retainage.
Appellant brought this action against Bird and Maryland to recover the $20,000 advanced to Bird under the investment agreement. In the complaint it was al leged that appellant and Maryland made an agreement to the effect that if appellant would make the $20,000 available to Bird then Maryland would include within the provisions of the surety bond any loss that appellant might incur; that Maryland consented to and ratified Bird’s assignment of the retainage under the construction contract to appellant and agreed that he would have a lien on same for the payment of his advances to Bird; and that Maryland had been unjustly enriched and should be estopped to deny that appellant’s claim was within the provisions of the surety bond. In an amendment to the complaint appellant asserted that by reason of his advancement of the $20,000 with Maryland’s knowledge that it was to be used to pay labor and material bills, appellant was thereby .subrogated to the rights of the laborers and materialmen to the retainage held by the university and paid over to Maryland. Maryland answered with a general denial and affirmatively pleaded that the agreement between appellant and Bird was not binding on Maryland, and that any agreement between appellant and Maryland was without consideration and barred by the Statute of Frauds.
There was a jury trial of the cause as between appellant and Maryland. At the conclusion of the testimony offered by appellant as outlined above, the trial court sustained Maryland’s motion for a directed verdict in its favor. This appeal is from the judgment rendered upon said directed verdict. Thus the question is whether the evidence, when given its strongest probative force in favor of appellant, is legally sufficient to support a jury finding of Maryland’s liability to appellant for the $20,000 advanced to Bird.
The performance bond involved in the instant case is the ordinary statutory bond which obligates the surety only to pay all indebtedness for labor and materials furnished in the construction or repair of the building. In 9 Am. Jur., Building and Construction Contracts, 1954 Pocket Supplement, § 92.1, the author states:
“The well established general rule is that a claim for money loaned or advanced to a building or construction contractor is not within the coverage of the ordinary form of contractor’s bond conditioned for the performance of the contract and the payment of all claims for labor and material, even though the borrowed money has been wholly applied to the payment of the cost of labor and material actually going into the construction project. Generally, the recovery of such money loaned or advanced is sought on the theory that inasmuch as the money loaned to the contractor had been used to pay for labor or material going into the project, the lender of the money was entitled to be considered as a furnisher of labor and material, and therefore protected by the bond. However, the courts almost uniformly hold to the view that a lender of money to the contractor may not recover the amount thereof from the contractor’s surety as a claim for material or labor furnished to the contractor within the conditions of the ordinary form of contractor’s bonds. ’ ’
See, also, annotations fully supporting this text statement in 127 A. L. R. 974 and 164 A. L. R. 782. Among the numerous cases cited by the annotators in support of the rule are our own cases of Norton v. Maryland Casualty Co., 182 Ark. 609, 32 S. W. 2d 172, and Ayres and Graves v. Ellis, 185 Ark. 818, 49 S. W. 2d 1056. In following this rule in the Norton case we held that a surety company, which executed a bond to pay all of the contractor’s bills for labor and materials used in the construction of a road, is not liable for money borrowed by the contractor even though the money was used to meet the contractor’s payrolls.
Although appellant alleged in his complaint that he and Maryland made an agreement giving him priority over the latter in the retainage paid over by the university, it is now frankly admitted that no express agreement to that effect was proved. In his testimony appellant repeatedly denied that he had any agreement with Maryland. He also testified that the only agreement he had was with Bird and that when he told Maryland’s agent of Bird’s assignment of the retainage to him the latter objected to it. There is also an absence of proof that any agent of Maryland ever made any assurance to appellant that his claim to the retainage would be superior to that of Maryland. On the contrary, it is admitted that Maryland’s agent requested that Bird secure from any lender his acknowledgment of the priority of Maryland’s claim thereto.
However, appellant insists that the testimony here is such that a jury would be warranted in finding that Maryland so influenced, encouraged and induced appellant to make the $20,000 advances as to entitle him to be subrogated to the rights of laborers and materialmen, or the rights of Maryland, in and to the retainage, either under the doctrine of conventional subrogation or so-called legal or equitable subrogation. In support of this contention appellant relies on the case of Western Casualty and S. Co. v. Meyer, 301 Ky. 487, 192 S. W. 2d 388, 164 A. L. R. 769. In that case the contractor had defaulted in the payment of material bills and the agent of the surety company participated in a conference with the contractor and the prospective lender in which the latter was assured by the surety’s agent, or by the contractor’s attorney in said agent’s presence, that the loan would be protected by the contractor’s bond. This is in contrast to the undisputed facts in the instant case that there had been no default when the appellant made the loans to Bird without any assurance from Maryland’s agent, or anyone else, that his claim would be superior to the rights of the surety.
In the circumstances surrounding the procuring of the loan in the Meyer case the Kentucky court held the lender was not a mere volunteer and became subrogated to rights superior to those of the surety; and that the particular circumstances were such as to constitute an exception to the well-settled general rule. In so holding the Kentucky court stated that it had perhaps been more liberal than other courts in its treatment of lenders to contractors in the situation there presented. It is unnecessary for us to determine whether we would follow the holding of the Kentucky court under the same state of facts that were presented in that case. It is sufficient to say that the evidence adduced by the appellant does not bring the case within the exception to the general rule there recognized. The facts here are more in line with those in American Bank and Trust Co. v. Langston, 180 Ark. 643, 22 S. W. 2d 381, where it was held that a surety was entitled to preference over a bank which made a loan to the contractor secured by assignments of the accounts to become due under the contract. In so holding the court said the bank was a mere volunteer and acquired no lien of any kind; that the surety rather than the bank was entitled to subrogation; and that its equity was superior to that of the bank. See, also, Goode v. Aetna Casualty and Surety Co., 178 Ark. 451, 13 S. W. 2d 6.
The evidence offered by appellant was insufficient to establish an agreement, express or implied, between appellant and Maryland that the claims of appellant would come within the provisions of the surety bond; or that any agreement between appellant and Bird in reference to the retainage should, in any degree, bind Maryland. In these circumstances the trial court correctly held the general rule applicable in sustaining the motion for a directed verdict. The judgment is accordingly affirmed. | [
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Pau'l, Ward, Associate Justice.
Tbe City Transit Company, owner of a garage in Jonesboro, secured a jury verdict against June Staudenmayer [and her guardian, Lelia B. Staudenmayer] in the amount of $585.05, for negligently driving, or causing to be driven, an automobile through its garage door, damaging said building and some of the contents thereof. The specific allegation of negligence was:
“The collision and the resulting damage were the direct and proximate result of the negligence of the defendant in becoming drunk and engaging in a drunken party with the unknown person occupying the car with her and in driving and permitting her car to be driven in such a condition and in failing to keep her car under control or to cause the driver to keep it under control and in driving off the street and across plaintiff’s lot and into its building without controlling or stopping the car.”
The answer was a general denial.
The principal question on appeal is one of law and it arises over an instruction given by the trial judge. There is practically no dispute about the pertinent facts.
June Staudenmayer is a young lady afflicted periodically with epileptic spells, but at other times she is perfectly normal. Because of this condition her mother was appointed her guardian in 1946. On the night of February 8, 1952, or the early morning of the 9th, June, who lived with her mother at Leachville, secured the keys to her mother’s car, without her mother’s consent, and drove the car to Monette. There she picked up two men who were strangers to her. She says one of the men drove the car while she sat between him and the other man. It appears likely June was under the influence of liquor at this time or, as she says, under the influence of medicine' she had taken. She says that she remembers driving towards Jonesboro but remembers nothing else until after the accident.
An employee of the Transit Company was on duty at the garage early on the morning of February 9th when he heard the car crash through the swinging doors used by busses. He made an immediate investigation and found June sitting in the car but he did not see anyone else around the car or leaving the building. It was his opinion that June was drunk or doped. A patrolman who appeared on the scene in about five minutes did not see either of the strange men around the car or leaving the building but he did see June in the middle of the front seat. He stated she was in her pajamas and intoxicated and that she was charged with public drunkenness. It is admitted that the car belonged to June’s mother and appellants do not question the extent of the damages.
At the conclusion of plaintiff’s testimony appellant moved for a directed verdict on the ground that it was not shown that June Staudenmayer owned the car or that she was driving the car at the time of the accident. The trial court denied this motion and we think correctly so. Some of the reasons for this conclusion will be set out later but it suffices to note at this time that there was evidence from which the jury might have found that June was driving the car at the time of the accident. This being true a jury question was presented and therefore the court correctly overruled the motion.
The principal ground urged by appellants for a reversal is the alleged error in appellee’s Instruction No. 3 given by the court to the jury. This instruction reads:
“If you find from a preponderance of the evidence in this case that the defendant, June Staudenmayer, individually, drove or caused to be driven by another, the automobile in which she was riding in a negligent manner, and that as a proximate result of the negligent driving of the said automobile the property of the plaintiff was damaged, your verdict should be in favor of the plaintiff against the defendant, Lelia B. Staudenmayer, as guardian of the defendant, June Staudenmayer, and unless you do so find your verdict will be for the defendant. ’ ’
We understand that appellants admit, first, that under the facts in this case appellee is entitled to a judgment if June Staudenmayer had been a normal, sane person, and second, that appellee would likewise be entitled to judgment even though June was an incompetent person if she had been driving the car. Therefore we assume that appellants’ main objection to the instruction set out above is to that portion which allowed appellee to recover if the jury should find that June “caused the car to be driven by another. ” It is strongly argued that June, being adjudged an incompetent person, could not be liable in this case, if she was not actually driving the car, except on the theory that she appointed one of the strangers to drive for her as her agent. It is then argued that she had no such capacity under the law citing, among others, the following authorities: George v. St. Louis I. M. & S. Ry. Co., 34 Ark. 613; First National Bank of Rogers v. Tribble, 155 Ark. 264, 244 S. W. 33; Reams v. Taylor, 31 Utah 288, 87 Pac. 1089; Thompson v. Bell, 6 Cir., 129 Fed. 2d 211, and; Restatement of the Law of Agency, Vol. 1, Sec. 20. We have read all of the authorities cited hy appellants and agree that they hold, in general, that an insane person is incapable of appointing an agent. In the George case, supra, appellant sought to void a release he had signed to a Railway Company on the ground that he was insane at the time he signed it. It was held that this was a question of fact for the jury to determine from the testimony. In the Tribble case, supra, the court made the same announcement when appellee, who had been adjudged incompetent, defended against an action for borrowed money on the ground that he was incompetent. In the Thompson case, supra, it was held that an incompetent person could not enter the relationship of a joint enterprise which rested upon the principle of agency.
It is our view that none of the authorities cited by appellants are decisive of or pertinent to the case under consideration. As we see it the facts in this case do not raise the question as to whether an insane person can appoint an agent. There is no substantial evidence in this record to show that June Staudenmayer was insane or incompetent during any time related to this episode. It is admitted of course that her mother was appointed her guardian in 1946 because she was subject to epileptic seizures but all of the testimony including her own shows that at all times when not so seized she was the same as any other normal intelligent person. Appellants made no attempt to show, and there is no testimony to show, that June was affected by a seizure when she left her mother’s home, when she picked up the strangers or when the accident occurred. There is testimony that she might have been doped or drunk but she cannot'escape liability here by bringing these conditions or either of them upon herself.
Appellants did not ask, and we think correctly, for an instruction which would have permitted the jury to pass on June’s mental capacity at the time involved here. Under this situation appellants are in no position to object to the court’s instruction set forth above.
The view which we have taken of this case makes it unnecessary for us to consider other questions which were raised and discussed, such as the following: Can an insane or incompetent person be held for damages done by an automobile which he owns and in which he is riding hut which is driven by another person; and is it material whether the incompetent person actually owns the car at the time or has it in his lawful possession.
Finding no error, the judgment of the lower court is affirmed. | [
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Ward, J.
This action was originated by appellant to enjoin the City of Texarkana from enforcing an ordinance which purported to regulate heavy traffic on certain streets. The trial court held the ordinance valid, hence this appeal.
Complaint. Petitioner (appellant) is a resident and citizen of Miller County, residing on East 24th Street outside but near the city limits of Texarkana; he operates a wholesale and retail butane gas business adjoining his home; his business requires the use of trucks of more than one-half ton capacity on East 24th Street. The City Council of the City of Texarkana passed Ordinance B-866 which reads (insofar as material here) as follows:
“Section 1. Hereafter it shall be unlawful for any person, firm or corporation, or its agents, officers or employees, to operate any motor truck, truck-tractor with semi-trailer or any full trailer, either of which is of more than one-half ton capacity upon 24th Street, 12th Street or Jefferson Street in the City of Texarkana, Arkansas.
“Section 2. (a) This Ordinance shall not be construed to prohibit motor vehicle trucks from crossing said streets at their intersections with other streets, (b) nor apply to delivery trucks serving the residents in the immediate area, (c) nor shall this ordinance be construed so as to prevent any person living within the corporate limits of Texarkana, Arkansas, from operating such trucks upon said streets where it becomes necessary for them to reach their homes. ’ ’
(Separation of clauses and emphasis supplied for convenience.)
Section 3. Provides for appropriate street signs.
Section 4. Penalty for violation.
‘ ‘ Section 5. This Ordinance being necessary to protect the pavement upon said streets, and for the immediate preservation of the public health, peace and safety of said city, an emergency is hereby declared to exist and this Ordinance shall be in full force and effect from and after its passage, approval and publication.”
The enforcement of said ordinance will cause petitioner irreparable damage, in that it is reasonably necessary for petitioner to make use of said East 24th Street within the city in going to and proceeding from his place of business in connection with the delivery of butane gas to his customers residing within and at points beyond the city. The enforcement of the ordinance will cause petitioner further irreparable damage in that his customers are prohibited from -using East 24th Street within the city, compelling them to purchase butane gas from other distributors, and the enforcement of the ordinance will compel him to discontinue his business.
It was further alleged that said ordinance violates the 14th Amendment to the Constitution of the United States and Article 2, §§ 18 and 22 of the Constitution of Arkansas because it is discriminatory, provides unreasonable and inequitable class legislation, is confiscatory of his personal and property rights and deprives him of his property without due process of law. The answer was a general denial.
The testimony (in substance). Appellant’s home and place of business abuts East 24th Street on the north side and is about a block and a half east of Jefferson Street which runs north and south the full length of the City, 24th Street running east and west. About a mile west from appellant’s home 24th Street intersects Highway 71 (sometimes referred to as the State Line) which runs north and south, and it is about the same distance east from appellant’s home to where 24th Street intersects Highway 67 which (from the point of intersection) runs northeast toward Hope and southwest toward Dallas, intersecting Highway 71 on the south side of the City. In conducting his business appellant has several heavy trucks (more than one-half ton) which he uses to deliver gas to 8 or 9 wholesalers and to haul gas to his place of business from the refinery located on or near Highway 71 south of the City. Also as a part of his business he makes deliveries to individual customers and he sells gas to large trucks and other customers who come to his place of business. It is not disputed that the most convenient route for appellant to reach Highway 71 is 24th Street. (It is noted here that in his complaint appellant makes objection only to the regulation of 24th Street.) It is insisted by appellant that in order to reach the refinery or to travel south of the City on Highway 71 it is necessary for him to go approximately 4 to 6 miles farther than he would have to go by using 24th Street. One route, he says', would be to go east on 24th Street to Highway 67, thence southwest on 67 to where it inter sects Highway 71 or a distance of approximately 4 or 5 miles. Evidence shows that the corporate line runs in the middle of 24th Street for a distance of about 400 feet from appellant’s home west to the intersection of 24th Street with Jefferson Street. It is also shown that north of 24th Street the corporate line runs in the middle of Jefferson Street from 28th Street to 32nd Street and thence west along the middle of 32nd Street (approximately a mile) to Highway 71 or State Line. It is conceded that appellant can drive his trucks from his home 400 feet west to Jefferson Street, thence north on Jefferson Street (approximately one-half mile) to 32nd Street, thence west on 32nd Street to Highway 71. From this point appellant can drive his trucks south on Highway 71 (approximately one-half mile) to the intersection with 24th Street. From this it- must be observed that by taking the last mentioned route appellant would have to go from one mile to a mile and a half farther to reach the intersection of 24th Street and Highway 71 than he would have to go by direct route west on 24th Street to reach the same point. It is admitted that trucks returning to appellant’s place of business could not follow the route detailed above for the reason that the west half of Jefferson Street (from 32nd Street south to 28th Street) is within the city limits. There is other testimony however to the effect that other return routes are available to appellant which would not be materially longer than the one along 24th Street. The testimony shows that at least a portion of 24th Street has a gravel base with a thin blacktop covering and that the street would be damaged by the use of heavy trucks.
Issues eliminated. Much argument on both sides is directed to the several exceptions contained in Section 2 of the ordinance. One exception is that delivery trucks may serve residents [of the City] living along or near the prohibited streets. Another exception is that the ordinance shall not prevent residents of the City from using the streets where it is necessary to reach their homes, even in trucks of more than one-half ton capacity. Appellant’s argument is that these exceptions provide a classification based on residence and is therefore invalid. ,We do not, in this opinion, reach this question for the reason that these exceptions are not attacked by the pleadings or supported by the evidence. It is not within the province of the duties of this court to declare an entire ordinance invalid merely because we might feel that some portion of it, not attacked, is invalid. In Ferguson Coal Co. v. Thompson, Mayor, et al., 343 Ill. 20, 174 N. E. 896, where a similar issue was raised, it was said:
“Under no circumstances will a court of equity entertain a bill to enjoin the enforcement of an ordinance oii the ground alone that it is void, but those seeking to restrain its enforcement must allege and prove facts showing that their interests are affected. They have no right to challenge provisions which do not affect them.”
The Issue. Therefore the only issue left for our consideration is the validity of Section 1 of the ordinance which prohibits the use of trucks [of over one-half ton capacity] on the named streets. While the pleadings refer only to 24th Street we will consider the pleadings as amended to include Jefferson Street also. There is no mention of 12th Street in the pleadings or testimony.
Appellant bases his argument for a reversal of the trial court on five grounds which we shall discuss in order.
1, 2. It is urged, first, that the ordinance violates the Federal and State Constitutions, and second, that the City of Texarkana has no power to enact such an ordinance, These two arguments, with which we do not agree, may be considered together.
There can be no doubt that cities such as Texarkana have the power, under our statutes and decisions, to pass ordinances of this nature. The exercise of similar powers on the part of cities'has been recognized in Sander v. Blytheville, 164 Ark. 434, 262 S. W. 23; City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187, and Goldman & Company, Inc. v. City of North Little Rock, 220 Ark. 792, 249 S. W. 2d 961.
This power has also been granted to the cities either directly or inferentially by statutes. Ark. Stats., § 19- 2303, gives cities the right “to regulate the transportation of articles throughout the streets, and to prevent injury to the streets from overloaded vehicles.” Section 19-3801 gives cities “supervision and control of all the public highways, bridges, streets . . . within the city.” Section 19-2401 gives cities the general power to pass ordinances, not inconsistent with the laws of this state, as seem necessary and provide for the safety, preserve the health, and promote prosperity and convenience of the inhabitants.
Appellant practically concedes that cities had the power to enact ordinances such as the one under consideration prior to 1937, but says, in effect, that Act 300 of 1937 repealed or superseded the statutes above quoted. We see no merit in this argument. Portions of said Act 300 dealing with the regulation of the- size of trucks have been superseded or modified by Act 152 of 1953 which iñ turn has been likewise changed by Act 98 of 1955. Trucks weighing in excess of 56,000 pounds are prohibited from using the highways. None of these acts specifically rer peal the statutes above set out. After a careful reading of these acts we are convinced that they do not repeal them by implication. Moreover, repeal by implication is .not favored. See Moncus v. Raines, 210 Ark. 30, 194 S. W. 2d 1, and McDonald v. Wasson, 188 Ark. 782, 67 S. W. 2d 722. Appellant calls attention to § 25 of said Act 300 which states that the provision of the act shall be applicable and uniform throughout the state and. all municipalities, and states that no local authority slqall enact any regulation in conflict. The last sentence in this section however states that local authorities may adopt traffic regulations which are not in conflict with the act. We are unable to find where the provisions of the ordinance under consideration conflict with either the spirit or the letter of Act 300. In fact § 26 of said Act 300 provides that the act “ shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of police power from . . . restricting the use of highways as authorized in Article 16 of this act.” As we understand the provisions of said Article 16 they regulate the maximum weight of trucks allowed on the highways and in no way take away the right of cities to reasonably regulate the use of all heavy trucks on certain streets. Certainly cities would have no power to permit trucks weighing more than 55,000 pounds to use the streets and highway. So, if they can’t regulate lighter trucks, the language in § 26 is meaningless.
3, 4. It is next argued that the ordinance is invalid in that it sets forth unconstitutional class legislation. Many cases are cited to the effect that legislation based on residence or other unreasonable classifications is invalid. It is not necessary for us to consider this line of reasoning since the exceptions contained in Section 2 of the ordinance are the only portions based on classification and they have been eliminated. It is not contended by appellant that Section 1 of the ordinance in any way deals with classification.
5. Finally appellant insists he is entitled to injunctive relief because the enforcement of the ordinance would deprive him of his property without due process of law. In view of what we have already said it appears to us that the only issue left for consideration is whether or not the ordinance is unreasonable or arbitrary. In this connection we are confronted at once with a presumption that the ordinance is valid and that it is not unreasonable or arbitrary. "We have announced this rule in the Sander case, supra, City of Fort Smith case, supra, and, Goldman db Company, Inc., case, supra. A similar question involving the validity of an ordinance was considered in the Sander case, supra, where the court said:
“. . . notwithstanding these allegations, it was nevertheless within the option or discretion of the city council to determine whether the welfare of the city demanded the abatement of these structures; and, unless such discretion was exercised in an arbitrary, discriminatory and unreasonable manner, or in such manner as to invade the constitutional rights of property, the court will not interfere and declare the ordinance void.”
In the Thompson case, supra, it was stated that “where an ordinance is within.the grant of power con ferred upon municipalities, the presumption is that it is reasonable.”
Under the facts and circumstances of this case as heretofore set out we cannot say that the ordinance was unreasonable or arbitrary, and we do not feel that we would be justified in holding that the chancellor’s finding on this point was against the weight of the evidence. While the testimony regarding the feasibility of the routes which the ordinance forces appellant to use in the conduct of his business is somewhat contradictory and uncertain, this only makes it more difficult for us to say the chancellor erred. It is not clear from the testimony that appellant does not have reasonably feasible routes of ingress and egress to his place of business. Conceding the testimony shows that appellant will be inconvenienced and that he will suffer some pecuniary loss, yet that alone is not sufficient ground for us to declare the ordinance unreasonable. It was so held in the Thompson case, supra, where it was also said “in order to justify a court in interfering on the ground that an ordinance is unreasonable the proof must be clear and strong, and the action of the city council is final, if there is room for reasonable difference of opinion upon the question. ’ ’
Although the argument is not specifically made by appellant, it might be said, with some reason, that his pleading and testimony entitles appellant to rely on the last exception in Section 2 of the ordinance. The argument would be that appellant [a non-resident of the City] is denied the use of 24th Street in returning to his home in a heavy truck — a privilege allowed those living within the corporate limits. On the face of it, this appears to be a discrimination based on residence alone, but we do not think it is in fact. Obviously the ordinance grants this privilege to those who merely want to return to their homos after work is finished, and not to those who intend, as appellant does, to use it for transaction of a business.
Having found no error, the decree of the trial court is affirmed. | [
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Hart, J.
Appellants and appellee are the owners of adjoining tracts of land on the Arkansas River in Perry Countv. Arkansas. This suit was instituted by appellee against appellants in the chancery court for the purpose of settling the boundary between them to the accretions formed in front of their lands, and no question has been raised as to the jurisdiction of the .court.
The chancellor seems to have held that the boundary between appellants and appellee as to the accretions was to be determined by extending a line at right angles from the boundary between them on the old .river bank to the present bank of the river. A decree was rendered accordingly, and the case is here on appeal.
The difficulty of establishing an absolute rule for the apportionment of accretions between coterminous proprietors under all circumstances has been generally recognized by the courts, and the principle observed is to make such a division as will give to the proprietors of the new shore line such portion thereof as they possessed of the old shore line before the formation of the alluvion. In Deerfield v. Arms, 17 Pick. (Mass.) 41, 28 Am. Dec. 277, this rule is laid clown for the division of alluvion between the contiguous riparian proprietors — First: to measure the whole extent of the ancient bank or line of the river, and compute how many rods, yards or feet each' riparian proprietor owned on the river line: Second: supposing the former line for instance to amount to 200 rods, to divide the newly formed bank or river line into 200 equal parts, and appropriate to each proprietor as many portions of this new river line, as he owned rods on the old; then, to complete the division, lines are to be drawn from the points at which the proprietors respectively bounded on the old to the points thus determined as the points of division of the newly formed shore.
Commenting on this method of apportionment the court said: “This mode of distribution secures to each riparian proprietor the benefit of continuing to hold to the river shore whatever changes may take place in the condition of the river by accretion, and the rule is obviously founded in that principle of equity upon which the distribution ought to be made.” See also Northern Pine Land Co. v. Bigelow, (Wis.) 21 L. R. A. 776, and cases cited; Hathaway v. Milwaukee, (Wis.) 9 L. R. A. (N. S.) 778; 122 Am. St. Rep. 975; Johnson v. Jones, 1 Black (U. S.) 209; Bachelder v. Keniston, 51 N. H. 496; 12 Am. Rep. 493; 5 Cyc. 888, and cases cited; 29 Cyc. 353.
Hence it will.be séen that this rule has been generally recognized as the proper one to follow unless there are such irregularities in the shore lines as to make it inequitable, and we adopt it. as the general rule in this State. This rule of apportionment has been modified under pecular circumstances, as where the shore line happens to be elongated by deep indentations or sharp projections. Hopkins Academy v. Dickinson, 9 Cush. 552, and cases cited. 1 Am. & Eng. Enc. Law & Prac. p. 808, note 14 (a).
In this case, .however, there are no special circumstances that call for a departure from or modification of the general-rule. It follows that the chancellor proceeded on an erroneous theory in the division of the accretions. The measurement made by the two surveyors of the appellee were not made with reference to the rule above announced by the court, and appellee challenges the correctness of the survey and estimates made by the surveyor of the appellants. In the application of the rule in Long v. Abeles, 77 Ark. 156, the decree will be reversed and the cause remanded and reopened so that the parties, if so advised, may take additional proof on the measurement of the accretions under the rule adopted by the court. It is so ordered. | [
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McCulloch, C. J.
The Stoneman-Zearing Lumber Company (a corporation) owned a tract of timber land in White County, Arkansas, containing about 15,000 acres, and on September 20, 1906, entered into a written contract with appellee whereby it gave the latter an option to purchase the persimmon timber on said land. This is a suit instituted by appellee to compel specific performance of the contract, and after its institution appellant, Fannie M. Zearing, was appointed as receiver of the Stoneman-Zearing Lumber Company, and substituted as defendant. The contract (omitting' caption) reads as follows:
“That the Stoneman-Zearing Lumber Company, a corporation created as aforesaid, and doing business as aforesaid, in consideration of one hundred dollars to it paid, * * * do hereby sell, give and grant to the said Clarendon Last Block Works, H. S. Matthewman, general manager, an option on all of the persimmon timber upon the following described lands, lying and being situate in White County, Arkansas, towit: (here follows description) for a period of thirty days from date hereof, with the privilege of an extension for thirty days longer, in case of overflow or sickness.
“It being expressly agreed and understood that the said Stoneman-Zearing Lumber Company is to furnish at its expense a man to assist in estimating said persimmon timber on said land, and the said H. S. Matthewman, general manager of the Clarendon Last Block Works' is to furnish at its expense a man to represent it in the estimation of said timber, and that the expenses for boats, provisions, additional help, etc., while estimating and in estimating said timber, is to be borne equally by each of said corporations, and that, as soon as said estimate is made and agreed upon by the parties representing each of said corporations, the said H. S. Matthewman, general manager of the Clarendon Last Block Works, or the Clarendon Last Block Works, are to pay to the Stoneman-Zearing Lumber Company three dollars per thousand feet for said persimmon timber, according to the estimate agreed upon.
“It being expressly agreed and understood that said estimate must be completed and agreed upon in thirty days from the date of this option, except as aforesaid, in case of high water or sickness, in which said event the time is to be extended thirty days longer, and in no event shall said option be extended longer than sixty days, and, in case of high water or sickness as aforesaid, said timber must be paid for within sixty days.
“It is expressly agreed and understood that, after said timber has been estimated and agreed upon and same paid for at the price aforesaid, ($3.00 per thousand), the said Stoneman-Zearing Lumber Company is to execute and deliver to the said H. S. Matthewman, general manager of the Clarendon Last Block Works, a timber deed to all of the persimmon timber standing upon the above described lands, and is to give him the right, authority and license for ten years from date of said deed to go upon, over and across any of said lands with wagons and teams in the getting of said timber out.
“It is further expressly agreed and understood that should the said Stoneman-Zearing Lumber Company and H. S. Matthewman, as general manager, etc., as aforesaid, fail to agree upon an estimate of said timber, or, after agreeing to same, should the said H. S. Matthewman, as general manager as aforesaid, or any one for him or said Clarendon Last Block Works, fail to pay for said persimmon timber at the price of $3 per thousand feet on said estimate, then the said $100 paid as aforesaid shall forfeit to the said Stoneman-Zearing Lumber Company, and belong to and become theirs, but should the said H. S. Matthewman, as general manager as aforesaid, pay for said timber as herein provided, the $100 as aforesaid is to be and become a part of the purchase money therefor.”
Appellee was operating in that territory under the name of Clarendon Last Block Works, having a mill at Clarendon, Arkansas, for the manufacture of shoe lasts, golf heads and shuttle blocks. On October 17, 1906, appellee, by letter, asked for an extension of the option until January 1,1907, and this was granted. Appellee’s manager, Mr. Matthewman, in making the request for extension, pleaded bad weather and high water as having prevented making an estimate of the timber. Nothing further was done under the contract — no estimate of the timber was made by either party — and on December 31, 1906, appellee’s manager tendered to the Stoneman-Zearing Lumber Company the sum of $4,400 to cover the price of the timber (after deducting the sum of $100 paid at the time of executing the contract), according to an estimate of 1,500,000 feet of timber said to have been made by an agent of Stoneman-Zearing Lumber Company prior to the time that the option contract was entered into. The agent’s name is Nimmo, and the evidence tends to show that he made an estimate of the timber for his employer, the Stoneman-Zearing Lumber Company, in July or August, 1906, when the land was purchased by the latter, that he negotiated the sale of the timber to appellee and represented to appellee, during the negotiations, that there were 1,500,000 feet of persimmon timber on the land, and offered to let appellee take the timber on that estimate. That was on the day the option contract was entered into. Appellee declined to purchase the timber on that estimate, and the parties thereupon entered into the written contract hereinbefore set forth.
There is a sharp and irreconcilable conflict in the testimony as to whether Nimmo ever made an estimate of the timber, or whether he had any authority to offer the timber for sale on that basis; but the conclusion which we 'reach makes it unnecessary to settle the conflict and determine where the preponderance of the testimony lies. We conclude that appellee has failed toestablish any right to have the contract carried out, even if we accept as correct its own version of the facts. It is not claimed that appellee, at any time during the life of the contract, performed, or offered to perform, it by havi'ng'the estimate of the timber made, or that it was prevented , by the Stoneman-Zearing Lumber Company from taking steps- to estimate the timber'. It is not claimed that the terms of the written contract were changed in any way after its execution, or that Nimmo, or any other agent of the Stoneman-Zearing' Lumber Company, agreed, after the execution of the contract, that appellee might take the timber upon the estimate previously, made. Appellee, on the contrary, bases its claim entirely on the ground that Nimmo represented to its manager, in the. negotiations leading up to the execution of the written contract, that he had estimated the timber at a millón and a half feet and offered to let appellee have it on that estimate, then or any other time within the life of the contract. The writing itself must be accepted as the sole evidence of the agreement between the parties. No effort is made to reform it; and, if'that be attempted, the testimony is wholly insufficient to accomplish such end. The parties reduced their agreement to writing, and by that alone are their rights to be tested. It is an inflexible rule of evidence that all antecedent proposals and negotiations become merged in a written contract, which can not be váried by parol testimony. This is elemental. Appellee declined to accept the alleged offer of sale of the timber on the basis of a million and a half feet, and elected to enter into a written contract for an option to purchase on an estimate thereafter to be made in a certain way. The effect of the written contract was to withdraw the alleged offer of sale on the basis named and to substitute therefor an offer to sell on the basis of another estimate, and appellee acquired by the contract merely the right to accept the offer within the time specified, as it wás not a contract of sale but only an option to purchase. Bonanza Mining & Smelter Co. v. Ware, 78 Ark. 306. If appellee intended to preserve its right to accept the estimate of Nimmo, it should have caused that to be inserted in the written instrument which became the sole evidence of the agreement. After having failed to do so, it is barred by well-settled rules of evidence from seeking now to engraft the provision upon the written contract. It is a mistake to assume that the provision in the contract for an estimate of the timber to be made in a certain way was exclusively for the benefit of appellee. To thus construe would be to read something into it which is not found there. When appellee rejected the alleged offer of Nimmo to let the timber go at his estimate of a million and a half feet, then the Stoneman-Zearing Lumber Company elected to prescribe other terms in the written contract upon which it was willing to sell the timber. Those terms were prescribed for the benefit of both parties to the contract, and it is easy to see why each party wanted a thorough and careful estimate made of the timber, so that its true value according to the price named in the contract could be ascertained. The timber estimate made by Nimmo at the time of the purchase of the land, was, confessedly, only a rough and inexact one. The owner may have been willing, when the offer of sale of the timber was first made, to sell on the Nimmo estimate; but, as that offer was not accepted, it is reasonable to suppose that a more careful estimate was desired. At any rate, the written contract so provides, and we are not at liberty to disregard the plain terms of the contract, for to do so would be to make a contract between the parties which they did not make for themselves. If, after the execution of the contract, the Stoneman-Zearing Lumber Company had offered to let the timber go under the contract at the original Nimmo estimate, and there had been a timely acceptance of that offer, it would have operated as a new contract, superseding the old one, and the making of another estimate in accordance with the terms of the contract would have been waived. . But such is not the case. It is not claimed that any such offer was made after the execution of the contract, and there is not a scintilla of evidence that Nimmo had any authority to change the contract, even if he had attempted to do so, after its execution, by offering to let appellee have the timber upon the old estimate. The contract being one merely for an option to buy, the specified time for performance was of its essence; and, before appellee can claim the right to enforce it, it must show performance on its part, or an offer to perform the contract within the time specified; otherwise its rights therein ceased. Indiana & Arkansas Lumber Co. v. Pharr, 82 Ark. 573.
As the conclusion which we have .thus reached is decisive of the right to enforce the contract, other phases of the case need not be discussed. The decree is therefore reversed, and the cause is remanded with directions to dismiss the complaint for want of equity. | [
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Sam Robinson, Associate Justice.
The appellant was charged with the crime of murder in the first degree. He was convicted of murder in the second degree. There is only one issue and that is whether the court erred in the giving of Instruction No. 11. Although specific objection was made to the giving of this instruction, the court did not rule on the objection and no exception was saved.
Ark. Stats. § 43-2723 provides: “In all cases appealed from the circuit courts of this State to the Supreme Court, or prosecuted in the Supreme Court upon writs of error, where the appellant has been convicted in the lower court of a capital offense, all errors of the lower court prejudicial to the rights of the appellant shall he heard and considered by the Supreme Court whether exceptions were saved in the lower court or not; and if the Supreme Court finds that any prejudicial error was committed by the trial court in the trial of any case in which a conviction of a capital offense resulted, such cause shall be reversed and remanded for a new trial, or the judgment modified at the discretion of the court.” The above statute applies only in cases where there has been a conviction of a capital offense. Here, although the appellant was charged with a capital offense, he was convicted of a lesser offense. In Edwards v. State, 110 Ark. 590, 163 S. W. 155, Chief Justice McCulloch said: “The Act of 1909 [Ark. Stats., 43-2723] to which counsel for defendant refers in his brief, relates only to a case in which there had been a conviction of a capital offense, and in all other cases we are not permitted to review alleged errors to which no exception has been saved. ’ ’
In Yarbrough v. State, 206 Ark. 549, 176 S. W. 2d 702, it is said: “Appellant, in the instant case, has not been convicted of a capital offense. We are not permitted, therefore, to review alleged errors to which no exceptions have been saved.” In the Yarbrough case, the court quotes as follows from McKinley v. Broom, 94 Ark. 147, 126 S. W. 391: ‘ ‘ On appeal from the circuit court, this court only reviews errors appearing in the record. The complaining party must first make an objection in the trial court, and this calls for a ruling on his objection. An exception must then be taken to an adverse ruling on the objection, which, ‘directs attention to and fastens the objection for a review on appeal.’ ”
In jury trials, either party has the right to have reduced to writing all of the instructions that are to be given by the court. Section 23 of Article 7 of the Constitution of Arkansas provides: ‘ ‘Judges shall not charge juries with regard to matters • of fact, but shall declare the law, and in jury trials shall reduce their charge or instructions to writing on the request of either party.” The purpose of this constitutional provision is to give counsel for either party an opportunity to study the instructions and to make objections and exceptions in the judge’s chambers, and, when done in that manner, there is no danger of the jury being influenced by rulings that the court makes on request for or objections to instructions.
In the case at bar, the record does not show at what point appellant made his objection to the instruction; in any event, no ruling of the court was obtained on the objection and no exception was saved. Therefore, we cannot consider the objection on appeal.
Affirmed. | [
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Minor W. Millwee, Justice.
Appellee, Charles Smith, was injured while working as a carpenter in the construction of two houses on a 70-acre subdivision owned and being developed by appellant, J. A. West, just outside the city of El Dorado, Arkansas. Smith filed a claim for compensation before the Workmen’s Compensation Commission against the appellant and appellee, W. M. Holder. It was Smith’s contention that Holder was either a foreman-employee on a construction job carried on by appellant, J. A. West, and therefore he (Smith) was an employee of West, or that Holder was an independent contractor, in which event Smith was the employee of Holder. Both West and Holder contended that Smith was the employee of the other.
Hearings before a single commissioner and the full Commission resulted in an award of compensation in favor of Smith against appellant based on a finding as follows: “It is clear from the evidence, and there appears to- be no dispute, that J. A. West was engaged in the business of building houses for sale. The Commission is of the opinion that the status of W. M. Holder in building the houses for J. A. West was that of a foreman for West who retained and exercised the right of control and supervision over the work and the men doing it; that the exercise of this right of control was such as to create the relationship of master and servant between J. A. West and claimant, thus making claimant an employee of J. A. West on this particular construction job.” On appeal to Circuit Court, the Commission’s award was affirmed.
The only issue before this court is the sufficiency of the evidence to support the Commission’s finding that Holder was the foreman-employee of appellant and not an independent contractor. In determining this issue, we view the evidence in its strongest light in favor of the finding of the Commission. Hughes v. Tapley, Administratrix, 206 Ark. 739, 177 S. W. 2d 429. While the question of the sufficiency of the evidence to support the findings of fact made by the Commission is one of law, such findings will not be disturbed on appeal if supported by any substantial evidence. See Parker Stave Company v. Hines, 209 Ark. 438, 190 S. W. 2d 620, where we said: ‘ ‘ In determining whether one is an employee or an inde pendent contractor, the Compensation Act is to be given a liberal construction in favor of the workman, and any doubt is to be resolved in favor of his status as an employee rather than an independent contractor. Irvan v. Bounds, 205 Ark. 752, 170 S. W. 2d 674; 71 C. J., p. 449.
“No hard and fast rule can be formulated to determine whether a workman is an employee or an independent contractor, and each case must be determined upon its own peculiar facts. In the ease of Irvan v. Bounds, supra, the decisions from other jurisdictions on this question are reviewed, and the various rules employed by other courts in determining the relationship are discussed. There are many well-recognized indicia of the status of the relationship, but the presence of one or more of them in a case is not necessarily conclusive of this status. In 27 Am. Jur. 486, it is said: ‘The most important test, in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer. Whether one is an independent contractor depends upon the extent to which he is, in fact, independent in performing the work. Broadly stated, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor.’ ” See also, Brooks, Inc., v. Claywell, 215 Ark. 913, 224 S. W. 2d 37.
According to the evidence presented by appellees, the appellant is a partner in the ownership and operation of several department stores in El Dorado and other Arkansas cities. He was also engaged in the development of the residential subdivision in question and had built several houses for sale therein prior to construction of the two houses on which Holder and Smith worked. The construction of these two houses was begun under an oral agreement between appellant and Holder whereby the latter and other carpenters employed by him were to do all the carpenter work. Under the agreement, Holder was to be paid $10.00 per day, or $50.00 per 5-day week, while the work was in progress and upon comple tion of the job was also to draw the difference between the total cost of all carpenter work and the snm of $4,300, if any. Thus, if Holder was able to keep the total cost of all carpenter labor under $4,300, he was to receive such differential as additional compensation for his own work. Holder had no money and appellant was to furnish all materials and advance all moneys necessary to pay all carpenter labor each week upon weekly reports by Holder as “foreman,” setting out the number of hours and the hourly wage paid each carpenter on the job.
Appellee Smith was employed as one of the carpenters on the job and had worked about a week when he was injured. A few days prior to the injury, appellant came out to the job and directed Smith to get another man from Holder and dig some percolation test holes over the entire subdivision. After the two men had been engaged in this work for a short time, appellant telephoned Holder and told him to call the two men back and put them back to work on the houses and this was done.
Neither appellant nor Holder carried workmen’s compensation insurance at the time of the injury, but, shortly thereafter appellant directed Holder to take out such insurance and furnished him the cash with which to do so. Subsequent to the injury, appellant also instructed Holder to withhold and pay social security and withholding taxes on the wages paid Smith. Smith and the other carpenters under Holder’s supervision were paid by funds advanced by West to Holder each week. At times these payments were made in one of the West Brothers department stores in El Dorado.
Shortly after Smith’s injury, Holder left to take a more lucrative job in Ohio. By agreement with appellant, Holder’s son, Grover, took his father’s place as foreman of the construction job. Two days later, appellant gave Grover Holder the money to pay off the other carpenters and instructed him to discharge them, and this was done. Thereafter, Grover Holder did some carpenter work for which he was paid $10.00 per day as previously, but neither of the houses had been completed at the time of the final hearing before the Commission. After Holder returned from Ohio, appellant requested that he sign a back-dated written contract, but Holder declined to do so. Holder did not have a contractor’s license at the time of the oral agreement and injury. He had previously done construction work for appellant under written contracts and at a time when he had such a license.
In our opinion, the foregoing evidence was substantial and sufficient to sustain the Commission’s finding that the relationship of employer and employee existed between appellant and Smith at the time of his injury. While certain phases of the oral agreement tend to show that Holder was an independent contractor, the fact that appellant actually exercised some control over Smith in the doing of the work, together with the further fact that appellant could and did discharge the workmen employed by Holder, without liability, indicate the relationship of employer and employee. Other indicia of such relationship are the apparent financial irresponsibility of Holder and the furnishing of all materials and moneys with which to pay wages of all the workmen by appellant. See Annotations, 75 A. L. R. 725, 20 A. L. R. 751. These facts are sufficient to sustain the conclusion that appellant reserved a degree of control over the work of Holder incompatible with that usually enjoyed by an independent contractor and consistent with the relationship of employer and employee. The judgment of the Circuit Court is accordingly affirmed. | [
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Paul Ward, Associate Justice.
The question for decision in this case is: When are the organizers of a purported corporation individually liable for debts contracted in the name of such corporation? No oral testimony was taken in the trial court, and this case is presented to us on the pleadings, stipulations and the record.
On August 26, 1953, Articles of Incorporation of “National Truck Leasing System, Inc.” were filed in the office of the Secretary of State. These articles show the organizers of said corporation to be: Paul J. Burks, Frank E. Jarvis, William L. Keesee and Willis Y. Lewis. Stock Certificate No. 4 shows that 6 shares of the purported corporation were issued to Willis Y. Lewis on August 26, 1953. Certificate No. 5, of the same date, shows 6 shares issued to Paul J. Burks, and it is stipulated that these were the same shares that were executed to Lewis by Certificate No. 4. The record shows that on September 16, 1953, there was filed with the Secretary of State an “Amendment to Articles of Incorporation of National Truck Leasing System, Inc., changing name to: Motor Truck Rentals System, Inc.”
Beginning on October 29, 1953, and ending on December 12, 1953, the appellees, a partnership, sold and charged to the Motor Truck Rentals System, Inc., articles of merchandise in the total amount of $623.65 which had not been paid for.
On June 14, 1954, appellees filed this suit against appellants [the original incorporators named above] to recover judgment for the articles above mentioned. It was alleged that the articles of incorporation and the amendment thereof had never been filed in the office of the Pulaski County Clerk as required by Ark. Stats., § 64-103; that the Motor Truck Rentals System, Inc., is a de facto corporation, and; that the stockholders or original organizers were individually liable as partners.
On June 18, 1954, the aforementioned Articles of Incorporation and the Amendment were filed in the office of the Pulaski County Clerk.
On April 22, 1955, the above factual situation was submitted to the trial judge, sitting as a jury, and he rendered a joint and several judgment against all appellants.
The judgment of the trial court must be affirmed in part on the authority of Gazette Publishing Company v. Brady, 204 Ark. 396, 162 S. W. 2d 494, and Whitaker v. Mitchell Manufacturing Co., 219 Ark. 779, 244 S. W. 2d 965.
Appellants frankly admit that the holdings in the above mentioned eases are contrary to their contention here. However, in a forceful brief they present an array of authorities in an effort to convince this court that the Gazette case, supra, [upon which the decision in the Whitaker case largely rests] should be overruled. In response to this contention on the part of appellants it is sufficient to say that this same argument was forcibly urged in the Whitaker case, supra, and there rejected. In the latter case the contention here urged by appellants was specifically called to the court’s attention in a concurring opinion. Many of the authorities cited by appellants to sustain their contention were mentioned and discussed in the Whitaker case, supra. We can therefore see no good reason for discussing these cases again or for overruling the holding in the Gazette and Whitaker cases.
It is earnestly contended that the judgment of the trial court should be reversed insofar as it held appellant, Willis V. Lewis, liable. Lewis was one of the original organizers of the National Truck Leasing System, Inc., the name of which was later changed to Motor Truck Rentals System, Inc. In the Gazette case, supra, this court approved a statement made in the case of Garnett v. Richardson, 35 Ark. 144, that “in order to exempt the organizers of a corporation from personal liability for the debts of the concern, the articles of incorporation must be filed, in both the office of the Secretary of State and the office of the County Clerk.” It is undisputed that in the present case neither the articles of incorporation nor the amendment had been, at the time suit was instituted, filed in the office of the County Clerk of Pulaski County. Thus it would seem from the above that Lewis must be held liable in this instance. However, we do not think that, under the facts and circumstances of this case, the above conclusion correctly follows.
We have present in this case a fact situation which was not present in the Garnett and Gazette cases, supra, in that here credit was extended after Lewis ceased to be a member of the purported corporation. This fact question not being present in the cited cases we can feel sure that no special consideration was given to it. The Gar-nett opinion is short and certainly no consideration was given to the point under question in that case. The gist of the opinion in that case is found in the last sentence which reads as follow's: ‘ ‘ For purchases made by them before then they were personally liable as partners.” From this it appears that the court was considering a case wdiere the original incorporators made the purchases for which they were held liable. In this case Lewis had of course withdrawn from the purported corporation some twTo months before the purchases were made.
In this instance Lewis and the other original incorporators are placed in the role of partners by operation of law since they did not file articles of incorporation in the office of the County Clerk. Considering them as partners we have concluded that Lewis is not liable on the debt herein sued upon under the decisions of this court pertaining to a partnership. In the case of Rector v. Robins, 74 Ark. 437, 86 S. W. 667, a creditor sought to hold liable Robins, a member of a partnership, who withdrew from the partnership before the debt was contracted. This court there approved an instruction which stated that Robins would be liable if the creditor “extended the credit for the claim sued on in the faith of his belief that Robins was such a partner. ’ ’ The court again indicated on Page 443 of the Ai’kansas Reports that before Rector could hold Robins liable he must have extended credit upon the faith of Robins’ partnership in the firm.
It cannot be said in the case under consideration that appellees extended credit to the Motor Truck Rentals System, Inc., because of their reliance on Lewis ’ financial responsibility. No evidence was taken in this case and therefore there is no showing that appellees extended credit because of Lewis.
In the case of Raywinkle v. The Southern Coal Co., 117 Ark. 283, 174 S. W. 524, appellee sought to hold Ray- winkle liable as a partner for a debt contracted after he had withdrawn from the partnership. In holding that Baywinkle was not liable this court, among other things, said:
“The plaintiff [appellee] during this time had no dealings whatever with the firm and cannot be said to have contracted with the firm on the credit of Baywinkle. Baywinkle’s name never appeared in the firm and it was not shown that the firm in conducting its business ever used his name. Under these circumstances we do not think he was responsible for the debt of the plaintiff and the court erred in directing a verdict for the plaintiff.”
This same question was considered in the case of Anglin v. Marr Canning Co., 152 Ark. 1, 237 S. W. 440. There Anglin sought to recover against two partners who had withdrawn from the appellee partnership. This court in discussing the various instructions given by the trial court recognized that before appellant could recover he must have extended credit upon the faith he had in the financial responsibility of the former partners, or that the former partners’ conduct had been such as to mislead appellant into believing they were still members of the partnership firm. It cannot, of course, be said in the case under consideration that Lewis’ conduct in any way misled appellees, since no evidence was introduced. Neither did the “partnership” bear the name of Lewis.
Based upon the above observations it is our conclusion that the trial court erred in holding Lewis liable and the judgment is hereby reversed to that extent, but it is affirmed as to the other appellants.
Affirmed in part and reversed in part. | [
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Hart, J.
This is an appeal from a judgment convicting Arthur Cook of the crime of seduction. In such cases, before a conviction can be had, it is necessary for the testimony of the prosecutrix to be corroborated bo,th as to the promise of marriage and the sexual intercourse. Rucker v. State, 77 Ark. 23; Lasater v. State, Ib. 468; Wilhite v. State, 84 Ark. 67; Cooper v. State, 86 Ark. 30; Rogers v. State, 101 Ark. 45.
Tested by this rule, a verdict of guilty was warranted by the evidence, and, the sufficiency of the evidence to support the verdict not being questioned, no useful purpose can be served by abstracting the testimony.
The prosecution is this case was first begun before a justice of the peace; after the trial there, and before the prosecutrix went before the grand jury, the defendant expressed his willingness to marry her, and now offers this as a reason why the judgment should be reversed.
The fact that, after a prosecution for seduction was begun, he proposed to marry the female does not constitute a defense to the prosecution. Carrens v. State, 77 Ark. 16; Lasater v. State, 77 Ark. 468.
It is next insisted that the court erred in refusing to allow Doctor Greeson, a witness in the case, to answer certain questions asked him. The court sustained the objection of the State to the questions because they were leading and suggested their answers, but told counsel for defendant that if he would frame his questions in proper form the answers could be stated in evidence. Counsel for defendant declined to do this, and the defendant can not now complain of the action of the court.
Bettus Wheatly, a young man seventeen, years of age, testified that for several years prior to the time of the alleged seduction he had been in the habit of having sexual intercourse with the prosecutrix. The prosecuting attorney in his closing argument to the jury, in commenting on this witness’ testimony, said: “He don’t have to tell it; you can not put a man on the stand and force him to tell it; he can get up there and refuse to tell it; that is the law.” The defendant objected to this statement being made to the jury. The prosecuting attorney then said: “I say you can not make a man come in here and testify in a seduction case that he has had sexual intercourse with a woman.” The court then said: “Yes, that is the law; that is a correct statement.” The defendant excepted to the court’s statement. The prosecuting attorney then said: “A man that will go out and have sexual intercourse that many times and then come in here 'and spit it out, Isay he ought not to have communion with honest men.”
The Attorney General contends that the statement of law made by the prosecuting attorney and sanctioned by the court is correct, and relies on the case of Polk v. State, 40 Ark. 482, to sustain his contention. It is true that Judge Smith, in delivering the opinion in that case, uses language from which it might be inferred that this is the law, but a careful consideration of the whole opinion convinces us that the court did not mean so to decide. In that case the court held that the character of the prosecutrix is involved in a seduction case, and that it may be impeached by particular instances of incontinence occurring before the seduction. In any event, the language attributable to the decision of this question was obiter dictum, and is not the law. There is no statute in this State making fornication or adultery indictable. Turney v. State, 60 Ark. 259. Neither are they indictable as a common law offense, except in cases of open lewdness amounting to nuisance. Krouse v. State, 16 Ark. 566; 19 Cyc. 1435. American Criminal Law (Desty) § § 88a-113a; 1 Bishop, New Criminal Law, § 38.
Under the authorities above cited the previous unchastity of the prosecutrix may be shown as a matter of defense, and the witness could not refuse to testify on the ground that he would incriminate himself, because, as we have seen, he was guilty of no indictable offense because he had had sexual intercourse with the prosecutrix. It is well settled that a witness is not bound to make answer to a question which will subject him to disgrace or tend to degrade him unless the evidence is material to the issue on trial, or unless it tends to impeach his credibility under principles which it is not necessary here to discuss. From what we have said above, it is apparent that the evidence was material to the issue on trial, and the witness was therefore bound to testify as to the acts of sexual intercourse between himself and the prosecutrix. The action -of the court in stating that the witness was not bound to testify as to his acts of intercourse with the prosecutrix had a tendency to affect the credibility of the witness before the jury, and therefore was necessarily prejudicial to the rights of the defendant; for the testimony of the witness was a material issue in the case, and the facts testified to by him were relied on by the defendant as a defense to the prosecution. For this error the judgment must be reversed and the cause remanded for a new trial. | [
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Frauenthal, J.
This was an action upon a note originally instituted in the circuit court by C. W. Dodson against F. W. Miles and the other makers thereof. The note is a negotiable instrument for $575.25, dated August 20, 1903, and due January 1, 1905, payable to the order of E. H. Smith. The plaintiff claimed that he was an innocent purchaser of the note. The defendants alleged payment of the note, and that plaintiff had acquired it after its maturity ánd after notice that it had been paid. They also alleged that the note had been assigned by said E. H. Smith to Dodson & Sons, a partnership, of which the plaintiff was a member, as collateral to secure a principal note executed by said Smith to said partnership; that a great many other notes and shares of stock had at the same time been transferred to said partnership as collateral to secure said principal note, and that the partnership had collected on the other collateral a sufficient amount to pay the principal note. Without objection, the cause was transferred to the chancery court, and, by the consent of all parties, that court appointed a master to make and state an account of all payments which had been made and all sums which had been collected on all said collateral notes and shares of stock which had been transferred by said Smith to Dodson & Son, and also of all payments made by the defendants upon the note involve^ in this suit. Testimony of a number of witnesses was taken by the master relative to these matters, and he made a report in which he set out the various notes and shares of stock which had been transferred by said Smith to Dodson & Son to secure his principal note to them, and also the various sums which had been collected thereon. From this he found that, there was still due and unpaid on said note executed by Smith to Dodson & Son the sum of $1,781.89. The master further found that in March, 1904, the defendant Miles had paid to said Smith the full amount of the note herein sued on. He thereupon reported that plaintiff was not entitled to recover on said note. The chancellor approved the findings of fact made by the master, but overruled the conclusion of law at which he arrived. He found that the plaintiff was an innocent purchaser of the note before its maturity, and thereupon rendered judgment in his favor for the amount thereof.
It appears that on or about September 1, 1903, said E. H. Smith became or was then, indebted to Dodson & Son in the sum of $7,000, and executed his note therefor to them. In order to secure the payment of that note, he transferred to Dodson & Son on the same day a number of notes of various parties which were payable to him and also some shares of stock in two or more corporations. Amongst the notes thus transferred as collateral to Dodson & Son was the note upon which this suit is instituted. At the time of making said transfers, Smith also executed a written power by which he authorized said Dodson & Son, or their assigns, to sell said collaterals, or any of them, upon default being made in the payment of said principal note executed by him to them. The testimony tended further to prove that shortly afterwards Dodson & Son placed these collateral notes in the hands of a firm of lawyers for collection. These attorneys testified that they used every reasonable effort to collect these notes and succeeded in collecting about $1,000 thereon by August, 1904. On September 1, 1904, Dodson & Son had a settlement with said Smith of the collections which had been made by them upon the various collateral notes, which, being credited upon said principal note, left a balance due thereon of $6,000. In renewal of the balance thus found due upon said note, Smith, on said day, executed to Dodson & Son his note for. $6,000, due January 1,1905. The note herein sued on, which had been transferred as collateral to secure the payment of the original note for $7,000, was still retainned by Dodson & Son as collateral to secure the payment of the renewal note for $6,000. Some of the other collateral notes were also retained by them, and other notes were transferred to them as collateral for the payment of the renewal note. About that time Dodson & Son borrowed from, or became indebted to, the Ouachita Valley Bank in the sum of $4,346.62, and executed their note to it therefor, and in order to secure same transferred to the bank the said note for $6,000 executed to them by Smith, and also the collateral notes attached thereto, amongst which was the note herein sued on. Later, and in February, 1.905, Dodson & Son having made default in the payment of their note to the bank, the collateral notes were sold by the bank under the power granted by Smith to Dodson & Son and their assigns. At this sale the plaintiff became the purchaser of the note herein sued on. The testimony upon the part of the defendant tends to prove that in March, 1904, F. W. Miles paid the amount 'of the note herein sued on to said Smith for the purpose of satisfying it. The note was not then in the possession of Smith, but was then held by Dodson & Son, who had no knowledge of this payment. In excuse for or explanation of paying the note to Smith without knowing that he was the holder thereof, or for failing to demand the note at the time of its payment, Mr. Miles testified that “it was a slack piece of business, I guess, being the only reason I know.”
It is urged by counsel for defendants that the plaintiff purchased the note from the bank in February, 1905, which was after its maturity, and, on that account, was not an innocent purchaser thereof, but took it subject to all defenses that the makers had against the original payee, Smith; and they cite, to sustain this contention, Nisbett v. Brown, 30 Ark. 590, and Sorrells v. McHenry, 38 Ark. 127. But under the facts of this case we do not think that the makers can resist the payment of this note by any defense which they might" interpose to it in the hands of the original payee, even if it should be held that the plaintiff obtained the pote from the bank after its matujrity. The note had been transferred by the payee, Smith, to Dodson & Son in August, 1903, long prior to its ma turity. If Dodson & Son were at that time holders thereof for value in the due course of business, then any subsequent purchaser thereof from them, even though he obtained it after maturity,, would be protected against any defense which the makers might have or be entitled to assert against the original payee. As is said in 1 Daniel on Negotiable Instruments, p. 801: “As soon as the paper comes into the hands of a holder unaffected by any defect, its character as a negotiable security is established; and the power of transferring it to others with the same immunity which attaches in his own hands is incident to his legal right and necessary to sustain the character and value of the instrument and to protect the bona fide holder in its enjoyment.” And the author further says: “If the holder acquired the paper after maturity from one who became a bona fide holder- for value and without potice before maturity, he is then protected by the strength of his transferrer’s title.” 1 Daniel on Negotiable Instruments, p. 776; Woodmen v. Churchill, 52 Me. 58; Hogan v. Moore, 48 Ga. 156; See also note to Y. M. C. A. Gym. Co. v. Rockford Nat. Bank, 46 L. R. A. 784.
.At the time the note was transferred to Dodson & Son it was assigned by Smith as collateral security for his debt to them. Dodson & Son were protected as innocent holders of this negotiable note, whether it was transferred to them to secure an indebtedness which was then incurred by Smith to them or a preexisting indebtedness. In the recent case of Haldiman v. Taft, ante, p. 45, cited by this court, the rule is thus stated: “One who takes negotiable paper before maturity' in payment or as security for an antecedent debt, and, without notice of any defect, receives it in due course of business, and is a holder for value free from any equities of the maker or indorser.” Brown v. Calloway, 41 Ark. 418; Winship v. Merchants Bank, 42 Ark. 22; Tabor v. Merchants Nat. Bank, 48. Ark. 458; Evans v. Speer Hdw. Co., 65 Ark. 204; Exchange Nat. Bank v. Coe, 24 Ark. 387; White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105. According to the undisputed evidence, Dodson & Son received the note herein sued on as collateral before its maturity in the due course of business and without any notice of any defense thereto; in fact, at that time there was no defect in or defense to this note. Thereafter Dodson & Son transferred the note to the bank, which, in February, 1905, transferred it to plaintiff, who was, in fact, a member of the firm of Dodson & Son, and in effect the note was thus returned to the original assignee by the bank. But whether we shall consider the plaintiff as a purchaser of the note from the bank or only as retaking it from the bank after payment of the indebtedness of Dodson & Son, to it and thus obtaining it as collateral to the note for $6,000 given to them by Smith, which he also obtained from the bank, the rights of the plaintiff would be the same, and he would still be protected as an innocent holder of the note herein sued on. The note was constantly, after its assignment by Smith, the payee, in the hands of a holder who had acquired an interest in it, and such holder was alone entitled to the payment of it. After such transfer by the payee, the maker was not authorized to pay same to the payee of the note. He could only make a valid payment to the holder of the note; and if he made a payment to one who at the time was not the holder of it, he did so at his own risk. Block v. Kirtland, 21 Ark. 393; Jenkins v. Shinn, 55 Ark. 347; State Nat. Bank of St. Louis v. Hyatt, 75 Ark. 170; Bank of Batesville v. Maxey, 76 Ark. 472; Winer v. Bank of Blytheville, 89 Ark. 448; Buchanan v. Hicks, 98 Ark. 370.
In March, 1904, the defendants claimed that Miles made payment of the note herein sued on to Smith, the payee. At that time Smith was not the holder or owner of the note. Long prior to that time he had transferred it to Dodson & Son, from whom plaintiff acquired it, and thereby plaintiff acquired all rights and interest which Dodson & Son then had in the note. The payment made by Miles to Smith, therefore, did not result in the payment of the note unless the principal note, which had been executed by Smith to Dodson & Son, has also been paid. This question of fact as to whether or not the principal note for $6,000 executed by Smith to Dodson & Son has been paid, was, by consent of the parties, referred to a master. He took the testimony of all persons who had connection with the transaction, and who had made collections on the collaterals which had been put up to secure that note. He stated an account of these collections, and found that there was still due and unpaid on this principal note the sum of $1,781.89. This finding was approved by the chancellor. The master who made this finding of fact was appointed by consent of the parties. This court has held that the finding of fact of a consent master is as conclusive as the finding of a jury- — that is, if there is any legal evidence to sustain it, the finding must stand. Greenhaw v. Combs, 74 Ark. 336; McDonald v. Kenney, 101 Ark. 9. Upon an examination of the evidence relative to this issue, we are of the opinion that there is sufficient legal evidence to warrant this finding of fact made by the master and approved by the chancellor. It follows that the chancellor was right in rendering judgment, in favor of plaintiff for the note sued on. The decree is accordingly affirmed. | [
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Hart, J.
The defendant, W. A. Compton, has appealed from the judgment of conviction for the crime of embezzlement. The indictment, caption and formal parts omitted, is as follows:
“The said W. A. Compton in the county and State aforesaid on the 4th day of October, 1907, then and there being a duly elected, qualified and acting member of the Board of Directors of Special School District No. 1 of Marianna, which said school district is a corporation organized under the laws of the State of Arkansas, and the said W. A. Compton, then and there being the duly elected and acting secretary of the board of directors, and then and there as such secretary having authority under the law to draw warrants on the county treasurer of Lee for money payable out of the funds of said school district, did draw a warrant on the county treasurer of Lee County, payable to himself, out of the funds of said school district, which said warrant, drawn and signed by the said W. A. Compton as said secretary and also signed by the president of the board of directors of said school district, is in words and figures as follows:
“ District School Fund, District No.
No. 10-4-1907.
Treasurer of Lee County, Arkansas:
. • “Pay to W. A. Compton, Sec’y, or order the sum of one hundred and fifty..............................100 dollars out of the Special School District Fund, Marianna.
“For fee to S. H. Mann in school cases.
“H. B. Derrick, Jr., Pres.
“W. A. Compton, Sec’y.
“Directors.”
“And then and there he, the said W. A. Compton, having said warrant in his possession, by reason of his said office as secretary of said board of directors, the said warrant being payable to him, the said W. A. Compton, secretary, or order, did indorse the same in blank as secretary, on the back thereof, and then and there did present and deliver the same to the Bank of Marianna, and then and there the said Bank of Marianna did present said warrant, drawn as aforesaid, to the treasurer of Lee County, and then and there did receive from the said treasurer of said Lee County $150 out of the funds belonging to the Special School District No. 1 of Marianna, and then and there he, the said W. A. Compton, by virtue of his said office did receive from the Bank of Marianna the sum of $100 of said sum of $150 received from the Bank of Marianna, of the treasurer of Lee County, Arkansas, of gold, silver and paper money, the property of the said school district, of the value of $100, and then and there unlawfully and feloniously did embezzle and convert the same to his own use, and so, the said W. A. Compton, the sum of $100, of gold, silver and paper money, of the value of $100, the property of Special School District No. 1 of Marianna, unlawfully and felonioxxsly did steal, take and carry away, against the peace and dignity of the State of Arkansas ”
No demurrer to the indictment was filed, but the defendant filed a motion in arrest of judgment. The statute provides that the only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. Kirby’s Digest, § 2427; Ince v. State, 77 Ark. 426.
Counsel for defendant rely for a reversal of the judgment chiefly upon the ground that there is no statute under which the indictment in this case could be drafted. They claim that no offense is charged under any of the sections of our statute relating to embezzlement.
Section 1887 of Kirby’s Digest reads as follows: “If any clerk, apprentice or servant, employee, agent or attorney, of any private person, or of any copartnership, except clerks, apprentices, servants and employees within the age of sixteen years, or any officer, clerk, servant, employee, agent or attorney, of any incorporated company, or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make way with, or secrete, with intent to embezzle or convert to his own use, without the consent of his master or employer, any money, goods or rights in action, or any valuable security or effects whatsoever belonging to any other person, which shall have come to his possession, or under his care or custody, by virtue of such employment, office, agency or attorneyship, he shall be deemed guilty of larceny and on conviction shall be punished as in cases of larceny. ”
It is contended that the allegations of the indictment do not bring the defendant within the category of persons who may be guilty of embezzlement under this section of our statute. Embezzlement is purely a statutory offense. While our statute concludes by providing that the person so committing an act of embezzlement shall be deemed guilty of larceny, yet embezzlement is regarded as a separate and distinct crime, and is so treated in our decisions. It is evident that the allegations of the indictment do not bring the defendant within the class of persons in the statute designated as clerks, apprentices or servants of any private person or copartnership, or officers, agents, clerks or servants of any incorporated company. The particular inquiry then is, what is the meaning of the clause, “or any person employed in any such capacity?” It is a fundamental rule of construction “that every statute, where it is practicable, must be so construed that every part and provision contained in it may have some operation. ” Dunn v. State, 2 Ark. at p. 250. In like manner, the section in question is to be construed as a whole, and the meaning to be attached to any particular word or clause is to be ascertained from the context. In other words, “a statute,, must receive such reasonable'construction as will, if possible, make all its parts harmonize with each other, and render them consistent with its scope and object. ” 2 Lewis' Sutherland, Stat. Con., (2 ed.) § 368. This rule of interpretation was recognized and applied by the court in the case of Matthews v. Kimball, 70 Ark. at p. 458. In the discussion of the application of the rule the court quoted approvingly from Black on Interpretation of Laws, p. 143, as follows: “The general object of an act sometimes requires that the final general term shall not be restricted in meaning by its more specific predecessors.” Continuing, the court quoted the following from Sutherland, Stat. Const., p. 360: “ The enumeration of particular things is sometimes so complete and exhaustive as to leave nothing which can be called ejusdem generis. If the particular words exhaust a whole genus, the general words must refer to some larger genus. ” So, too, in the case of Wallis v. State, 54 Ark. 611, in discussing the rule of ejusdem generis, the court said:
“Where an act attempted to enumerate the several species of a generic class, and follows the enumeration by a general term more comprehensive than the class, the act will be restrained in its operation because it is discerned that the Legislature so intended, but where the detailed enumeration embraces all the things capable of being classed as of their kind, and general words are added, they must be applied to things of a different kind from those enumerated. For the rule does not require the entire rejection of general words, and is to be used in harmony with the elemental canon of construction that no word is to be treated as unmeaning if a construction can be found that will preserve it and make it effectual. ”
This was an embezzlement case, and the court held: (quoting from syllabus): “ The statute defining the crime of embezzlement by ‘any carrier or other bailee’ is not confined to bailees of the generic class ‘carriers,’ but embraces all bailees.”
In the application of the rule to the present case, we think that the words, “in any such capacity” refers to the relation or position of the person employed and not to the class of persons who employed him. Any other construction would render the clause meaningless; for the statute by an enumeration in detail has already exhausted the classes of persons who might be guilty of embezzlement of the property of a private person, copartnership or private corporation. The general words “of any person employed in any such capacity” must be given a meaning outside of the classes indicated by the particular words, or we must say that they are without meaning as used in the section in question, and thereby sacrifice the general to preserve the particular words. Therefore, we are of the opinion that the words, “any person employed in any such capacity” mean any person employed in the capacity of officer, agent, servant, etc. When so construed, section 1837 does not limit the persons who may be guilty of embezzlement to those employed by private persons, private corporations or partnerships, but includes as well any person employed in the capacity of agent, or servant, etc.
The indictment in question alleges that the defendant was secretary of the school board, and that as such he had authority to draw warrants on the treasurer of the county payable out of the funds of the school district; that he did draw a warrant on the county treasurer payable to himself, and that the same was also signed by the president of the board. The warrant is set out in the indictment, and shows that it was drawn to pay S. H. Mann for legal services due him by the school board. This is sufficient to show the trust relation of the defendant to the school board, and that he was acting in the matter for the board. Hence the allegations of the indictment bring him within the class of persons named in the statute, viz: a person acting in the capacity of agent. The indictment also alleges in direct terms that the defendant received one hundred dollars of the money belonging to the school district and embezzled it. It is next insisted that the indictment is void because it does not allege that the funds came into the possession of the defendant by virtue of his agency or employment. In our judgment the allegations of the indictment show that the defendant was an agent within the meaning of section 1837 of Kirby’s Digest. Hence the objection amounts to no more than to urge that the money did not come into the defendant’s hands, to use the language of the statute, “by virtue of such employment or office.”
In this regard the indictment, after alleging the relation of the defendant to the school board, continues as follows: “and then and there he, the said W. A. Compton, having said warrant in his possession by reason of his said office as secretary of said board of directors, the said warrant being payable to him, the said W. A. Compton, or order, did indorse the same in blank as secretary on the back thereof, and then and there did present and deliver the same to the Bank of Marianna and then and there the said Bank of Marianna did present said warrant to the treasurer of Lee County, and then and there did receive from the said treasurer of said county $150 out of the funds belonging to the said Special School District No. 1 of Marianna, and then and there he, the said W. A. Compton, by virtue of his said office did receive from the Bank of Marianna the sum of $100 of said sum of $150 received,” etc.
In determining a similar contention in the case of State v. Scoggins, 85 Ark. 43, the court said: “The indictment after alleging the relation of appellee to the railway company as that of ‘agent’ says: ‘And having then and there in his custody and possession as such agent as aforesaid.’ These words are equivalent to charging that the funds alleged to have been embezzled came into the custody and possession of appellee by virtue of such employment as agent or by virtue of his agency. Words used in an indictment must be construed according to their usual acceptation in common language. Section 2242, Kirby’s Digest. When we speak of one holding funds ‘as agent,’ every one understands that the words ‘as agent’ describe the relation in which, or by which, the funds are held. When these words ‘as agent’ are used in this connection, they are not descriptio personae at all, but they tell how the funds are held. In the usual acceptation, the meaning can be nothing else than that appellee was in possession of the funds, and such funds had come into ‘his possession or under his care or custody by virtue of his employment as agent.’ The language of our statute is ‘which shall have come to his possession, or under his care or custody, by virtue of such employment or office;’ and the exact language of the statute was followed in the indictment. In express terms it is alleged that ‘the said W. A. Compton, by virtue of his said office, did receive from the Bank of Marianna the sum of $100 of said sum of $150,’ etc.”
As stated in the case of State v. Costin, 89 N. C. 511 “ The possession and care are not confined to such as came in the ordinary course of business, but as well such as came by virtue of the relation.” Continuing the court said: “The words ‘by virtue’ are very broad and serve well to effectuate the object for which they were employed. Hence it has been held, in construing a statute similar to the one under consideration, that where the thing embezzled came into the possession of the servant, out. of the ordinary course of employment, in pursuance to a special direction from the master to receive it, the act came within the meaning of the statute ” Therefore, it can not be said that the indictment does not allege that the money came into the possession of the defendant “by virtue of such employment or office” and in consequence does not charge the offense of embezzlement under the section of our statute under consideration. The proof shows that it was the custom of the president of the school board to sign warrants in blank, and for the defendant to fill in the warrants for the proper amount; that the board only owed Mann $50, and that the defendant did not have authority to draw a warrant for $150, as it is admitted he did do; and that he did not have authority to receive $100 of the amount of said warrant. Consequently, counsel for defendant contend that the defendant, having acted beyond the scope of his authority in drawing the warrant for a greater amount than he was authorized by the school board, and also in receiving the $100, did not receive the money by virtue of his agency or office.' In deciding a precisely similar question in the case of People v. Gallagher, 100 Cal. 466, the court held: (quoting from syllabus):
“1. Where the secretary of a corporation receives blank checks properly signed by the corporation’s officers, with authority to fill them up in amounts aggregating a certain sum, and to draw the money and pay the creditors of the corporation, but he fills them up for larger amounts than he was authorized to insert, and draws the money and converts it to his own use, he receives the money ‘by virtue of his employment’ as agent of the corporation, and is guilty of embezzlement. ”
“2. If an agent obtains the money of his principal in the capacity of an agent, but in a manner not authorized, and fraudulently converts the same to his own use, he receives it ‘in the course .of his employment’ as agent, and is guilty of embezzlement. ”
The court in its opinion quotes from Bishop as follows: “That in reason, whenever a man claims to be a servant while getting into his possession by force of this claim the property to be embezzled, he should be held to be such on his trial for the embezzlement. Why should not the rule of estoppel known throughout the entire civil department of our jurisdiction apply in the criminal? If it applies here, then it settles the question,” etc. Bishop on Crim. Law, (3 ed.) § 367. The court adds that in the seventh edition of the same work, like language, with some additions, is used at § 364 of volume 2.
In discussing the same question, in the case of State v. Costin, supra, the Supreme Court of North Carolina said: “He (referring to the servant) is estopped in this respect. He can not be allowed thus to take advantage of his own wrong and evade the law. ” This is an application of the maxim of law, recognized and established, that no man shall take advantage of his own wrong. The application of the doctrine of estoppel in criminal cases was recognized by this court in the case of Fleener v. State, 58 Ark. 98. See also Smith v. State, 53 Tex. Crim. 117, 15 Am. & Eng. Ann. Cas. 435; Ex parte Hadley, 31 Cal. 108; Ker v. People, 110 Ill. 629. The warrant set out in the indictment was introduced in evidence.
S. H. Mann testified: “I was employed by the Special School District as counsel in litigation had by the board against the contractors of the school building. I received $50 on March 22,1906. The next remittance was for $55 was in a letter dated June 2,1908. Fifty dollars was the balance of my fee and $5 was my railroad fare. That is all I ever received from the school district, and was the full amount of the fee to which I was entitled.”
H. B. Derrick testified for the State:
“I was a member of the Board of Directors of Special School District of Marianna for a number of years, including the years 1906, 1907 and 1908. I was elected president of the board in 1907. The defendant, Compton, was elected secretary of the board in May, 1906. I was secretary of the board in March, 1906, preceding the defendant. When the question first arose about the school building, I was secretary of the board, and S. D. Johnston was president, and we employed Judge Compton and Mr. Mann to look after the suit. We were to pay Judge Compton $50 and Mr. Mann $100. This litigation was the only litigation we ever had. Fifty dollars of Mr. Mann’s fee was paid in advance, and Judge Compton got his fee of $50 in advance. (Witness refers to page 50 of the school record, dated March 30, 1906). I gave Judge Compton a warrant for the money for him and Mr. Mann. (Witness identified the warrant dated October 4,1907, described in the indictment). This warrant shows that it was issued on the 4th day of October, 1907, to pay Mr. Mann for his services. The witness also identified warrant for $150 dated June 2, 1908, which is shown at the bottom of page 67 of the transcript.
On cross examination the witness stated that he would sign warrants in blank most of the time. Whenever the district had any bills to pay, the secretary would come to him and he would give him a warrant signed in blank. “We would both sign them. When I would sign them in blank, he would go and raise them.” The warrant named in the indictment had no evidence of any erasures, but the defendant raised them after witness signed them. Witness knew that the defendant was going to fill them in. Defendant would ask witness for a signed warrant, and he would give it to him whenever there were any bills to pay. Witness states that Judge Compton was never employed in any other litigation but the school house case. Other evidence showed that the defendant indorsed the warrant to the Bank of Marianna for collection. That bank collected the money from the Lee County Bank as agent of the treasurer of Lee County. The defendant received the money from the Bank of Marianna after it was collected. Warrants were introduced in evidence showing a payment to S. H. Mann, retainer fee, $50, and to W A. Compton, retainer fee, $50. Warrants showing payment of the costs of the suit were also introduced. The defendant introduced in evidence the receipted bills of the sheriff for $11.20 and that of the clerk for $52.65 for costs in the school house case. A mere recitation of the evidence is sufficient to show that tbe jury were warranted in finding the defendant guilty. The defendant offered to introduce in evidence page 52 of the records of the school board. The record is dated February 15, 1906, and in substance shows that the defendant was to receive as a fee $75 if the controversy with the contractors about the school house was settled without suit, and if suit was brought, he was to receive one hundred dollars. The court refused to allow the introduction of the record, and counsel for defendant insist that the ruling of the court is erroneous. We can not agree with them. The defendant did not offer to connect the record with the transaction under consideration. The warrant described in the indictment was drawn in favor of the defendant .for the fee of S. H. Mann, and was drawn for $150. At that time only $55 was due Mann, and he only received that amount. The defendant received the whole amount of the warrant. He has not introduced any evidence tending to show that he used any of the money in payment of any amount alleged due himself by the school district. In the absence of such evidence, the warrant on its face showing that it was for the fee of S. H. Mann, we do not think the record in question was competent evidence. It is next urged that it should have been admitted as evidence tending to contradict Derrick. Such contradiction, however, for the reasons above stated, would have been on a collateral matter and consequently immaterial.
The instructions given by the court were contradictory, but it follows from the views we have hereinbefore expressed that the instructions given in behalf of the State were correct. It can not matter to the defendant that the instructions asked by him were not correct, or that the jury refused to follow them; for he was not prejudiced thereby. All he had a right to ask. was that the case should be submitted to the jury upon correct instructions and upon competent evidence. This was done, and the judgment must be affirmed.
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Frauenthal, J.
The appellee, E. A. Tonn, in March, 1909, moved his home from New London, in the State of Wisconsin, to Mena, in the State of Arkansas. He was the owner of certain personal property, consisting of household goods, farming implements, and 250 bushels of potatoes, which he desired to ship from New London to Mena. He intended to use these potatoes for planting purposes in his new home in Arkansas, and applied at New London to the station agent of the Chicago & Northwestern Railroad Company for emigrant rates on his personal effects shipped from that point to Mena. He was informed by said agent that the rate was 45 cents per hundred weight in carload lots of 20,000 pounds. He thereupon tendered his property to the railroad company for such transportation, which was received and accepted by the initial carrier, and a bill of lading was duly issued by it therefor upon that rate. Appellee then paid to the initial carrier the entire freight charges, amounting to $90. Under this bill of lading the property was delivered to appellant as a connecting carrier, who transported same to Mena.
Upon the arrival of the property at Mena, the agent of the appellant at that station refused to deliver the same to appellee, claiming that the freight charges thereon which had been paid by appellee were incorrect, and that he should pay additional freight charges of $200.50. This the appellee refused to pay. Thereupon, he instituted an action in replevin against appellant for the possession of the property, but without giving the bond required to obtain an order of immediate delivery. In a few days after bringing this suit, he paid the additional freight charges demanded by the appellant, towit, $200.50, and obtained possession of the property. Thereafter, he filed an amended complaint 'in which he alleged all of above facts. He also alleged that said shipment consisted of household goods, implements and potatoes, constituting emigrant movables; that the initial carrier and appellant had fixed the tariff rates thereon from New London to Mena at 46 cents per hundred weight, and that the said tariff had been duly published and filed with the Interstate Commerce Com mission in manner prescribed by law, and was the lawful charge for such transportation. He further alleged that since filing the original complaint he had discovered that he was in error as to the amount of the tariff chargeable by law upon said shipment, and that the correct charges thereon were $92 instead of $90, the amount paid by him; and that the amount of the additional charges should only have been $2 instead of $200.50. In this amended complaint he sought a recovery for the sum of $198.50, which he claimed was the excess of charges exacted from him for the carriage of said property. He also asked for the recovery of damages for the detention of the property, and for a reasonable attorney’s fee.
Thereupon appellant filed an answer to this amended complaint, in which was also incorporated a demurrer. The demurrer was based upon the ground that the amended complaint did not state facts sufficient to constitute a cause of action; and that the court did not have jurisdiction to hear and determine the cause. In its answer, appellant denied each allegation of the amended complaint. It denied that the-the potatoes constituted emigrant movables, and that they were seed potatoes to be used for planting, but alleged that they were shipped for commercial purposes. It alleged that the rate on potatoes shipped for commercial purposes was higher than when shipped as emigrant movables, and that appellee had wrongfully shipped same as emigrant movables in order to avoid paying this higher and proper rate thereon. It also alleged that it had committed error in demanding and receiving from appellee for said shipment the additional freight charge of $200.50; that the erroneous excess amounted to $45.44; and it paid that sum into court for the benefit of appellee. In effect, the appellant alleged that the potatoes were shipped for commercial purposes, and that the the proper and lawful rate chargeable for the transportation thereof, together with the rate chargeable on the other property shipped, was much greater than the sum of $92 as claimed by the appellee.
Upon a trial of the case, the lower court held in effect that appellant had wrongfully exacted from appellee the sum of $198.50 for the transportation of said property, and directed a verdict in favor of appellee for that sum. Appellee then filed a motion asking for the allowance to him of a reasonable attorney’s fee, which the court granted; and fixed the amount of said fee at $50, rendering judgment therefor against appellant.
The original complaint filed in this case sought the recovery of certain nersonal property, and the cause of action therein set out was one of replevin. Subsequently, an amended complaint was filed in which a recovery was sought, not for the possession of the property, but of a stated sum which it was alleged the appellant had wrongfully collected from appellee for the transportation of his property.
It is urged by counsel for appellant that the cause of action set out in the amended complaint was distinct and different from that set out in the original complaint, and was therefore an entirely new cause of action which substantially changed the claim upon which the suit was originally instituted. The appellant, however, did not ask that the cause of action, as set out in the amended complaint should be stricken out, but, instead of this, it joined issue thereon by filing an answer to the amended complaint. By this action, the appellant waived its objection that'the amended complaint set out a new cause of action. Kirby’s Digest, §' § 6081, 6082. The amended complaint set out a distinct cause of action, and was equivalent to bringing a new suit. If a new suit had been brought by the appellee, setting up the cause of action mentioned in the amended complaint, the appellant could have waived the issuance and service upon it of a summons thereon, and could have entered its appearance to that suit. This it could do by filing an answer without question. In like manner it could enter its appearance to the amended complaint, which set up a new cause of action, by failing to move to strike such cause from the complaint and by filing an answer thereto. Appellant did this in this case. By so doing, it entered its appearance to the new cause of action set out in the amended complaint, just as to a new suit. As is said in the case of Wood v. Wood, 59 Ark. 446: “The same result was reached as would have been accomplished had a new and original complaint been filed. In that case the appellee could have entered his appearance, as he did, and waived summons, and the same end would have been obtained as was reached by the filing of the amendment. The legal effect of the two proceedings is the same.” 1 Enc. Pl. & Pr. 573; Ferguson v. Carr, 85 Ark. 246; Greer v. Vaughan, 96 Ark. 524.
By the filing of the amended complaint, appellee in effect abandoned the action' of replevin for the recovery of the property, and based his action entirely upon allegations seeking the recovery of money which had been erroneously or wrongfully collected from him, as for money had and received. The appellant entered its appearance to that action by filing its answer and joining issue on the merits of the case set out in said amended complaint, and it thereby waived any objection théreto.
It is urged by appellant that the amended complaint is an action by a shipper to recover from a carrier an overcharge of a freight rate upon a shipment which moved in interstate commerce, and on that account the State court did not have jurisdiction to entertain the suit. This contention is made upon the ground that exclusive jurisdiction has been confided to the Interstate Commerce Commission to fix the amount of the reasonable rates which are charged on property shipped in interstate commerce; that a suit for the recovery of an overcharge of freight is in effect an action based upon a freight rate which it is claimed is unreasonable; that by virtue of the Interstate Commerce.Act of February 4, 1887 (U. S. Comp. Stat., 1901, p. 3169), as amended by the act of Congress of June 29, 1906 (U. S. Comp. Stat. Supp. 1907, p. 909), application must be first made to the Interstate Commerce Commission to determine whether or not an unreasonable and excessive charge has been made for the transportation, and the amount thereof, before a suit can be brought for its recovery.
In the case of Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, it was held that, “a shipper can not maintain an action at common law in a State court for excessive and unreasonable freight rates exacted on interstate shipments where the rates charged were those which had been duly fixed by the carrier according to the Interstate Commerce Act, and had not been found to be unreasonable by the Interstate Commerce Commission.” But this is not the character of the case which is here presented. Briefly stated, the action herein brought is founded upon the following undisputed evidence:
The property involved in this shipment made by appellee was delivered to and accepted by the common carrier as emigrant movables. Amongst the property there were 250 bushels of potatoes which were to be used solely for planting and not for sale or commercial purposes. The appellee had purchased land near Mena, Ark., his new home, thirty acres of which were in cultivation, and in this he intended to plant these potatoes. It would require eight bushels of potatoes per acre to plant this tract, and appellee shipped with his household effects these potatoes as seed potatoes. The freight rate fixed by the initial carrier and appellant for the transportation of emigrant movables from New London to Mena was 46 cents per hundred pounds, and this tariff had been duly published and filed with the Interstate Commerce Commission, and had become the rate lawfully chargeable for -the carriage of such property, in full compliance with the Interstate Commerce Act. The term, “emigrant movables,” according to this tariff, applied to household goods, implements of calling and seeds for planting purposes. General merchandise and articles for sale or commercial purposes were excluded from this tariff. The potatoes included in this shipment made by appellee, being for planting purposes, were therefore seeds for planting within the meaning of this tariff for emigrant movables. The rate named in this tariff for emigrant movables applied to seed potatoes under the undisputed evidence, and this constituted the lawful rate for the transportation.
It is urged by counsel for the appellant that the rate for freight charges on any property is determined by the classification made thereof, and, inasmuch as the Interstate Commerce Commission must first determine the reasonableness of the rate, it must also determine the classification of the property. But we do not think that the question of the reasonableness of the rate upon or classification of this property is involved in this case. The rate for emigrant movables was duly fixed and published by the carrier, as provided by the Interstate Commerce Act, and was therefore found reasonable by the Interstate Commerce Commission. The rate thus named in the tariff became the rate fixed by law. This rate was applicable to potatoes used for planting purposes, and the potatoes which were shipped by appellee were this character of potatoes. The question involved in this case was not one of classification of property, but simply and solely one of identity thereof. It is not claimed that the rate named in the tariff was not applicable to the household goods and farming implements included in this shipment. It would be necessary to identify such items of property as household goods and implements of calling in like manner as it would be necessary to identify the potatoes as seed potatoes. The determination of the identity of the property as being of a certain kind and character would not constitute a classification thereof, nor would it fix thé rate chargeable thereon. The classification in the tariff sheet had been made and published by the carrier and filed with the Interstate Commerce Commission and therein potatoes for planting were classed as emigrant movables. In fact, the rate named in this tariff for emigrant movables is rather a certain rate named upon a certain commodity, and the only question to be determined is whether or not the property shipped constituted that commodity. The rate applicable to the transportation of seed potatoes was therefore fixed in manner prescribed by the Interstate Commerce Act at 46 cents per hundred pounds, and this constituted the lawful and published rate thereon from New London to Mena. In demanding a greater amount the carrier erroneously collected more than it was entitled to receive.
The suit instituted by this amended complaint is one to recover the amount thus erroneously collected from the appellee,-and it is not a suit to recover for an unreasonable rate that was fixed or exacted. It was the intention of the agent of appellant to collect from appellee only the amount of the rate actually named in the published tariff for the carriage of this property, and any sum which it actually collected in excess of such rate was erroneous. It has been well settled, we think, that a shipper has a right to have his property transported by a common carrier at the rate fixed by law, and is entitled to recover back all charges collected from him in excess of such rate.
In the case of Lanning- Harris Coal & Grain Co. v. St. L. & S. F. Rd. Co., 15 I. C. C. Rep. 37, it was said: “It seems fairly certain that, in case of the exaction of a rate higher than the published tariff, the shipper may bring his suit in court in the first instance to. recover the same.” Barnes on Interstate Transportation, § 408-d; Chapman & Dewey Lbr. Co. v. Jonesboro, L. C. & E. Rd. Co., 97 Ark. 300; 2 Hutchinson on Carriers, § 805.
Where the amount collected for the transportation of property by a carrier is in excess of the rate fixed by law, the shipper may recover such excess in any court of the State having jurisdiction of the amount involved, to the same extent as in an action for the recovery of money had and received. Chicago, R. I. & P. Ry. Co. v. Lena Lbr. Co. 99 Ark. 105; St. Louis S. W. R. Co. v. Gramling, 97 Ark. 353; Missouri & N. Ark. Rd. Co. v. Wood, 100 Ark. 312. See also St. Louis & S. F. Rd. Co. v. Ostrander, 66 Ark. 567.
It follows that, under the undisputed evidence adduced upon the trial of this case, appellee was entitled to recover the sum of $198.50 which was paid by him in excess of the lawful published rate applicable for the transportation of this property from New London to Mena.
It is claimed by counsel for appellee that he is entitled to recover a reasonable attorney’s fee herein by virtue of sections 6666 and 6621 of Kirby’s Digest. But it is conceded by appellee that at the time he demanded this property from the carrier he had only paid the sum of $90 for the transportation charges, and that according to the lawful rate chargeable thereon there was due the sum of $92 for the transportation thereof. Until he paid or tendered the full amount of the freight charges, the appellee was not entitled to the possession of the property, and the appellant was not liable for any penalty prescribed by the above statutes for refusing to deliver the same to him. When this additional sum of $2 was paid by appellee for the carriage of the property, it was immediately turned over to him.
Nor do we think that any provision of the Interstate Commerce Act, granting to a shipper the recovery of an attorney’s fee, is applicable to this case, for the reason that the right of recovery herein is not based upon any provision of that act of Congress. As before stated, the suit herein instituted is in the nature of an action for money had and received by the carrier who, by error, collected a greater amount of charges than it was entitled to receive. It is not founded upon any statute, either State or National, and does not arise from the violation of any statutory duty imposed upon the carrier. 'It is a right founded upon the common law which gives to the injured party a recovery for money had and received from him without consideration. The appellee could only be entitled to recover an attorney’s fee upon the ground that he had a right to recover a penalty from the carrier by reason of its violation of the performance of some statutory duty; and this right we do not think was covered by the cause of action set out in the amended complaint. Kansas City So. Ry. Co. v. Marx, 72 Ark. 357.
It follows, therefore, that the court erred in adjudging to appellee the recovery of an attorney’s fee. So much of the judgment as awarded to appellee the amount of an attorney’s fee is reversed and dismissed; in all other respects the judgment of the lower court is affirmed. Any amount deposited in the lower court by defendant should be credited on the judgment when paid to plaintiff. | [
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Frauenthal, J.
This is an action instituted by W. H. McLeod, the plaintiff below, to cancel a tax deed and the title of defendant derived thereunder, and to quiet plaintiff’s title to certain lands in Calhoun County. The plaintiff deraigned title to the lands back to an original grantor who in 1857 and 1858 had obtained them from the State, to whom they had been confirmed by the United States Government as swamp and overflowed lands. The lands were forfeited to the State in 1869 for the nonpayment of the taxes of 1868. On August 12, 1904, these lands were sold by the State to T. J. Hays, Henry Ezell and J. R. B. Moore; and a duplicate deed therefor was issued to them by the State on November 17, 1906, it being claimed that the original had been lost. From these parties the defendant obtained title to the lands by mesne conveyances. The chancellor found that said tax sale of the said lands for the year 1868 was void, and that the State and those holding under its conveyance acquired no title thereto. The chancellor thereupon entered a decree setting aside said tax sale and cancelling the deeds held thereunder and removing same as a cloud from plaintiff’s title to the lands. He also decreed in favor of defendant a recovery of the taxes-on said lands for the year of 1868, and also the taxes paid by defendant and those under whom he claimed for the years since their acquisition of the lands from the State, together with interest thereon.
It is not claimed upon this appeal that the chancellor erred, in finding that said tax sale and the title acquired thereunder was illegal and void; and it is conceded that plaintiff and those under whom he claims were the true owners of said lands. The sole defense now urged by counsel for defendant against the recovery sought by plaintiff is that the plaintiff is barred by laches. It is also urged that, in event the plaintiff is entitled to a decree quieting his title and cancelling the tax title under which defendant claims the lands, the chancellor erred in the amount of the taxes awarded to defendant.
It appears that the lands were purchased by defendant’s grantors from the State of Arkansas in August, 1904, and that defendant and'his grantors paid the taxes thereon for the years from 1905 to 1910; that the taxes thereon were paid by the defendant’s grantors, who acquired the lands from the State, for the first time in 1906 for the taxes of 1905, and that they had paid the taxes on the lands for a period of less than five years prior to the • commencement of this suit, which was instituted in January, 1911. From the time the lands were certified to the State under said void tax sale made for the nonpayment of the taxes of 1868 up to 1904, when they were pur chased from the State by defendant’s grantors the lands were never assessed, but they appeared as belonging to the State. During all those years, and up to the institution of this suit neither the plaintiff nor those under whom he claims paid any taxes on the lands.
It is contended that the title and claim of the plaintiff to the lands is barred by laches, because he and those under whom he claims failed to pay the taxes thereon from 1868 to the institution of this suit, and in the meanwhile the lands had greatly enhanced in value. The lands were wild and unimproved, and in the actual possession of no one. They were therefore in the constructive possession of the true owner during all this time. The true owner could be barred of his right to the lands only by limitation or by laches. It is conceded that he was not barred by limitation. The question is, then, whether he has been barred by laches by reason of having failed to pay taxes upon the lands, and in the meanwhile they had greatly enhanced in value.
In the case of Chandler v. Banks, 92 Ark. 497, it is said: “There are cases in which the owners of land had failed to pay taxes on same for many successive years, exceeding the statutory period of limitation of seven years, and another claiming the land had paid taxes thereon for such time, and in the meanwhile the land had greatly enhanced in value, and in which the court held that a court of equity will not grant the owner relief on account of laches.”
In the case of Earl Improvement Co. v. Chatfield, 81 Ark. 296, it is said: “While it is true that the length of time during which a party may neglect to assert his right and not be guilty of laches varies with the peculiar circumstances of each case, and is subject to no arbitrary rule, like the statute of limitations, yet, in the absence of some supervening equity calling for the application of the doctrine of laches, a court of chancery should and will by analogy follow the law, and not divest the owner of title by lapse of time shorter than the statutory period of limitations. ” In that case, it was further said that the payment of taxes for only five years, even with a great increase in value of the land, would not justify a court of equity in depriving the true owner of the right to have his title quieted.
In Fordyce v. Vickers, 99 Ark. 500, it is said: “The true owner of the land can not be divested of his title thereto by the mere failure to pay taxes and the enhancement of it in value. The doctrine of laches is founded upon the principle, not only that there has been a delay in the payment of taxes by the owner, indicating either that he considers his claim to the land worthless or a total abandonment of his right to the property, and in the meanwhile a great enhancement in the value thereof, but also upon the ground that the party asserting the claim to it has good reason to believe that the alleged 'rights are worthless or have been abandoned, and, acting upon such belief, has paid taxes upon the land under color of title for at least the period of time named by the statute of limitation. ”
It will thus appear that, before the plea of laches can be available to deprive the true owner of his land, it must be shown that the party claiming same and his grantors have, prior to the commencement of the suit, paid the taxes upon the land under color of title for at least seven years, the statutory period of limitation. The fact that the true owner has failed to pay taxes on the land for a period longer than seven years will not alone bar him; but it must also appear that during such period the defendant and those under whom he claims have themselves paid taxes thereon for at least seven years prior to the institution of the suit before the true owner can be declared barred by laches. The fact that the land was not assessed or the taxes thereon were paid by strangers to the suit and to the parties will not aid the plea of laches. It is essential to support such plea to show that the taxes were actually paid by the defendant and those under whom he claims for at least the period of seven years prior to the institution of the suit.
In the case at bar, the .plaintiff brought his suit to quiet his title within five years after defendant and those under whom he claims began paying taxes on the land under the tax title acquired by them from the State. Plaintiff was not barred by laches.
We think the case of Chandler v. Banks, supra, is decisive of this question. In that case it was held (quoting the syllabus): “A suit to remove the cloud upon the title of wild and unimproved lands will not be barred by laches where it was brought within four years after defendant’s tax title was acquired from the State, and where plaintiff had done nothing to indicate that he had abandoned the land except that he had failed to pay the taxes during that time.”
It is urged by counsel for defendant that the court erred in the amount of the taxes which it adjudged to him. It is contended that, the defendant being subrogated to all rights of the State by virtue of the purchase from it of the lands, the defendant is thereby entitled to all taxes for each of the years from the date of the forfeiture to the sale thereof by the State, as well as to all taxes paid by him and his grantors thereafter. But after the forfeiture of 1868 and the sale thereunder of the lands to the State, 'these lands were not assessed, and no taxes were levied against them until after they had been sold by the State to defendant’s grantors. During those years there were no taxes which were actually charged against and became liens upon the land to which the defendant could be subrogated. The only taxes assessed and charged against these lands were for the year of 1868 and for the years subsequent to the purchase from the State in 1904. For the year of 1868, and for the years subsequent to the acquisition of the lands from the State by the grantors of defendant, a levy of taxes was made and charged upon these lands. These were the only taxes against these lands to which the State asserted any right, and are therefore the only charges thereon to which the defendant could be subrogated. As was said in the case of Belcher v. Harr, 94 Ark. 221: “ The defendant has paid taxes on the lands since he acquired them from the State, and these taxes are a charge upon the lands. The taxes for the year for which each tract was sold to the State are also a charge upon each tract; and by his purchase from the State defendant became subrogated to the lien of the State for the taxes for the year for which the land sold. Defendant is entitled to a decree for these taxes and a lien therefor on the land. ” Connerly v. Dickinson, 81 Ark. 258; Files v. Jackson, 84 Ark. 587; Seldon v. Dudley E. Jones Co., 89 Ark. 234.
We find no error in the decree that was rendered by the chancellor in this case, and the same is accordingly affirmed. | [
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Wood, J.
This a suit by the appellant, Mary A. Felton, to have homestead allotted and dower assigned to her in certain real and personal property. . She is the widow of Marion Felton, deceased. At the time of his death he owned and occupied 160 acres of land, which constituted his homestead. He also owned about 193 acres of other land, twenty acres of which were well improved and adjoined the homestead on the west. The rest was unimproved. He owned personal property of the value of something more than $400, and had in the bank $550.
His children were Alice, George, Garland, Watt, Louis, Carrie and Media. Louis and Carrie were the youngest, and lived with Felton and his wife at the time of Felton’s death. After his death Carrie intermarried with one Brown, and before his death Media had intermarried with one B. F. Smith, Alice was also married. Louis and Carrie, and her husband. Brown, were made parties defendant to the suit. The defendant Louis Felton did not resist the claim of appellant Mary A. Felton. The defendant Carrie Brown and her husband filed an answer and cross complaint, in which they set up that a certain agreement had been entered into between appellant Mary A. Felton, and Louis and Carrie, by which certain of the real estate and personal property belonging to her father at the time of his death was allotted to appellant Mary A. Felton as her share, and prayed that said agreement be carried out. She made Louis a defendant to her cross complaint. Louis and Mary A. replied to the answer and cross complaint, in which they denied the agreement alleged therein, and set up that instead there was a different agreement entered into between them as to the division of the property.
The appellee Alice Lamb was the daughter of Marion Felton by a former wife, and a half-sister of Carrie Brown and Louis Felton. She intervened in the suit, claiming one-third interest in the estate of her father, Marion Felton.
Mary A. Felton and Louis Felton answered the intervention, denying that Alice Lamb had any interest in the subject-matter of the suit as one of the heirs of Marion Felton; alleged that she had received her interest by way of advancement; and that as evidence of that fact she had executed a deed of release unto the other heirs of all her interest in the estate. Alice Lamb replied to this answer, admitting that she did sign the deed of release, but alleging that same was obtained by fraud and undue influence, and that there was no consideration paid for same.' She prayed that the deed of release executed by her be set aside and cancelled.
The court found that the deed of release executed by Alice Lamb was procured from her by her father, Marion Felton, by undue influence, and was without consideration and void, and entered a decree cancelling the same and allotting to her a one-third interest in the estate making her share equally with her half-brother, Louis Felton, and her half-sister, Carrie Brown.
This presents the first question for our attention.
There was adduced in evidence a deed executed by Alice Lamb to the heirs of Marion Felton, in which, for an alleged consideration of $1,100, she released unto the other heirs all of her “right, title and interest in and to the real and personal estate of the said Marion Felton.”
There was testimony on behalf of appellee Alice Lamb tending to show that she inherited forty acres of land from her mother. Alice Lamb testified that on the 23d of November, 1880, she joined with her father and with her stepmother, Mary A. Felton, in conveying her interest in the land she inherited from her mother to one Edward Chapman; that on the same day her father and Mary A. Felton conveyed to her (she then being unmarried), in exchange for this land, the eighty acres on which she now resides; that she afterwards married with Eagle, and immediately took possession of the eighty acres conveyed to her by her father in exchange for her interest in her mother’s estate. She stated that she and her husband built a house on the property, and that in July, 1884, the house burned, and with it the deed which she had received from her father to the eighty acres, but which had never been recorded. She further testified that after the deed was destroyed she asked her father to make her a new deed, but this he refused to do unless she would execute a deed of release. She stated that her father represented to her that she would lose her title to the land, and that she, being ignorant of the law and relying upon him, executed the release in evidence to the other heirs. She further testified that the consideration named in the release of $1,100 was never paid her by her father, and that he had never given her anything in money or property, and that the only consideration for the release was the deed of her father to the eighty acres of land on which she was then residing.
There was evidence in her behalf tending to show that the land she inherited from her mother, which she claims to have given in exchange for the eighty acres deeded to her by her father was very valuable, being cleared and on a public road, and hat the land which her father deeded to her in exchange was at the time unimproved and worth only about $300; that soon after the exchange was made her husband began to pay taxes on the same. The deed of release was executed on the 29th day of May, 1885, over four years after the alleged deed of Alice Lamb conveying to her father her interest in her mother’s estate.
Witness H. T. Bradford testified, concerning the deed of release, that the same was acknowledged before him as justice of the peace; that he had no recollection as to whether any money consideration was talked of or not at the time. He gave it as his opinion that the consideration was a certain tract of land she got. He said that in his opinion a deed which bears the same date as the deed of release was the consideration the $1,100 mentioned in the deed of release.
Mary A. Felton testified concerning this, that the land that Alice inherited from her mother was not more valuable than the land she got from her father; that the land that she inherited from her mother was about worn out; that Alice received as much of. the estate as the other children; she got eighty acres of land and a horse, also a cow and calf; that Mr. Felton, during his life time made advancements to his children as they became of age and married. Alice got her part just as the others had got their parts. The eighty acres of land she got was good land; between twelve and fifteen acres of it was fenced, and had been worked a year. She saw Alice frequently after Mr. Felton conveyed her the land, and Alice never expressed any dissatisfaction. On the contrary, she said that she got the pick of the estate; that she got a fine piece of land that would make her a good home, and she was well satisfied with it. She sold to her father, the land that she inherited from her mother. Witness knew Alice’s father paid her for the land.
George Felton testified that his father made provision for all of the children except Louis and Carrie during his lifetime; that he gave them their part of the estate. The same arrangements were made with Alice as were made with the others. The eighty acres given to Alice were given her as her part of the estate. He gave her also horses, cows and hogs, and gave to her husband at that time provisions to run the place. “When any of us married,” said the witness, “Pa would give us our part of the estate. The only ones he didn’t provide for were the two youngest, Carrie and Louis. Alice got as much as the balance of us did. I signed my right to the balance of the heirs when I got my part of the estate, and so did she.”
Another one of the heirs, W. L. Felton, testified substantially to the same state of facts. And these witnesses say that their father put up himself one house on the eighty acres of land that he gave Alice as her part and helped put up another that was burned. One of these witnesses said that when Alice went to marry her father told her that she would have to have a home, and he was going to give her that eighty acres of land. “Father said to her: ' I have a mare here I will give you and. put you up a house on that land for your interest in the Burris place, ’ ” referring to the land Alice Lamb inherited from her mother. Witness further stated that Alice accepted it, and he never heard of her making any complaint regarding the part of the estate she got from her father until after the suit came up, which was twenty-five or thirty years after she had received the eighty acres of land from her father.
Carrie Brown testified that she heard her father say that he gave Mrs. Lamb the eighty acres where she was living for her interest in his estate.
The testimony of all these witnesses was to the effect that it was the intention of their father that Carrie and Louis, the youngest children, should share equally in the estate that was undisposed of at the time of his death, reserving to Mrs. Mary A. Felton her homestead and dower interest.
We are of the opinion that the court erred in finding that the deed of release executed by Alice Lamb to the other heirs was procured by her father under undue influence and without consideration. The clear preponderance of the evidence tends to show that this release was executed in consideration of the fact that she had before received her share of the estate, and was in recognition of that fact. It is scarcely believable that the father, who is shown to have been so generous and fair to all of his children in the disposition of his estate, and so careful to provide for them, would have deliberately set out to deceive his daughter, Alice, and misrepresent the facts to her, as she claimed he did. We are of the opinion that the preponderance of the evidence shows that she received ample consideration for the land which she inherited from her mother, and which she afterwards conveyed at her father’s request.
But, whether this is true or not, she is estopped by laches from setting up that the deed of release executed by her to the estate at the instance of her father was void for fraud and misrepresentation. She was of full age at the time this deed was executed, and was under no disability. She married a few weeks after the deed of release was executed. Even if it could be said that she was under her father’s influence at the time the same was executed, after her marriage and when she had moved away from him, it could not be said that there was any presumption of undue influence, and certainly none is shown by the evidence. She waited for about twenty-five years, and until this suit was brought, before taking any steps to have such release cancelled for the deception and fraud which she now claims her father perpetrated upon her in order to have her execute such release. If her father defrauded her out of her interest in her mother’s estate, as she now claims, it was her duty to have sought the interposition of a court of equity long before her father’s mouth was sealed in death. It does not speak well for her to have waited until her father had died and then set up her claim which necessarily involves the integrity of his character. She should have made known her objections before his death, but even after his death she waited nearly three years before she indicates any dissatisfaction.
The decided preponderance of the evidence shows that the deed of release was not fraudulently obtained. It was based upon a valid consideration, and is binding upon her. Squires v. Squires, 65 W. Va. 611, 64 S. E. 911; 13 Current Law, p. 1598, par. 17, note 58. The court therefore erred in annulling the deed of release, and in decreeing to appellee Alice Lamb one-third of the estate of her father.
Concerning the allotment of homestead and dower, Carrie Brown testified substantially as follows: “I entered into an agreement, after my father died, with mother and Louis as to a division of the real estate. My father had planned as to what part he wanted for Louis and for myself on the home place. I was to get -eighty acres of the home place and the twenty acres west of the home place. Louis was to get the balance of the home place. We all made a division of the property. We deeded Louis his part. He and mother wanted to make a deed for my part. The deed we made was acknowledged before J. S. Williams. Mr. Williams also wrote the deed I was to have. The deed that was made to my part, my mother had it, and was going to put it on record. I don’t know why she didn’t put it on record. It was written up and signed in the fall of 1908. Louis got more of the land in the bottom to equal mine. Louis was to receive the $550 my father had on deposit in the bank to make the improvements on his place equal to mine. This was part of the consideration. I was to have the property all my life; mother give me possession of it under the agreement. We were to all live together as one family. Father suggested the division during his lifetime. He told mother and Louis how he wanted the property divided on the home place. When the division was made, mother was to have the homestead as long as she lived.”.
J. S. Williams testified that after Marion Felton’s death Mrs. „Felton wanted him and Trimble to divide the property between her daughter, Carrie, and her son, Louis. They made a division of the property, and divided it equally. He testified also to a division of the real estate. He prepared the deeds. Mrs. Felton stated that she wanted everything settled during her lifetime. Each deed contained the same number of acres. Mrs. Felton refused to relinquish her dower in any of- the land. One clause in the deed was that she was to control her daughter’s part, that is the home place, during her lifetime. She said she wanted it divided by the ditch like Mr. Felton wanted it divided, and that the money in the bank was to make the improvement on Louis’ part equal to Carrie’s. There was a second deed made in which Mrs. Felton relinquished her dower to the part that Louis was to receive. He didn’t think that they divided the home place. They made a division of about 175 acres in the bottom. Nothing was said by Mrs. Felton about sixty acres being reserved for herself in the division. Mrs. Felton was to control the land that was deeded to Carrie Brown jointly during her lifetime. He made two deeds, one to Louis and one to Carrie.
Mrs. Felton testified that after her husband died they undertook a division of the personal property to carry out his wishes. She said there was a talk of a division of the real estate after Carrie married, but that it was never done. She at first stated that no deed was ever executed; said that Carrie would not sign the deed; said that in the division she (Mrs. Felton) was to get sixty acres of land absolutely as her own, and the children were to take the rest; that the whole matter of the division of the real property went through because Carrie refused to sign the deed. But in her cross examination she stated as follows: “The first division was that Louis was to get half of the real estate, and Carrie and me were to get the other half, but I was to hold her part while I lived, and hold all the farming tools; and what was left at my death, that was hers. Carrie and myself signed Louis a deed. The first partition was made; Mr. Williams, a justice of the peace, made the deed. I never delivered any deeds. The deeds were made to me. Carrie refused to sign. It was not the understanding that I was to hold Louis’ part, just as I was Carrie’s part. I declared to Carrie and Louis that I was going to hold her part as my homestead as long as I lived, but that I was going to deed Louis his part absolutely without any restrictions. After I made the deed to Louis, I didn’t expect to claim homestead right in' the part that Louis got. Carrie and her husband were at the house when they married; I didn't object to the marriage. I never asked Mr. Brown to come and live with me; He just came anyway, and took possession of the premises; there was no understanding between him and me. When Mr. Brown and Carrie married, there was no ill-feeling existing between us. The first trouble came up about a year after we made a partition. The deed that Mr. Williams drew up to Carrie, I never turned over to her. I was keeping the deed for.her; expected to turn it over to her at my death; that was the agreement. After she married, I wanted to arrange so that I could build a house for them to live in because I was tired of living with them, or they with me, for it looked like they were trying to shut me out, and I had an agreement that I would take sixty acres in the two deeds, thirty from Louis and thirty from Carrie. I stated to her that I was going to do this, and she never said a word, this didn’t have anything to do with the partition made a year or two before. ”
At another place in her testimony she says: “The understanding was, when it was divided, that Carrie’s part should remain on the place until after my death. Mr. Felton expressed an idea as to how he wanted the land divided between Louis and Carrie before his death, reserving the right of homestead aijd dower interest. My intention was to reserve my homestead in such a manner as not to be disturbed.”
Louis Felton testified: “My understanding was that mother was to deed me mine and my sister hers, and I was to deed mother thirty acres and my sister was to deed mother thirty acres, and she was to take the sixty acres and do with it as she pleased. I agreed to this. ”
On cross examination, he says: “We agreed to have a division of the personal property and real estate. I was to get half of the personal property, and my mother was to get the other half for Carrie; that is, Carrie’s part was to remain on the place, and my mother was to have the control and use of it. It was agreed in the first arrangments, but didn’t go through until the other deed was made. I made Carrie a deed to her part of the property. I think that was in the fall or spring after my father died. Something like a year after the first partition was made, I moved on my part and took possession. I drew the money that was in the bank. ”
The court, upon this testimony, found that, in pursuance of an agreement, “deeds were executed by Louis Felton to Mary A. Felton and Carrie Felton, and delivered to Mary A. Felton, and deeds were executed and delivered by .Mary A. Felton and Carrie Felton to Louis Felton; that Mary A. Felton went into possession and held the same as her dower and homestead for more than two years, until the filing of this suit; that Louis Felton went into posession of the part deeded to him immediately after said agreement, and has held the same since that time. _ •
The court further found that the deed executed and delivered to Louis Felton by Mary A. Felton and Carrie Felton was without consideration and void as between Louis Felton and Carrie Felton, and that the deed alleged to have been executed to Mary A. Felton and Carrie Felton-and delivered to Mary A. Felton was never delivered to Carrie Felton, and was without consideration and void as between Mary A. Felton and Louis Felton.
The court further found, after describing the lands that were conveyed under the agreement from Mary A. and Carrie Felton to Louis Felton, that, by reason of said agreement in setting out to Mary A. Felton said homestead and dower and said conveyance to Louis Felton, she has abandoned and released all of her right, title and interest as to homestead and dower in that part of the land embraced in the deed to said Louis Felton; that she is entitled to homestead only in that part of the home place not conveyed to the said Louis Felton, and entitled to dower in all that part of the land belonging to the estate of Marion Felton not embraced in the deed of conveyance to the said Louis Felton, and entered a decree according to his findings.
The court also adjudged and decreed “that Louis Felton account to Carrie Brown and Alice Lamb for the $550 received from the Bank of Central Arkansas, and also for rents amounting to $160 collected for the year 1910 on land in his possession.
The court, in its decree, specifically described the lands set apart as homestead and dower, and gave her dower, in addition to the homestead, out of the lands that were embraced in the deed executed by her and Carrie to Louis.
The plaintiff, Mary A. Felton, appealed from the decree in so far as the same affected her homestead and dower rights. Louis Felton also appealed. The appellees Carrie Brown and Alice Lamb appealed, but their appeal seems to have been abandoned. The attorney for them closes his brief by asking that the decree of the lower court be affirmed.
We are of the opinion that the decree of the chancellor in regard to the homestead and dower rights of the appellant Mary A. Felton is supported by a preponderance of the evidence. A decided preponderance of the evidence shows that Mary A. Felton and her children, Louis and Carrie, entered into an agreement by which they divided the property, real and personal, after Marion Felton’s death, and that the parties to the agreement took possession of the respective interests allotted to them, and that the agreement was fully consummated. The effect of the agreement on the part Of appellant Mary A. Felton was to abandon her homestead and dower right in the lands that were, by the agreement, ^allotted to Louis Felton. Such a disposition of the property was authorized under section 15 of Kirby’s Digest, there being no administration and no debts.
After the appellant Mary A. Felton had once abandoned her homestead in the solemn form as indicated by her deed, under the agreement, she could not thereafter claim it. See 21 Cyc. 608, and cases cited.
The court was correct in its finding that the $550 deposited in the bank in the name of Marion Felton at the time of his death was the property of his estate. This $550 was not a gift, either inter vivos or causa mortis, to Louis Felton. There was some testimony tending to show that he performed services for his father, and that it was the intention of his father to reward him for such services by giving him the $550, and that it was the intention that this money should go to Louis when his father died; but, although the gift may have been intended, it was' never perfected by delivery prior to Marion Felton’s death. If his father was indebted to Louis Felton, then that debt was a claim against the estate, which, to be allowed, would have to be settled in the course of administration.
Being the property of the estate, it was disposed of under the agreement, and we can see no reason why the agreement, which the evidence shows was entered into and fully consummated, should not be carried out as the par-ties made it. Under this agreement Louis Felton was to receive and did receive the $550 as a part of his division of the property.
The court therefore erred in cancelling such agreement as between Louis and Carrie Felton and in entering judgment in her favor for any part of the $550. The judgment therefore, in this respect, is reversed.
The decree of the court in regard to the homestead of Mary A. Felton is affirmed. In other respects it is reversed, and the cause will be remanded with directions to enter a decree in accordance with this opinion, and for such other proceedings as may be necessary pursuant to law. | [
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Lee Seamster, Chief Justice.
Appellee, S. P. Mil-ham, instituted ejectment proceedings in Saline Circuit Court against appellants, Dewey Hall and wife, Ocie Hall, for possession of a lionse and about 20 acres of land in Saline County, Arkansas. Further, the appellee sought judgment against appellants in the sum of $3,500, for an alleged indebtedness. The appellee later amended the original complaint and sought judgment for rent of said property at the rate of $75 per month, from the date of notice to appellants to vacate the property, until possession is restored to appellee.
Appellants answered with a general denial and filed a cross-complaint, seeking specific performance on an alleged oral contract with appellee, whereby, the appellee purportedly agreed to execute and deliver to appellants, a deed to the 20 acres of land, in return for appellants’ promise to live with him and care for him the rest of his life. In the alternative, appellants sought judgment against appellee, in the sum of $5,000, which represented the sum expended by them to repair and remodel the appellee’s home. Thereafter, on appellants’ motion, the cause was transferred to equity.
The cause was tried on October 7,1954, at which time the Chancellor took the matter under advisement and rendered a decree on December 31, 1954. The trial court dismissed the appellants’ cross-complaint for want of equity and because appellants did not pay certain court costs. The court decreed that appellee should receive judgment against appellants in the sum of $50 a month, for the occupancy and use of the dwelling house by the appellants, from the date of notice to appellants to vacate the property, until possession is restored to appellee. Judgment was also rendered against appellants, in the sum of $15 per month, for rental of a block house which is located on appellee’s property. This appeal follows.
The appellants have listed three points for reversal, they are: (1) the Chancellor’s decree is against the preponderance of the evidence, in his holding that appellee did not agree to deed his property to appellants for valid consideration, and in his holding that appellee should not be required to perform the agreement; (2) the Chancellor erred in his failing in the alternative to award judgment against appellee and in favor of appellants for the amount of money appellants spent in repairing tlie appellee’s property; and, (3) the Chancellor erred in directing that appellee recover rental on the property, for the reasons set forth in Nos. 1 and 2 of these points, and for the further reason that the care the appellants gave appellee would more than offset any rental for their use of the property.
Appellee, S. P. Milham, is a 78-year-old, unmarried bachelor, who has resided near Benton, Arkansas, all of his life. He is the uncle of Dewey Hall, one of the appellants herein. For a number of years, the appellants lived in Homer, Louisiana, where Dewey Hall carried on the trade of a master plumber. According to the testimony of the appellants, the appellee had lived alone most of his life and since he was getting old he felt the need of someone to live with him and care for him the remainder of his life. Consequently, in the early part of 1952, the appellants sold their home in Homer, Louisiana, and went to live with appellee under an oral agreement that the latter was to deed to the appellants the house and 20 acres of land in consideration of the care and attention to be bestowed upon the appellee during his lifetime. Further, the appellants contend that appellee also agreed to will them all of his real estate holdings, as well as personal effects. The appellants contend that they occupied the appellee’s premises pursuant to that agreement; spent about $5,000 of their own money in repairing and remodeling the house; fed appellee and took care of him until June, 1953, at which time appellee instituted this suit and moved out of his house. There was other testimony from disinterested witnesses that tended to corroborate the testimony of the appellants.
This testimony was stoutly denied by the appellee, who testified that he allowed appellants to move into his house, under an agreement that they could remain there until they built their own house. He maintained that this arrangement was only temporary and appellants agreed to board him, do his laundry, and pay the utility bills in lieu of rent. Appellee testified that he did not obligate himself or promise to convey the lands in question to the appellants in consideration for appellants’ promise to live with him and care for him, bnt rather, he told them that he wonld will them his property at his death, and thereafter did make a will to that effect. He contends that appellants are indebted to him in the sum of $3,500, less any sums expended by appellants for repairs to his house.
There is a decided conflict in the testimony as to whether appellee was forced to leave his home on account of intolerable treatment by the appellants, Dewey and Ocie Hall. It is true that appellants testified that an oral contract was entered into for their personal services in consideration for an immediate delivery, by appellee, of a deed to the 20 acres of land; but the evidence reveals that this purported agreement was never carried out since appellee has never delivered a deed to the appellants. There were no witnesses to his purported agreement. However, there is sufficient evidence to show that appellee agreed to will the appellants all of his property, in return for their promise to live with him and care for him the rest of his life.
The validity of an oral contract to make a will has long been recognized and such contracts have often been enforced by the courts. As in other contracts, a promise to make a will cannot be enforced without consideration. In the instant case, the appellants, in consideration for the promise of the appellee to will them his property, have agreed to render personal services or perform acts in the future. In other words, the agreement to make a will is supported by a prospective rather than a past consideration. We have often held that equity will not decree specific performance of an executory contract to perform personal services, for the obvious reason that there is no method by which its decree could be enforced. The jurisdiction of equity will not be exercised to decree a specific performance, however inadequate may be the remedy for damages, where the contract is of such a nature that obedience to the decree could not be compelled by the ordinary processes of the court. See Leonard v. Board of Directors of Plum Bayou Levee District, 79 Ark. 42, 94 S. W. 922; Nakdimen v. Atkinson Imp. Co., 149 Ark. 448, 233 S. W. 694. The trial court was correct in refusing specific performance in this instance.
We think the trial conrt erred in dismissing the cross-complaint of the appellants and in rendering judgment against them for $65 a month rent. By reason of the agreement between the parties, the appellants sold their home in Homer, Louisiana, and moved into the home of appellee; fed and carried forth their part of the agreement for 14 months; expended considerable money and labor in improving the appellee’s property, with the expectation that the property would eventually be theirs. The appellee voluntarily left his home, at the end of 14 months and made it impossible for the appellants to care for him. At this time, he changed his will leaving the property to other persons and instituted this suit.
The appellants have expended the sum of $2,800, in material and labor for improvement of appellee’s property, for which they have not been reimbursed. They are entitled to a judgment against appellee for this amount. Ross v. Springstun, 219 Ark. 228, 242 S. W. 2d 116; Walker v. Eller, 178 Ark. 183, 10 S. W. 2d 14.
• Judgment is rendered in favor of appellants against the appellee, in the sum of $2,800. The appellee will have 60 days after the filing and recording of the mandate in which to pay said amount. The appellants will be required to vacate the premises within 10 days, after payment of the judgment by the appellee. Should appellee fail to.-.pay said judgment .within the time allowed, the premises will be ordered sold to satisfy the judgment.
The decree dismissing appellant’s cross-complaint and the judgment for rent against appellants, are reversed and the case is remanded with direction to enter a decree not inconsistent with this opinion. The cost of both courts shall be borne by the appellee.
Reversed and remanded. | [
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Paul Ward, Associate Justice.
Appellant, Arkansas Independent Oil Marketers Association, Inc., instituted this action in the Sebastian Chancery Court, Fort Smith District, against the Lion Oil Company, seeking to enjoin said company from allegedly selling gasoline at tank wagon prices which are below the cost price of such gasoline. Summons was served on the Lion Oil Company by delivery of same to J. Aubrey Tates whose residence was in Sebastian County. Service was had on Yates on the assumption that Lion Oil Company maintained a place of business in Fort Smith and that Yates was in charge of this business as agent of the company, and that the service was proper under Ark. Stats., § 27-347.
Lion Oil Company filed a motion to quash the above described service of summons on the ground that Yates was not its agent. The trial court sustained said motion and the Association has appealed. Before submission of the cause in this court and on motion of the Lion Oil Company, the Monsanto Chemical Company was substituted as appellee.
Briefly stated, it is the contention of appellant that Yates is an agent of appellee, and it is the contention of appellee that Yates is an independent contractor, and therefore not a proper person for service under the above mentioned statute.
In order to intelligently discuss the issue here presented it is necessary to set out in somewhat detail the terms of the written contract existing between the Lion Oil Company and Yates, and also the testimony introduced at the hearing on the motion. Hereafter when we use the term “appellee” it will include the Lion Oil Company.
Appellee manufactures gasoline and allied products in El Dorado, Arkansas, and distributes the same in the Fort Smith area through a warehouse or bulk station operated by Yates. The products are received by Yates on consignment, with the title remaining in appellee. The gasoline is stored in six large tanks and the other products in a warehouse, all located on a parcel of land in Fort Smith, and all of which are owned by appellee. Among other things the “Distributor’s Contract” provides: (5) The distributor [Yates] shall maintain records of all products received at the bulk plant and thereafter sold by him, and shall at the request of appellee furnish detailed reports concerning receipts, sales and inventories; (6) The distributor shall sell said products only at prices fixed by appellee from time to time; all sales shall be for cash but distributor may make authorized credit sales in the name of appellee, and; the distributor shall immediately remit to appellee the full proceeds of all sales; (7) The distributor shall be paid a commission on all sales as per the schedule therein set forth; (8) The distributor shall furnish at his expense all trucks, tanks and other equipment necessary for selling and delivering said products, and shall employ at his expense all persons who may be required to assist him; (9) The distributor shall maintain at the bulk plant a telephone listed in the name of appellee, and he shall at his expense, when requested (but at least once a year), paint all motor vhicles used in distributing said products, the paint to be furnished by appellee; (13) Appellee has the right to make a complete audit of the distributor’s inventories, records and accounts from time to time with out notice, and; (15) The agreement shall continue at the will of the parties and either party may cancel at any time without notice. There are some other provisions in the contract which we shall note later.
Testimony introduced by appellee to sustain its motion in the trial court shows that on occasions Yates receives gasoline pumped from Oklahoma to a station near Fort Smith, places the same in storage tanks and receipts for it in the name of appellee; that he collects for all gasoline and all products sold and places the money in a local bank in appellee’s name; that he looks after appellee’s warehouse located on the same plot of ground with the tanks, and; that he makes reports of all sales and inventories on blanks furnished by appellee.
Appellant relies most strongly on the case of Arkansas Power and Light Company v. Hoover, 182 Ark. 1065, 34 S. W. 2d 464, quoting therefrom the following:
“In the instant case the agent was entrusted with the money collected, his duty being to receive and receipt for it, and transmit it to the company, a business as important, if not more so, than any other business it had in the county, and if he were competent to conduct such a business, he could be depended upon to notify the corporation of service upon him. The important thing in determining this question is that the corporation itself established a place of business where its bills could be paid and receipted for, and when a corporation establishes such a place and receipts for money paid for its service through an agent, it has for all reasonable and practical purposes established such a place of business as mentioned in the statute.”
The pertinent facts in that case were these: L. A. Atkins was the manager of a drug store at Waterloo, Arkansas, in which store the Power Company had no interest and paid no rent. Atkins merely collected and receipted for light bills as people would come in the store to pay him, and none of his duties required Mm to go outside the store. As the bills were collected Atldns transmitted the money to the Power Company. The bills which Atkins collected were made out by the Power Company and by it mailed to him, and for his services he was paid a flat salary of $10 per month. Appellee considers this case inapplicable to the situation here principally because, it says, “the customers involved were customers of Arkansas Power and Light Company and not his customers.”
Appellee for an affirmance of this case relies principally, if not entirely, upon the proposition that the testimony and the contract in this case show that Tates was an independent contractor as that term is defined in the case of Moore and Chicago Mill & Lumber Company v. Phillips, 197 Ark. 131, 120 S. W. 2d 722, quoting the last paragraph on page 137 of the Arkansas Reports. We agree that this decision gives a correct and lucid enunciation of the elements creating an independent contractor. We must also agree that there are many indications disclosed by the testimony and contained in the contract that Yates occupies the relationship to appellee of an independent contractor. There are, however, certain other incidents of relationship disclosed by the contract and testimony which force us to the conclusion that Yates was, at least in some respects, an agent of appellee. This conclusion is sustained by the weight of the authorities which we have been able to examine.
Before proceeding further, however, we desire to point out three things that should be kept in mind in resolving the issue here presented: (a) In considering the written contract between Yates and appellee we must be guided by what control appellee was empowered to exercise over Yates rather than what power it actually did exercise. See 19 A. L. R. 20 and Magnolia Petroleum Company v. Johnson, 149 Ark. 553, 233 S. W. 680; (b) It is of no significance that Yates was paid a commission in this case rather than a salary as was the case of Atkins in the Hoover case, supra. See 116 A. L. R. 459, and; (c) We know of no logical or legal reason why Yates might not be an independent contractor in certain respects and at the same time, in other respects, be an agent of appellee. See City of Detroit v. Corey, 9 Mich. 165, 80 Am. Dec. 78, and 19 A. L. R. 270, § 20.
As heretofore stated we think there are portions of the testimony and parts of the contract which strongly indicate that Yates was, in some respects, acting as an agent for appellee. It is not denied that Yates collected the money for all products sold and placed the same in a Fort Smith hank in the name of appellee, and Yates stated that he had no authority to check on the account. Appellee owned a warehouse located on the same ground as the bulk station in which, among other things, were stored tires, tubes, oil and case oil. After making this statement Yates was asked: “Q. Now, that property that is in the warehouse that belongs to Lion Oil — you have charge of the custody of that, don’t you? A. Yes, sir. Q. It’s up to you to look after it and see that nobody steals it 1 A. That’s right.” And again “Q. And you are charged by Lion Oil Company with looking after their property? A. Yes, sir.” It appears that not all of the gasoline sold by Yates at the bulk station in Fort Smith is shipped to him from appellee’s refinery in El Dorado. On occasions gasoline is piped from Oklahoma to a station near Fort Smith and then put in the storage tanks at the bulk station. On these occasions the gasoline is received and receipted for in the name of appellee.
There are portions of the contract itself which seem to us to indicate that appellee retained and could have exercised to some extent control over Yates. Subsection (B) provides that Yates may, at the request of appellee, secure and store products from a neighboring Lion Distributor and receive additional commission therefor. Section (10) provides that Yates shall receive and store certain equipment from appellee to be loaned by appellee to persons to whom Yates made sales, and that Yates would comply with the policy of appellee in effect from time to time with respect to handling drums. Section (11) provides that Yates will, at the request of Lion, move equipment from one station in his territory to another in event appellee desires that to be done, and for such service appellee will reimburse Yates his costs in handling. Likewise appellee has the right to direct Yates to move equipment from a location in Ms territory and transport it to his bulk plant for storage, appellee paying expenses. Section (12) provides for Yates to inspect tank ears shipped to his plant to ascertain if they are ‘ ‘ filled to within 3 inches of the top of the shell, ’ ’ and if not Yates is to notify appellee’s division manager. It is* further provided that the cars shall not be unloaded until ordered by the division manager. Section (17) gives appellee the right, in certain circumstances, to insist upon “strict, full and punctual performance of distributor’s obligations hereunder.”
Without laying particular stress on any one of the items mentioned above to show the relationship of agency, it is our opinion that all of them together, including the entire contract and the testimony, show conclusively that such a relationship does exist between appellee and Yates. This view conforms with the statement in 116 A. L. R. at page 462 and 463 where this question is discussed under the heading “Tank Wagon or Wholesale Station.” In referring to numerous cases dealing with this question it is there stated:
“. . . and in the majority of such cases it has been held that such operator is a ‘servant’ or ‘employee’ of the oil company, rather than an ‘independent contractor’ as is commonly contended by the company, generally on the theory that although the terms of the written contract might indicate that the operator had the status of an ‘independent contractor,’ the company in actual practice retained such power to subject him and Ms employees to its will and direction that he was in fact a ‘servant,’ ‘employee,’ or ‘agent,’ . . .”
Numerous cases are then cited to support that statement. In point also is the case of McDaniel v. Gulf Oil Corporation, 204 S. C. 186, 28 S. E. 2d 815.
The case of Magnolia Petroleum Company v. Johnson, supra, in dealing with this same question, had a factual situation very similar to the one here, as shown by reference to page 555 of the Arkansas Reports. In that ease there was a jury trial and the Petroleum Company insisted that the undisputed evidence showed the relationship of an independent contractor. In affirming the case the court said:
“And the majority are of the opinion that the contract between the company and Smith, as interpreted by the conduct of the parties under it, shows that it was tjie purpose of the company to retain complete control of everything done in connection with the sale and delivery of the oil, and that the testimony, in its entirety, warranted the finding that the drivers of the wagon were themselves the servants of the company.”
It follows from what we have said that the decree of the trial court should be and it is hereby reversed, with directions to overrule appellee’s motion to quash service. | [
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Minor W. Millwee, Justice.
Appellant, Roger L. Murrel, brought suit against appellees, Joe Bridges and George Washington, to recover a balance of $1,281.79 alleged to he due on two separate, promissory notes and to foreclose a chattel mortgage given to secure payment of the first note. The chancellor found, in appellant’s favor for $281.79, which represented the balance due on the first note of $664.89, and directed foreclosure of the chattel mortgage. This appeal is from the action of the court in sustaining appellee’s plea of failure of consideration as to the second promissory note for $1,000 and in dismissing the complaint as to said note.
Appellant is an attorney and had previously represented appellee, George Washington. The evidence indicates that Washington sought the advice and assistance of appellant relative to a feasible plan for the operation by appellees of a night club for Negroes in the city of Little Rock without too much interference from law enforcement officers. Acting on appellant’s advice, a “fraternal corporation” known as the “Imperial Order of Animistic Swahili, Big Rock Council” was formed with 17 charter members. On July 22, 1954, appellees entered into a partnership agreement drafted by appellant under which they agreed, “to carry on the business of a catering service, entertainment and social hall, and generally speaking operate a night-club business” under the trade name of “Temple of Swahili.” According to appellant the corporation “concessionaired out the con-sessions, handling of the bar and sale of beer, and so forth,” to the partnership. Under the partnership agreement Bridges agreed to donate certain personal property used in the operation of the business and Washington was designated, “the active and sole manager of said business.” It developed that the equipment used in the operation of the business actually belonged to Bridges’ wife but she apparently acquiesced in the donation to the partnership. The partnership agreement further provided that neither party should endorse any note without the written consent of the other, and that appellees should retain appellant as their attorney individually and as a partnership.
On August 6, 1954, George Washington, as “President & General Manager of Temple of Swahili, ’ ’ executed a note payable to appellant for $664.89 and a chattel mortgage on the personal property donated by Bridges as security for the payment of said note. On August 13, 1954, Washington executed another note ‘in the same capacity for $1,000 payable to appellant on demand. Bridges could not read but signed the partnership agree ment after his wife read it. Insofar as the record discloses he knew nothing about the execution of the notes and mortgage. Although he was to remain in the background it was shown that he operated the business on certain days and Washington was in charge on week ends. Income of the business was apparently confined primarily to proceeds from the sale of intoxicants by the drink and the operation of dice tables. The business did not prosper and became involved with the state Alcoholic Beverage Control Board. Operations ceased about the time the second note for $1,000 was executed by Washington.
Appellant testified that both notes were executed for legal services and advancements he made to the partnership. Except for the drafting of the partnership agreement, he gave vague and evasive answers concerning the nature of such legal services and the specific amount of any cash advancements to the partnership. Belative to the first note and a $200 payment to him by Bridges on July 22, 1954, appellant stated that same were, “to cover the expenses of the entire operations which were entwined basically in a partnership,” and, “as a basic part of a series of legal involvements and relationships.” When pressed for an answer as to the specific nature, of the consideration for the $1,000 note he stated it was for “legal services fully rendered as per oral agreement with the parties.” He also stated that he spent many evenings and hours with appellees and “helped them in many ways toward management of the club.” Washington testified that appellant interceded once before the Alcoholic Beverage Control Board when the business was closed and that appellant told him the $1,000 note was for legal fees. Bridges stated he had no knowledge of the execution of the notes and mortgage.
In holding the second note based upon an illegal consideration and void, the chancellor found that any legal services performed by appellant were in furtherance of the operation of an illegal business under the guise of a lodge. While the testimony was not as fully developed on this issue as it might have been, we have concluded that sucli finding is supported by a preponderance of the evidence. It is a well-settled principle that contracts between attorney and client which have for their subject-matter any interference with the due enforcement of the criminal laws are against public policy and, therefore, void. 5 Am. Jur., Attorneys, § 56. It is clear from this record that any services performed by appellant in connection with the note for $1,000 were in furtherance of the operation of an illegal business and to prevent the due enforcement of the laws against gambling and the illegal sale of intoxicants.
The decree is accordingly affirmed.
Chief Justice Seamster not participating. | [
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McCulloch, C. J.
Under the statutes of this State, a widow is entitled, as a part of her dower, “to one-third part of the personal estate, including cash on hand, bonds, bills, notes, book accounts and evidences of debt whereof the husband died seized or possessed.” Kirby’s Digest, § 2708.
Section 3 of the Digest provides that “when any person shall die leaving a widow and minor children, or widow or minor children, • * * * where the personal estate exceeds in value the sum of three hundred dollars, the widow and minor children, or widow or minor children, as the case may be, may retain the amount of three hundred dollars out of such personal property at its appraised valuation.”
Section 72 provides that, in addition to the amount mentioned in section 3, the widow shall be allowed to retain as her absolute property certain specific articles, consisting of wearing apparel, certain implements of industry, clothing for family use, and grain, meat, groceries and other provisions necessary for herself and family for a period of twelve months, and the household and kitchen furniture and effects sufficient for herself and family residing with her.
Section 74 provides that: “In addition to the property specified in section 72, the widow, when the estate is not insolvent, may take such personal property as she may wish, not to exceed the appraised value of one hundred and fifty dollars.”
The question presented in this case is, whether the widow and minor children are entitled to the amount specified in section 3 in addition to the widow’s dower. The court below decided that the provision was in lieu of dower, and not in addition thereto, and-refused to allow the widow and minor children the amount provided for in section 3, for the reason that the widow’s dower in the personalty of her deceased husband amounted to more than three hundred dollars. In Stull v. Graham. 60 Ark. 461, this court held that the widow is entitled to the specific articles enumerated in section 72, and, where the estate is not insolvent, to the amount specified in section 74, in addition to her dower consisting of one-third part of the personal estate. And in Lambert v. Tucker, 83 Ark. 416,the court held that “the widow is entitled to the $300 provided by section 3 of Kirby’s Digest after the same has been duly appraised,'and also the allowances mentioned in section 72; and, if the estate is solvent, then an additional $150 of the appraised value of the property, as provided by section 74.”
The court has never had occasion heretofore to pass on the question now presented. The statute does not in express terms declare whether the provision of section 3 shall be in lieu of, or in addition to, dower, but it does declare in absolute terms that the widow and minor children may retain the amount of three hundred dollars out of the estate as their own. This court in Quattlebaum v. Triplett, 69 Ark. 91, said: “It seems evident that this legislation was intended to protect the widow and helpless children of a deceased father,” the point in that case being whether, under the statute as it then read, it applied to adult, as well as minor, children. • It may be well to add that this provision is for the immediate protection of the widow and minor children, and that it is conferred regardless of the amount of dower to which the widow is entitled out of the estate. Where the lawmakers have conferred the rights expressly and unqualifiedly declared in the several sections referred to, it is difficult for the court, without attempting to legislate, to say that either of the special provisions is made in lieu of dower. If the provisions fo sections 72 and 74 are in addition to, and not in lieu of, dower, as held in Stull v. Graham, supra, it is difficult to find a reason why we should hold that the provisions of section 3 are in lieu of dower. At one time in the history of this legislation the operation of section 3 was limited to personal estates not exceeding eight hundred dollars in value, and there might have been some reason for saying that the limitation indicated an intention on the part of the lawmakers to make a provision in lieu of dower; but, since the statute has been amended so as to exclude this limitation and give the widow and minor children the amount regardless of the value of the estate, the reason for holding it to be a provision in lieu of dower wholly disappears. In Horton v. Hilliard, 58 Ark. 298, it was held that the homestead provision of the widow was in addition to dower and that the widow was entitled to dower in one-third of all the lands whereof her husband died seized, including the homestead. The reasoning of that case impels us to hold that the provisions now under discussion were intended to be in addition to dower. It follows therefore that the lower court erred.
The widow’s dower in personal property must, as has heretofore been held by this court, “be carved out of the specific estate of which the husband was seized at the time of his death.” Hill v. Mitchell, 5 Ark. 608; Menifee v. Menifee, 8 Ark. 9. We understand this to mean that the widow is entitled to one-third out of each kind or class of personal property of which her husband died seized and possessed. In estimating the amount she is entitled to as dower, the whole of the personal estate must be taken into consideration, including the property taken under the special provisions herein referred to; but she can not take from one class of property more than one-third thereof, as dower, in order to make up for a deficiency in another class created by reason of her having selected out of that class the special provision authorized in the section referred to.
The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. | [
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McCulloch, C. J.
On August 31, 1909, the plaintiff, Miss Berenice Hudson Giers, instituted this action in the chancery court of Ouachita County against her father, Dr. G. W. Hudson, of Camden, Arkansas, to cancel two deeds which sh'e and her brother, Woodland Hudson, had, on September 24, 1907, executed to her father, conveying to him their several interests in certain real estate formerly owned by their mother, Doctor Hudson's deceased wife, and in which Doctor Hudson had an interest as tenant by the curtesy. In his answer Doctor Hudson stated that one of the deeds was intended as a conveyance to him in trust for his said children for certain purposes and upon the prayer of plaintiff's complaint, without objection on the part of the defendant, the court canceled that deed So that feature of the case has passed out, leaving only the issue as to the deed conveying the lot which: is known as the “home” place. At the time of her death in the year 1900, Mrs. Hudson owned the “home” place, which had been conveyed to her some years before that time by her mother, Mrs. Woodland. She also owned another improved lot, known as the “Thai” place, which Doctor Hudson had purchased and paid for and caused to be conveyed to her. Both of these places are situated in the city of Camden. She also owned an undivided third of certain other property embraced in the other deed which the court canceled. Doctor Hudson had, of course, a curtesy estate in the “Thai” place, and also in the “home” place, subject to the homestead right of his children during minority. He married again in 1902, and had another child, the issue of the last marriage. Mrs. Hudson left surviving two other daughters, who subsequently married and died childless, leaving plaintiff and her brother Woodland as their heirs at law. So, at the time of the execution of the deed in controversy, plaintiff and her brother owned the “home” place and the “Thai’ place, subject to the father’s estate as tenant by the curtesy. The plaintiff was at that time twenty-two years of age and unmarried. She married shortly afterwards, and up to thattime lived with her father. Her brother was about nineteen years of age, but his disabilities had been removed. He refused to join his sister in this action to cancel the deed to his father. The plaintiff bases her prayer for relief on two grounds: first, that the execution of said deed was procured by fraud and deception on the part of the defendant in falsely representing to her that the effect of the deed was to convey only a life estate in the property, and in asserting false claims against the property, and, second, that the consideration therefor was inadequate, which on account of the confidential relation sh'e asserts is sufficient to call for rescission. The defendant denied the allegations of fraud, and pleaded the adequacy of the consideration for the execution of the deed. The chancellor found in favor of the defendant on both issues, and rendered a decree dismissing the complaint for want of equity as to that transaction.
The witnesses to the transaction which constitutes the subject-matter of this controversy were the plaintiff herself and the defendant and Woodland Hudson, the brother who joined in the conveyance, and E. B. McCall, an attorney-at-law, who, as notary, took the acknowledgments to the execution of the deed. The plaintiff and defendant were equally interested in the result of the controversy. Woodland Hudson was entirely disinterested pecuniarily, though he could not have been indifferent to such a controversy between his father and sister, and his sympathy would naturally be with one or the other. Mr. McCall had no interest whatever in the result of the suit, and he appears to be unbiased, either by sympathy or prejudice. The plaintiff was, as before ■ stated, living with her father at the time the deed was executed, and they were living in the house on the lot in controversy which had constituted the family residence for many years. She was a highly intelligent young woman, her father having given her the best of educational advantages, but she had had no business experience. She was absent from home for two years while attending school at Holly Springs, Mississippi; and at St. Louis, and returned home a few months before the execution of this deed.
She testified that the first that was ever said to her about signing any paper was on September 23, 1907, the evening before the deed was executed, when her father said, “Now, you are going to get married, and your brother is going away, and I want you to sign a paper giving me the use of the ‘home’ place for my lifetime, but at my death to come back to you and your brother.” She testified that very little was said by her father at that time, and no explanation was given, but that he-renewed the request the next morning, and said that he would bring Mr. McCall to the house in a short time for the purpose of having the paper signed, and that she replied, “I don’t want to sign it,” and he said, “If you don’t, I will disinherit you.” She states that soon afterwards her father returned with Mr. McCall, and while they were all in the library or office together, her' brother Woodland being also present, the request was renewed for her signature to the paper, which she says was never called a deed in her presence. She narrates as follows what then occurred: “Mr. McCall came and said, £I come to you to sign this paper,’ and I said, ‘I don’t understand it.’ My father said, ‘She does understand, but don’t want to sign them.’ Mr. McCall said: ‘Well, Miss Berenice, you are giving your father the use of the “home” place for his lifetime, and at his death it is to come back to you and your brother.’ I had agreed to do that for my father, and that was my understanding of these instruments. * * * As soon as I signed it, my father grabbed the paper, and I asked, ‘Is that all right?’ and he replied, ‘Everything is all right; you have nothing to fear.’ ”
She recites in another part of her testimony that she made a remark to McCall: “I don’t see why I must sign this paper for my father, because he will be perfectly welcome to live here all his life.” She also states that she did not read the instrument, and did not know it was a deed. She testified that afterwards, either during the afternoon of the same day or the next morning, her father told her that he would give the “Thai” place to her and her brother, saying, “I will give you the ‘Thai’ place as a gift, so you can realize something for your own use, as you are going to be married, and will need some money, and you will not have to come back to me all the time.” The above is a fair epitome of her testimony covering the execution of the deed. She further testified that she never made the discovery that she had conveyed the property to her father until she and her brother sold a part of the ‘ Thai” place in the fall of 1909, when, in looking over the records with her husband, her attention was called to the record of this deed.
Doctor Hudson, the defendant, testified that, prior to the execution of the deed, he had several conversations with his son and daughter concerning the settlement or adjustment of matters with reference to the property left' by their mother, his first wife. He says that in those conversations he spoke of the unsatisfactory condition in which the property stood with reference to his life estate and his claims against the property, and that he finally proposed to them that, if they would convey the “home” place to him absolutely by warranty deed, he would, in consideration thereof, relinquish to them his life estate in the “Thai” place, and also relinquish certain other claims, the nature of which will be explained later in this opinion. He says that the various conversations between him and them covered a period of a month or more, and that they assented to his proposal and seemed satisfied, or at least that they didnot reject it; that he had the deed prepared and gave it to Mr. McCall to take the acknowledgments, and requested the latter to explain the matter fully to his daughter; that he was not present when the deed was executed, and did not make any of the statements attributed to him by his daughter in her testimony. He denied that he ever coerced his daughter into signing the deed, or threatened her in any way, or that he misrepresented any fact to her, or concealed anything.
Woodland Hudson testified that during the summer of 1907 he was away from home, and returned on September 15, 1907, in response to a letter from his father requesting him to come for the purpose of adjusting matters concerning the property left by Ms mother; that on his return, and from then up to the time of executing the deed, his father had a number of conversations with him and his sister, in which he explained to them the condition of the property and his claims against the same, and proposed to relinquish his claims, including his life estate in the “Thai” place, in consideration of their conveying to him their interest in the “home” place; that he further explained to them that the “home” place would thereby become a part of his estate, in which they would share pro rata at his death, but that that would be a matter in his control, as the property would belong to him absolutely. He further testified that he and his sister had several conversations in the absence of their father concerning the matter, and that he fully comprehended his father’s explanation of all the matters and assented to the proposal, but that his sister did not seem to understand it fully, and did not appear to fuly understand it until the final explanation was made by Mr. McCall when the deed was signed. He relates the occurrences at the signing of the deed; says his father was not present; that McCall explained everything fully to his sister; that the deed was explained and read over to her. He states that McCall’s explanation concerning her sharing in her father’s estate at his death was not different from the explanation of his father to her. His testimony is in direct conflict with plaintiff’s testimony as to what occurred. He states, however, that in one of the conversations between his father and sister she expressed a willingness to sign a deed conveying a life estate, but that his father wanted an absolute deed and told her so.
Mr. McCall testified that he had no interest in the controversy, and had nothing to do with the transaction except, at the request of Doctor Hudson, to go out to the latter’s residence •and explain the matter fully to his daughter and take the acknowledgments; that he did this, making the explanation to her that Doctor Hudson made to him; that he told her that he- had come for her to sign the deed, and explained that her executing the deed would not bar her from sharing in her father’s estate, but that she would share in it like the other heirs; he said that he spoke of the deed to her not as papers but as a deed, and that she had the deed in her hand, but he does not remember whether he read it over to her or not. He stated that Doctor Hudson was not present at his interview with plaintiff when the deed was signed, and that the conversation testified to by plaintiff did not occur. He denied specifically that he said to to her, “You are just giving your father the use of the ‘home’ place for life.” Mr. McCall’s testimony, it will be seen, is flatly contradictory of that of plaintiff as to what occurred on that occasion.
The record in the case is very voluminous, but the above is thought to be a sufficient statement to give a correct idea of the state of the evidence upon which the chancellor based his findings in favor of the defendant upholding the deed.
The law is too well settled in this class of cases to leave any doubt as to what principles should be applied in determining the questions at issue. The industry of learned counsel on each side has brought to our attention in their briefs all of the authorities bearing on the subject, which will be set out in the abstract and need not be cited again here.
The plaintiff had attained the age of legal majority several years before the execution of the deed, but she still resided with her father, and is deemed to have remained, to some extent at least, under his parental control. Under those circumstances, any contract, conveyance, or business transaction between them must be scanned with the closest scrutiny. Yet the deed is not void merely because.of the existence of the parental relation, but it should be declared void unless free from the objection of fraud, duress, undue influence, misrepresentation or concealment of facts, or inadequacy of price. It will not be permitted to stand unless the transaction is characterized by the utmost fairness and good faith on the part of the parent who accepted the conveyance from his child. The following language of Lord Chancellor Cranworth in the case of Savety v. King, 5 H. of L. Cases, 627, forms the basis of much of the learning on this subject and accurately states the controlling principle in this class of cases:
“The legal right of a person who has attained his age of twenty-one to execute deeds and deal with his property is indisputable. But where a son, recently after attaining his majority, makes over property to his father without consideration, or for an inadequate consideration, a court of equity expects that the father shall be able to justify what has been done; to show, at all events, that the son was really a free agent, that he had adequate independent advice, that he was not taking an imprudent step under parental influence, and that he perfectly understood the nature and extent of the sacrifice he was making, and that he was desirous of making it.”
This court in the case of Million v. Taylor, 38 Ark. 428, in speaking of a business transaction between brother and sister, where the proof showed that a state of great confidence existed, held that the transaction must have been characterized with the utmost good faith before it could be upheld.
In Reeder v. Meredith, 78 Ark. 111, this court quoted with approval the following statement of the law from Perry on Trusts:
“Section 195. A trustee may buy from the cestui que trust, provided there is a distinct and clear contract, ascertained after a jealous and scrupulous examination of all the circumstances; that the cestui que trust intended the trustee to buy, and there is fair consideration and no fraud, no concealment, no advantage taken by the trustee of information acquired by him in the character of trustee; the trustee must clear the transaction of every shadow of suspicion. * * * Any withholding of information, or ignorance of the facts or of his rights on the part of the cestui que trust, or any inadequacy of price, will make such purchaser a constructive trustee.”
Now, it is equally well settled that this rule which requires a close scrutiny of such transactions is not enforced for the purpose of defeating the contract between parties merely because confidential relationship exists, but it is enforced solely for the purpose of discovering what the real intention of the parties was and to prevent one occupying such a relation of trust from securing an unfair advantage by reason thereof. In the case of Hannaford v. Dowdle, 75 Ark. 127, which involved an attack by the heirs of a deceased wife upon a conveyance made by her to her husband, we said:
“Appellees invoked the elementary rule of law that gifts from the wife to the husband are to be scrutinized with great jealousy. Citation of authority is unnecessary to sustain this salutary rule. But, after all, the demand for such scrutiny is to ascertain, and not to defeat when ascertained, the real intention of the parties, where the transaction is free from fraud. Notwithstanding that relation, the court will, after having ascertained the intent of the parties to the transaction and found that there has been no fraud or imposition, uphold rather than frustrate their acts.”
The Supreme Court of the United States, in Jenkins v. Pye, 12 Peters, 241, after laying down with utmost strictness the rule that a conveyance from a child to the parent should be scrutinized with care, said:
“But to consider a parent disqualified to take a voluntary deed from his child, without consideration, on account of their relationship, is assuming a principle at war with all filial as well as parental duty and affection, and acting on the presumption that a parent, instead of wishing to promote the interest and welfare, would be seeking to overreach and defraud his child.”
Judge Story concurred in the judgment of the court in Jenkins v. Pye, and in the last edition of his Commentaries, which underwent his revision as has been stated upon good authority, he laid down the following doctrine on the subject:
“The natural and just influence which a parent has over a child renders it peculiarly important for courts of justice to watch over and protect the interests of the latter; and therefore all contracts and conveyances whereby benefits are secured by children to their parents are objects of jealousy; and if they are not entered into with scrupulous good faith, and are not reasonable under the circumstances, they will be set aside, unless third persons have acquired an interest under them, especially where the original purposes for which they have been obtained are perverted, or used as a mere cover. But we are not to indulge undue suspicion of jealousy, or to make unfavorable presumptions as a matter of course in cases of this sort.” 1 Story, Eq. Jur. (4 ed.) § 309.
In Towson v. Moore, 173 U. S. 17, Mr. Justice Gray, after a very exhaustive review of the authorities, states the rule thus:
“The principles established by these authorities may be summed up as follows: In the case of a child’s gift of its property to a parent, the circumstances attending the transaction should be vigilantly and carefully scrutinized by the court, in order to ascertain whether there has been undue influence in procuring it; but it can not be deemed prima facie void; the presumption is in favor of its validity; and, in order to set it aside, the court must be satisfied that it was not the voluntary act of the donor.”
A careful consideration of the testimony in this case convinces us that the chancellor. was not wrong in reaching the conclusion that this transaction between father and daughter was free from fraud or imposition. To reach any other conclusion we would be compelled to accept the unsupported statement of the plaintiff herself against that of her father, who is only interested to the same extent.that she is in the result of the litigation, and also the testimony of two other witnesses, who are altogether disinterested. She is flatly contradicted upon nearly every important point by the testimony of each of these witnesses. She says that her father only asked her to convey the property to him for his lifetime, but in this she is contradicted by both her brother and her father. She says that Mr. McCall made the same statement to her when she executed the deed, but in this she is contradicted by McCall as well as by her brother, who was present. All of the other witnesses positively contradict her statement that her father was present when the deed was executed. Her contention throughout this litigation is that she did not know that she was signing a deed, but thought it was merely a contract or “paper, ” as she described it, giving her father the right to use the place as long as he lived. After considering the testimony, we are forced to the conclusion that, though she was ignorant of business transactions and not advised as to the methods and forms of conveying property, yet it was clearly brought to her knowledge and understanding that she was making an absolute and irrevocable conveyance to her father of all her interest in this property. Her counsel insists that, as she did not, under the circumstances, know the full legal effect of a conveyance, she was misled by the statement of her father and of McCall to the' effect that the execution of the deed did not bar her of her right to share in her father’s estate at his'death, into believing that after all the effect of the deed was only to convey a life estate, and that the property would at her father’s death revert to her and her brother without her stepmother and half-brother having the right to participate therein. In the face, however of the positive statements of these witnesses, it is not possible for us in reason to accord that much lack of understanding to the plaintiff, for the testimony is too plain to question that she fully understood that the conveyance was absolute. We can only repeat that to accept her version of this matter would be to take her unsupported word against that of three other witnesses. She shows that she was not versed in business matters and in forms of conveyances, but she was intelligent and well educated and evidently understood the meaning of language to the extent that she could comprehend, when explained, the effect of a transaction of that kind.
Attention is called to the fact that none of the witnesses say that it was fully explained to her that her father’s second wife and the children of that marriage would share In this and any other property owned by her father at the time of his death. There was, however, no misrepresentation as to the effect of the conveyance in this respect, and she must have known, under the explanation given to her, that they would share in any property that the husband and father owned at the time of his death. In fact, Woodland Hudson testified that, though his father explained to the plaintiff that she would, as one of his heirs, share in his estate at his death, yet the disposal of his property was entirely with him, and that the conveyance which he sought would place the property absolutely at his disposal.
It should be borne in mind that this conveyance was not a donation to the father, nor was it, strictly speaking, a sale and purchase. It was more in the nature of a family settlement, which is always encouraged by the courts and upheld when fairly entered into. In the recent case of Martin v. Martin, 98 Ark. 93, it was said:
“Courts of equity have uniformly upheld and sustained family arrangements in reference to property where no fraud or imposition was practiced. The motive in such cases is to preserve the peace and harmony of families, The consideration of the transaction and the strict legal rights of the parties are not closely scrutinized in such settlements, but equity is anxious to encourage and enforce them. As is said in the case of Pate v. Johnson, 15 Ark. 275: ‘Amicable and family settlements are to be encouraged, and when fairly made * * * strong reasons must exist to warrant interference on the part of a court of equity.’ ”
In the case of Baker v. Bradley, 7 De Gex, M. & G. Rep. 597, which was decided only a few months prior to the decision in Savery v. King, supra, and while Lord Cranworth was Lord Chancellor, one of the justices, in delivering his opinion, said:
“Transactions between parent and child may proceed upon arrangements between them for the settlement of property, or of their rights in property in which they are interested. In such cases this court regards the transactions with favor. It does not minutely weigh the coniderations on one side or the other. Even ignorance of rights, if equal on both sides, may not avail to impeach the transaction. On the other hand, the transaction may be one of bounty from the child to the parent, soon after the child has attained twenty-one. In such cases this court views the transaction with jealousy, and anxiously inter poses its protection to guard the child from the exercise of parental influence.”
Now, as to the alleged consideration to this conveyance: Doctor Hudson wasatthattime sixty-five years of age, and had a life expectancy of about twelve years The market value of the “home” place at that time was $8,000 and that of the “Thai” place$5,300. The “home” place was occupied by Doctor Hudson as a place of residence, and the “Thai” place was divided into two parts, each with a dwelling-house on it, and the two houses thereon rented for $33 per month. He had a life interest as tenant by the curtesy in the Thai place, and also in the “home” place, subject to the homestead right of his son, Woodland, who was soon to become of age. He had advanced to his two deceased daughters at the time of their respective marriages a sum of money which, with interest up to the time of this conveyance, amounted to $1,491.25. He had exacted from them obligation in writing for repayment of those sums, which became a charge upon their estates inherited by the plaintiff and her brother. This charge he proposed to assert and offered the relinquishment thereof as a part of the consideration of this conveyance. He had, subsequent to the death of his wife, paid off a mortgage on the property amounting to $1,031.98, and he also claimed the right of reimbursement for this. In addition to this, he asserted a claim for the sum of $1,900 paid in dis charge of another mortgage on the property in the year 1899, which was before the death of his wife. The effect of the settlement was that Doctor Hudson, in exchange for the reversionary interest of his children in the “home” place., gave up his life interest in the “Thai” place and also relinquished the other claims above enumerated. In addition to that, he urged the moral claim that the “Thai” place was purchased and improved with his own money and conveyed to their mother, and that the “home” place was in a dilapidated condition when conveyed to their mother, and that he had greatly improved the same and brought it up to its present value. We think that the consideration was not so inadequate as under the circumstances called for a cancellation of the conveyance, nor are we prepared to say from this testimony that it was not for the best interest of the plaintiff to make this settlement. She had no such interest in either the “home” place or the “Thai” place as would- yield her any income until the death of her father. Her interest was of a speculative and uncertain value, and it'is doubtful whether he could have realized any very substantial sum by a sale of her interest. A reversionary interest scarcely ever has any definite market value, but, on the contrary, the value is highly speculative. By this settlement plaintiff and her brother acquired a certain and definite marketable interest in the property, which not only yielded a present income from the rents but which could be realized upon by sale. In fact, they sold a portion of the “Thai” place for $2,800 in less than two years after this transaction occurred.
It is unnecessary for us to pass on the question whether or not all of the charges which Doctor Hudson asserted against the property were sustainable in law. Sufficient it is to say that the evidence convinces us that he asserted these claims in perfect good faith, that he informed his daughter of the existence and nature thereof, and that with a clear understanding of them she entered into a settlement with him and executed the conveyance pursuant to that settlement. If, with a clear knowledge of all the facts and without any fraud or undue influence on the part of her father, she freely and voluntarily executed the conveyance in settlement of their rights, then she ought to be and is bound by her act.
This is, of course, an unfortunate controversy, which is to be deplored, but upon a careful consideration of all the evidence in the case we are of the opinion that the plaintiff has entirely failed to establish a state of facts which would justify a court of equity in setting aside the settlement made with her father and cancelling the conveyance which she made to him.
Decree affirmed.
Hart and Kirby, JJ., dissent. | [
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McCulloch, C. J.
This is an action to recover damages on account of an alleged refusal of defendant to perform his contract for the sale of land. The complaint alleges, in substance, that plaintiff and defendant entered into an oral contract, whereby the defendant agreed to sell to the plaintiff certain tracts of land in Sevier County, Arkansas, for the sum of $8,000; “that it was understood and agreed by and between the parties, at the time of said transaction, that said lands were bought by plaintiff for the purpose of speculation, and defendant agreed at the time to make a deed conveying same to any party to whom plaintiff should sell said land; and that plaintiff should be entitled to all sums for which he should sell same in excess of $8,000;” that plaintiff negotiated a sale of the lands with one Charles Hammond for the sum and price of $11,500; that, pursuant to said contract, the defendant executed a warranty deed conveying said lands to Hammond, which deed, together with a draft for the amount of the purchase price, was delivered to the cashier of a bank in De Queen, to be held by said bank until such time as the abstract of title to said lands might be perfected, that plaintiff was required to, and did, pay to said bank the sum of $100 as a forfeit in case plaintiff failed to comply with his contract by causing $8,000 to be paid to defendant when the abstract of title was perfected and the deed ready for delivery. It is further alleged that the defendant subsequently sold the land in violation of his contract to another person, and refused to perform his contract with plaintiff. The prayer of the complaint was for the recovery of $3,500, the difference between the price to be paid by Hammond and the price defendant agreed to accept from plaintiff.
The defendant answered, denying all the allegations of the complaint as to the contract, and pleading the statute of frauds.
The testimony in the case tended to establish the allegations of the complaint as to the oral agreement and as to the delivery of the deed to the bank and the posting by plaintiff of the forfeit; but it further shows that Hammond declined to accept the deed on account of alleged defects in the title. Plaintiff testified that he did not refuse to accept a conveyance himself, and that he could have bought it and would have gotten the money to pay for it, notwithstanding Hammond’s refusal to accept the deed.
The court gave a peremptory instruction in favor of defendant, and this appeal challenges the correctness of that ruling.
The oral contract between plaintiff and defendant was, of course, within the statute of frauds and void. Counsel for plaintiff insist, however, that the delivery of the Hammond deed to the bank in escrow takes the case out of the operation of the statute. It is said that the trial judge based his ruling on the decision of this court in Henderson v. Beard, 51 Ark. 485, and we are the opinion that he was correct in holding that that case was conclusive of the present one. It was there held, quoting the syllabus, that “in an action to recover damages for the breach of a contract for the sale of land, an undelivered deed of the defendant to a third person is not sufficient to take the case out of the statute of frauds where, upon the face of the deed, the plaintiff is a stranger to the contract, and there is no memorandum in writing connecting him with it. Nor could the plaintiff rely on such deed, if it could be shown by parol that the title it purports to pass was to be held in trust for him, unless it was also shown that the grantee had; on his part, offered to perform the contract.”
Now, in the present case, as in the one quoted from, there is no writing by which either the contract between plaintiff and defendant or the connection between plaintiff and Hammond is evidenced. The rule seems to be generally settled that the delivery of the deed in escrow takes a case out of the operation of the statute of frauds. Note to Manning v. Foster, 18 L. R. A. (N. S.) 337. But this would only apply to an enforcement of the contract by Hammond, the grantee in the deed; and, as plaintiff has failed to connect himself with the transaction by any writing, he can derive no aid from the execution of the deed. The rule would be different if plaintiff were suing to recover his commission on a sale made by him for the defendant. A contract of that kind is not within the statute of frauds. Forrester-Duncan Land Co. v. Evatt, 90 Ark. 301. But this is a suit for breach of a contract for sale of the land to the plaintiff himself, and comes squarely within the operation of the statute. We are of the opinion that the ruling of the circuit court was correct, and the judgment is affirmed. | [
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Paul Ward, Associate Justice.
This appeal calls for an interpretation of a portion of the will of Josiah W. Lawrence. It was appellant’s contention below that said will created a trust relationship, that trial court decreed otherwise, and this appeal is prosecuted for a reversal. Josiah W. Lawrence, being the owner in fee of three lots in McG-ehee, Arkansas, of the value of approximately $10,000 [together with other real and personal property], executed his will on May 14, 1945 the material portions of which were as follows:
“3rd”
“I direct that my wife or my executrix, hold my estate intac and that she hold, Sell or dispose of my property at her will, and the same shall be use for the Benefit of her and my two children, Charles D. and Jay D. Lawrence, and all her actions is hereby ratified and confirmed, and she is hereby authorized and empower to sell, or dispose of my estate in the same manner as if done by me during my life time, and her own signature shall convey all rights and titles held my me at my death.
4th
I further direct at the death of my executrix, that my estate, both real and personal, of whatever so kind, and wheresoever found, shall pass to my two said children, and unto their airs to shear alike between the two, and to theirs shear alike.”
At the time of his death on November 28, 1946 Josiah W. Lawrence left surviving him his widow, Annie Lawrence, a son Charles D. Lawrence, and a son Jay D. Lawrence, single. Charles D. Lawrence died on Jan uary 25, 1950 leaving Ms- widow, appellant, but no children. On May 9, 1950' Annie Lawrence, for $1.00, other good and valuable considerations, and love and affection, executed a warranty deed to Jay D. Lawrence conveying the aforementioned three lots. Annie Lawrence died on April 15, 1952. The record contains a will, recorded in Book “D” at page 423 of Will Records in Desha County, executed by Charles D. Lawrence October 24, 1949 in which he gave all of his estate real and personal to his ■wife, the appellant.
This suit was instituted by appellant, the widow of Charles D. Lawrence, to cancel the aforementioned deed from Annie Lawrence to Jay D. Lawrence and to have the will of Josiah W. Lawrence so construed as to give her a one-half interest in the property mentioned, and for other relief.
The trial judge, in an exhaustive and able statement, concluded that the will of Josiah W. Lawrence created no trust relationship. We do not agree with the conclusion reached by the chancellor, but we do think he correctly stated the fundamental issue presented by this appeal when he stated: 1‘ The only question presented here is for a construction of this will with reference to the validity of the deed from Annie Lawrence to Jay D. Lawrence.”
The cardinal rule for the interpretation of a will, announced many times in our decisions, is very well stated in Jackson v. Robinson, 195 Ark. 431, 112 S. W. 2d 417. This rule is that the intent of the testator should be ascertained and effect given to that intent. In this connection it was also stated that the testator’s intent must be ascertained from the -language expressed in the will after a consideration of all the provisions of the instrument rather than from any particular form of words. Where the question arises as to whether the will creates a trust relationship it is said that a liberal construction should be applied to effectuate that relationship. In 56 Am. Jur. (Trusts)- page 36, § 18, it is stated: “Liberal construction, within bounds of purpose and natural and uncontaminated - import, in view of the existence and scope of the trust, is the rule” (citing cases). The same cited authority, § 17, says: “In construction of a trust instrument the expressed intent will not be varied under the guise of correction because the trustor misapprehended its legal effect. The trustor is presumed to know the law.” It is said in Restatement of the Law (Trusts) page 72, § 23, that: “No particular form of words or conduct is necessary for the manifestation of the intent to create a trust.” In the “illustrations” given at page 74, that the words “for the use of B” or “for the benefit of B” are sufficient to denote a trust.
Measured by the announced rules, a careful consideration of that portion of Josiah W. Lawrence’s will set forth above forces us to the conclusion that the will did not convey to Annie Lawrence a fee simple title to the described property, but that a trust relationship was created under which she held the property for the use and benefit of herself and the two sons.
To our minds the plain unambiguous wording of the will is susceptible to no other reasonable interpretation. Some of tire wording is: “and the same,” speaking of the testator’s estate, “shall be used for the benefit of her [Annie Lawrence] and my two children.” And in the 4th paragraph the testator directed that at her death his estate should “pass to my two said children > J
All the above language is repugnant to the testator’s intent to give his wife a fee simple title.
There is other language in the will which appellee relies on to show a different intent of the testator — -an intent to give his wife a fee. Some of such language relied on is: “and she (the wife) is hereby authorized and empower to sell or dispose of my estate,” etc., but this language, we think, is not all inconsistent with our stated view. In the first place the language might be said to be inconsistent with appellee’s view because, if in fact the wife was given a fee, the language was unnecessary, as stated in Owen v. Dumas, 200 Ark. 601, 140 S. W. 2d 101. If the wife received a fee she, of course, had full power to sell anyway. In the second place the language in the will giving the wife the power to sell, is the language necessary and usual where a trust is created with power in the trustee to sell for the benefit of others. In the third place the will states, in the first three lines of paragraph “3rd,” that “she hold, sell or dispose” of the property “and the same shall be used for the benefit” of her and her two sons.
Consequently we conclude that Annie Lawrence could only dispose of the property for the purpose expressed in the will, and, further, that the deed she made to her son Jay D. Lawrence on May 9, 1950 was not for such a purpose. In fact it is not contended said deed was made for any such purpose — no testimony being introduced. In the Owen case, supra, it was said: “In the case at bar, the power to dispose of the property is expressly limited to certain purposes, and the widow could not dispose of the property for any other purpose than those mentioned in the will.”
Having construed the will to impose a trust upon the widow, it follows that she only had (not more than) a life estate in the property in litigation, and that the fee in the property went to the two children. The facts and issues in this case are similar to those considered in Patty v. Goolsby, 51 Ark. 61, 9 S. W. 846, where we said: “As to the construction of the will we see no difficulty whatever. The testator has given, and no doubt intended to give to his wife Elizabeth, a life estate in both, his personal and real property or his whole estate. It is equally clear that he gave and intended to give the remainder in fee to his children. ’ ’ In speaking of the interest which the children received the court said: “It was therefore not a contingent but vested remainder-vested at the same time the life estate vested.”
It follows that Charles D. Lawrence during his lifetime had a vested interest in the property in litigation, which was such an interest as he could convey by will to his wife.
Since no testimony was taken before the trial court it appears likely that there will be further litigation relative to certain issues raised in the pleadings, therefore the cause is reversed and remanded for further proceedings not inconsistent with this opinion.
Justice McFaddin dissents. | [
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J. Seaborn Holt, Associate Justice.
Appellee obtained a judgment against appellant in tbe Municipal Court of the City of Fayetteville on April 12, 1955. On this same date appellant filed affidavit for an appeal, and later filed an appeal bond. On May 14, 1955, more than 30 days after entry of the judgment in the Municipal Court, appellant filed the transcript of the proceedings in the Washington Circuit Court. On May 16, 1955, appellee filed motion to dismiss appellant’s appeal on the ground that it was not filed within the 30 day period which the law required. This motion was heard by the trial court on the proceedings (no testimony was taken) and the court sustained appellee’s motion and dismissed the appeal. This appeal followed.
Appellant says: ‘ ‘ This appeal rests solely upon the interpretation of Act 203 of 1953, and the application of that Act to the facts of this case.” Act 203 of 1953 provides: “Section 1. Section 1 of Act 323 of 1939, being Section 26-1307 of the Statutes of the State of Arkansas, be and the same is hereby amended to read as follows: ‘If a party appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment the clerk of the court or the justice of the peace of the court from which the appeal is taken must file the transcript of the judgment in the office of the Circuit Court Clerk within thirty (30) days after the rendition of the judgment.’
“Section 2. All laws and parts of law in conflict herewith are hereby repealed,” etc.
Section 1 of Act 323 of 1939 [Now § 26-1307 Ark. Stats. 1947], which the above act amended, provided: “A party who appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment must file the transcript of the judgment in the office of the circuit court clerk within 30 daj^s after the rendition of the judgment. If the transcript of the judgment is not filed within 30 days after the rendition of the judgment, execution can be issued against the signers of the appeal bond.” In construing this Section 1 of Act 323 of 1939 we said in Lytle v. Hill, 205 Ark. 789, 170 S. W. 2d 684, “This section gives finality to the judgments of inferior courts where the transcript of the judgment is not filed in the office of the clerk of the circuit court within thirty days after the rendition of the judgment . . . This act is not only mandatory, but is jurisdictional. The transcript must be filed with the clerk of the circuit court within 30 days to confer jurisdiction upon the circuit court. It was so expressly held in the case of Nowlin v. Merchants National Bank, 192 Ark. 529, 92 S. W. 2d 390, and the holding in the case of Bridgman v. Johnson, 200 Ark. 990, 142 S. W. 2d 217, is to the same effect.”
As we construe Act 203 of 1953, it just simply amended Section 1 of Act 323 of 1939 [§ 26-1307 Ark. Stats. 1947] so as to place the responsibility of filing the transcript, within the 30 day period, upon the clerk of the Municipal Court rather than upon “the party who appeals” but left the burden on appellant to see that the transcript was so filed within that period. The Act also omits and repeals that provision, or the last sentence, in Section 1 of Act 323 which says: “If the transcript of the judgment is not filed within 30 days after the rendition of the judgment, execution can be issued against the signers of the appeal bond. ’ ’ This Act 203, however, leaves in full force and effect, and does not repeal, the second subdivision of § 26-1302 Ark. Stats. 1947, which provides: ‘ ‘ The appeal must be taken within thirty (30) days after the judgment was rendered, and not thereafter.”
We hold that the burden was on appellant to see that the transcript was lodged with the Circuit Court within the 30 day period and that Act 203 of 1953, which was an amendment to Act 323 of 1939, does not change the law in this respect. Affirmed. | [
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Paul Ward, Associate Justice.
Appellant, J. T. Miller, instituted this suit to enforce the terms of an alleged contract under which, it is contended, appellee, the Missouri Pacific Transportation Company, was obligated to give him permanent employment. The prayer was for specific performance of the alleged contract and for damages for the breach thereof for a period of one year. Prom an adverse ruling appellant prosecutes this appeal.
The alleged contract relied on by appellant consists principally of a memorandum from District Lodge 158, of which appellant was a member, to appellee, of a letter from appellee to said Lodge and of certain oral testimony. It is appellant’s contention that the alleged contract was entered into for his benefit and that he has a right to sue thereon.
J. T. Miller at the age of approximately 55 years first entered appellee’s employment in Little Rock as a laborer. On August 8, 1946, while in said employment, he was injured and as a result was confined to the hospital for 11 weeks and 3 days. After discharge he stayed at home and went back to the doctor every day for some time and then went back to work on February 1, 1947, but he was unable to stand on his feet for long periods of time or to do the heavy work to which he had been accustomed. At about the same time he filed a claim for compensation and received $20 per week for the time he had been unemployed or a total of $502.88 and his hospital bill for $735.13 was paid. He has never at any time since filed any further claim for compensation under the Workmen’s Compensation Act. When he was discharged from the hospital he was told to return if his injured leg or arm “broke down.” After appellant served as a laborer for a short while he was promoted to the status of an apprentice, and by combining his hours as a laborer and an apprentice he accumulated sufficient hours, under existing rules, to be again promoted. Consequently on December 3,1949, he was made a mechanic, and he worked in this category at labor he was physically able to perform until November 29, 1951, when he was furloughed along with others because of a forced reduction in employment.
In September, 1949 [while appellant was still an apprentice] negotiations began between District Lodge 158 and appellee, as apparently was usual each year, relative to working relations between the two. These negotiations terminated in an agreement on October 15, 1949, in St. Louis. At this time there was present, representing appellee, R. J. McDermott, vice president; GL W. Mar riott, general manager; J. N. Henase; and R. C. Cheat-ham, superintendent of automotive equipment. Representing District Lodge 158 was H. I. Hahn, general chairman; D. C. Brown, grand lodge representative for the International Association of Machinists; G. J. Ferguson, committeeman; and J. I. Sharp, local chairman from Kansas City — now deceased.
During the last minutes of the final negotiations on October 15, as referred to above, Mr. Cheatham brought up the matter of Mr. Miller’s status as an employee. It appears that at that time appellant was the only apprentice employee and that if he was immediately promoted to a mechanic he would he unable to hold his job because, at the time, there were unemployed mechanics in the Little Rock area who had more seniority than he had. It was then that Mr. Cheatham, who knew appellant and said he wanted to help him, suggested to the Union representatives that if they were willing for the company to promote appellant to a mechanic that appellee would try to work out some sort of a job that he could handle. Mr. Hahn stated: ‘‘Well, if the company is willing, it is a nice gesture on the company’s part, and if they want to try to help the man, as far as we are concerned, if the management and the local people at Little Rock can work out an arrangement whereby it will he satisfactory to them, of course, we will have no objection.” Mr. Cheat-ham stated that he would contact Mr. Woodyard, the shop superintendent at Little Rock, and see if appellee had enough work to make a job for appellant.
In accordance with the above arrangement representatives of Local Lodge 158 had a conference with Mr. Woodyard relative to appellant’s status as an employee. This meeting resulted in a memorandum prepared by representatives of the Local Lodge, which reads as follows:
“With reference to Mr. J. T. Miller being set up to journeyman mechanic and being placed on light work that he is able to handle, we wish to state that if the company is willing to keep this man on such light work that he is able to do. Due to the fact that this man is disabled to do heavy work, we will agree to protect this man’s job so far as onr seniority right will allow us.
“What we mean by this seniority right is that by using Rule XYI in our agreement no one would have the right to disturb this man, other than men that come under the same rule.
“This is subject to approval by H. I. Hahn and D. C. Brown.”
The above memorandum was mailed to Mr. Cheat-ham in St. Louis. Mr. Cheatham’s reply dated December 3, 1949, is as follows:
“In compliance with the attached as submitted by the local shop committee, Little'Rock garage, concerning apprentice mechanic, Mr. J. T. Miller, if the proposal is accepted, it is understood that Mr. Miller will not be disturbed by the exercising of seniority and bidding, we will place him on a mechanic’s hourly rate with the following duties, hours and days of rest:
‘‘ [Here is set in detail the hours and nature of employment.]
“Will you kindly advise with return of attached copies of this letter, affix your signature on each and retain one copy for your records.”
A copy of the above letter was returned to Mr. Cheatham indorsed as follows :
“ACCEPTED & AEREE:
“For MISSOURI PACIFIC TRANSPN. CO.
“By /s/ R. J. McDermott
“Vice President
“For DISTRICT LODGE No. 158
INTERNATIONAL ASSOCIATION OF MACHINISTS.
“By /s/ D. C. Brown
“Grand Lodge Representative
“By /s/ H. I. Hahn
“General Chairman.”
Appellant’s employment was terminated by a letter dated-November 23, 1951, from Mr. Cbeatbam to D. C. Brown and H. I. Habn, in their representative capacities, which reads as follows:
“With reference to the attached.
“I regret very much to advise that we find it necessary to abolish the position of Mr. J. T. Miller at Little Bock, Ark., which was set np on December 3, 1949, which by reason of a number of changes at that point can no longer be maintained. As yon no doubt are aware, our revenues have dropped to such a low level that the pressure is on me from all angles and it becomes necessary for me to take every step possible to effect reduction in our maintenance costs.”
In accordance with the above appellant was furloughed on November 29, 1951. It appears that a few weeks later appellant had the opportunity, in compliance with company rules, to retain his seniority rating but he chose not to do so. Although appellant has made an effort to obtain employment since he was furloughed he has not been able to do so to any considerable extent due apparently to his disabled condition.
After a careful review of the record and after careful consideration of all of the contentions and arguments set forth by appellant in his able brief, we are led to the conclusion that the decree of the trial court must be sustained. Conceding, for the purpose of this opinion, that appellant has a right, as a third party beneficiary, to maintain an action for relief under the alleged agreement, yet we are unable to find in the memorandum and letters set forth above or in the testimony relative thereto any promise or obligation on the part of appellee to provide lifetime employment for appellant. We gather from the record that appellant would have been without employment in December, 1949, if it had not been for the proposal made by Mr. Cheatham. It appears that his proposal was made and agreed to by the Local Lodge in an effort to avoid appellant’s immediate removal from employment. The arrangement resulted in a benefit to appellant in that he retained employment until the company was forced to furlough him the latter part of November, 1951. We are forced to conclude that appellee discharged all obligations it owed to appellant when it made special provisions for a job that he could handle and retained him therein as long as the job existed. The only thing said by any of appellee’s officers that tends in any way to show that appellant was to have a permanent job was a statement attributed to Mr. Woodyard, the Little Rock shop superintendent. Fred Francis, a witness for appellant, stated that he had a conversation with Mr. Woodyard in which Mr. Woodyard said that some of the boys who had been laid off thought they could “bump” appellant, but Woodyard told him, Mr. Ferguson and Mr. A. J. Pope that there was no way anybody could “bump” appellant as he had a lifetime job because of his injuries. This alleged statement, however, was made by Mr. Woodyard subsequent to the time that the agreement sued on was entered into. At most this amounted to Mr. Woodyarcl’s interpretation of the agreement and he, of course, had no authority to bind appellee. It must also be borne in mind that appellant at no time claimed that he was obligated to work any definite length of time for appellee.
The duration of a contract of employment has been heretofore considered by this court. In the case of Ashley, Drew & Northern Ry. Co. v. Cunningham, 129 Ark. 346, 196 S. W. 798, Cunningham gave the railway company a right of way deed in which it was provided that the latter would give him a job as brakeman at salary of not less than $50 per month. After a year and a half the road was sold to another corporation which a short time later discharged Cunningham. In holding that there was no breach of contract the court stated:
“The contract in the present case can only be construed to provide for hiring, not at the will of one of the parties, but at the will of both, and in this respect it differs from contracts which provide for service as long as the persons to be hired are willing to serve. It being for an indefinite period, it mnst be construed as being terminable at the will of either party.”
Our holding in the case of Moline Lumber Company v. Harrison, 128 Ark. 260, 194 S. W. 25, 11 A. L. R. 466, was to this effect: “. . . where the matter of duration of a contract of employment is not specified in so many words, a hiring being at a specified rate per year, month or week imports a hiring for the full period named, ’ ’ but that where no definite term of employment is specified the employment may be terminated at the will of either party in the absence of other circumstances controlling the duration of employment.
If the agreement here had specified that appellee would give employment to appellant as long as he desired to work, a question would be presented which we need not at this time decide, but the record does not show that such duration of employment was agreed upon.
It is earnestly insisted by appellant that this case should not be decided in accordance with the rules above announced for the reason that appellant had a valid claim which he could have asserted before the Workmen’s Compensation Commission but that he was led and induced by appellee not to file such a claim until after the time for filing had expired. We cannot, however, agree with appellant in this contention. In the first place, if appellant has allowed the time to elapse for filing a claim before the Workmen’s Compensation Commission he may have been willing to do so in order to retain employment with appellee for an indefinite period or as long as appellee was able to provide him with a job. In the second place, there is no testimony in the record to substantiate appellant’s contention that appellee in any way induced him not to file such a claim, and there is certainly nothing in the memorandum and letters from which such conduct on the part of appellee can be inferred.
Accordingly the decree of the trial court is sustained.
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Hart, J.
Appellee, West Hartford Special School District, was created by a special act of the Legislature at its 1907 session. By a special act approved April 17, 1911, the School District of Hartford, the appellant, was enlarged by the annexation thereto of certain contiguous territory then forming a part of West Hartford Special School -District. Section 2 of the act of 1911 provided that the county court of the Greenwood District of Sebastian County should proceed to ascertain, as nearly as possible, the exact amount of revenue paid into the county treasury during the year 1910, “on account of the real estate, personal property, polls and scholastic population embraced within the territory” transferred by the provisions of the act. The section further provided for a transfer of the funds, when so ascertained, from the West Hartford Special School District to the School District of Hartford. Pursuant to the provisions of this act, upon the petition of appellee, the county court proceeded to ascertain the amount of school taxes received from that portion of the territory of appellee district which had been annexed to appellant district and made an or der directing the amount so found to be turned over to the credit of appellant district. Appellee instituted this action in the chancery court against the appellant district and the county judge and county treasurer to enjoin them from transferring said funds to the credit of appellant district. The chancellor was of the opinion that section 2 of the act of 1911, which conferred upon the county court the authority to ascertain the amount of revenue' paid into the county treasury on account of the territory transferred by the terms of the act, and which directed the amount so ascertained to be transferred from the credit of appellee to the credit of appellant district, is in conflict with section 3 of art. 14 of the 'Constitution, and is therefore void. A decree was accordingly entered. To reverse that decree this appeal is prosecuted.
It is contended by counsel for appellee that section 2 of the act of 1911, which provides for an apportionment of the funds between the two districts as above set forth is in violation of section 3, art. 14, of the Constitution, and this view was adopted by the chancellor. The section is as follows:
“The General Assembly shall provide by general laws for the support of common schools by tax, which shall never exceed in any one year two mills on the dollar on the taxable property of the State, and by an annual per capita tax of one dollar to be assessed on every male inhabitant of this State over the age of 21 years. Provided, the General Assembly may by general law authorize school districts to levy by a vote of the qualified electors of such district a tax not to exceed 7 mills on the dollar in any one year for school purposes. Provided,further, that any such tax shall not be appropriated to any other purpose nor to any other district than that for which it was levied. ”
They contend that section 2 of the act of 1911 violates both matters which are forbidden by the last provision of the section quoted. A tax of seven mills was voted in appellee district in the year 1909, and also in the year 1910; four mills being for the construction of a school house, and three mills for the payment of teachers. Counsel for appellee urge that the clause, “Provided, further, that any such tax shall not be appropriated to any other purpose, ” means that a tax voted for building purposes shall not be appropriated for any other purpose than that for erecting a school house. We can not agree with that contention. The section of the Constitution in question provides that the General Assembly may by general laws authorize school districts to levy by a vote of the qualified electors of such district a tax not to exceed a certain rate. This is for all school purposes, and the particular rate which can be levied or used for the purpose of constructing school houses in the several school districts is not designated. Evidently, then, the section of the Constitution in question did not intend to place any restriction on the use of school funds, other than that they should be used for school purposes. If it had, appropriate language to effectuate that intent would have been used. If the framers of the Constitution did not divide the school fund into separate classes, but, on the contrary, did provide a maximum rate which might be levied for all school purposes, how can it be said that such fund is appropriated to another purpose when it is designed and intended to be used for any of the purposes for which it might be levied? The Constitution places no restriction upon the use of school funds other than that they must be devoted to the purposes for which they were levied.
Again, it is contended by counsel for appellee that the fund could not be apportioned between the districts because the section of the Constitution in question provides that no such tax shall be appropriated to any other district than that for which it was levied, and it is this phase of the question which has given us the most concern. In this connection, it maybe said that, under the provisions of art. 14 of the Constitution, the Legislature has enacted statutes for the support and maintenance of common schools by taxes. The several counties of the State have been divided into school districts under both general and special laws, and school boards have been created to manage and control the interests and affairs of such districts. The legislative power in these respects is full and complete, and is conferred by the provisions of the Constitution. This power of the Legislature has been recognized many times by the court in determining questions relating to the formation of school districts, and the changing of the boundaries of districts already created. As a part of 'that power, it may make provision for the division of the 'property, and the apportionment of the funds of the old corporation when a portion of its ter ritory is transferred to the jurisdiction of another school district. The State is the beneficial owner of the fund, and the various school districts, in which the title to the property or funds vests, are trustees for the State, holding the property and devoting it to the use which the State directs. Section 2 of the act of 1911 simply changes the fund from the management of one school district to that of another. The board of school directors are only the agents or trustees appointed to carry out the school system. The fund in question was collected from certain designated territory, which was transferred from one school district to another, and the fund was transferred with it. We do not think the statute in question contravenes either the spirit or letter of the Constitution. In other words, in the case before us, there was a mere alteration of the lines of the district, and the fund transferred was raised by a tax on the people owning and residing upon the lands which were also transferred. In such case we do not think it can be said that the tax is appropriated to any other district than that for which it was levied. Such has been the construction placed upon this section of the Constitution by the previous decisions of this court. School District No. 15 v. School District of Waldron, 63 Ark. 433; Evins v. Batchelor, 61 Ark. 521; Beavers v. State, 60 Ark. 124. While these cases do not directly discuss the question, they necessarily determine it, for they are all cases involving the apportionment of school funds upon the division of school districts, and recognize the validity of statutes providing therefor.
Finally, it is insisted by counsel for appellee that the power of the Legislature to apportion the funds is denied by the last clause of section 24, art. 5, of the Constitution which forbids the enactment of special laws'“where the courts have jurisdiction to grant the powers or the privileges or the relief asked for.” It is plain that this clause does not refer to the jurisdiction conferred upon courts by the statute; for the Legislature may enact laws on all subjects on which its legislation is not prohibited. The Legislature has the power to establish new school districts, or to alter existing ones, and this power may be deelgated to subordinate agencies or officers. Whatever power the Legislature has lawfully conferred upon county courts in these respects, it may take away and confer upon other agencies or tribunals. Hence it is evident that the Constitution, in the clause under consideration, deas not refer to jurisdiction granted to courts by the Legislature, but refers to cases where the courts have jurisdiction, independently of any statute, to grant the relief asked for. j-.v
It follows that the chancellor erred in holding section 2 of the act of 1911 unconstitutional, and the decree will be reversed, and the cause remanded with directions to dissolve the injunction and to dismiss the complaint for want of equity. | [
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George Rose Smith, J.
This is an action brought by the appellant to recover for personal injuries sustained while she was riding as a passenger in the appellee’s car. At the conclusion of the plaintiff’s proof the trial court directed a verdict for the defendant. The question is whether the plaintiff made a case for the jury.
During the 1953-1954 school year Miss Brand was living in Clarksville but was employed as a school teacher at Oark, in the northern part of the county. Miss Brand, the defendant Rorke, and a third teacher made an arrangement by which the two men alternated in driving their cars from Clarksville to Oark. It was decided that the operating expense of a car was $42 a month; so Miss Brand contributed her share by making a monthly payment of $7 to each of the two car. owners.
The complaint alleges that Rorke was negligent in driving an automobile without brakes and with a defective lock on the right front door. At the trial the plaintiff testified that on the day of the accident, as Rorke was driving down a mountain on the highway, the brakes failed. The car gathered speed until Rorke stopped it by swerving to his left, but Miss Brand was thrown through the front door and injured. She was unable to give the cause for the failing of the brakes.
It is insisted by the appellee that this proof falls short of establishing negligence, since the mechanical defect might have arisen suddenly and without fault on Rorke’s part. Even so it was not necessary for the plaintiff to anticipate and disprove this possible explanation. By statute every motor vehicle must be equipped with adequate brakes. Ark. Stats. 1947, § 75-724. It has often been held that proof of the violation of such a safety measure is evidence of negligence. Union Securities Co. v. Taylor, 185 Ark. 737, 48 S. W. 2d 1100; Kendrick v. Rankin, 219 Ark. 736, 244 S. W. 2d 495. The appellant’s testimony constituted substantial evidence to the effect that the statute had been violated; it was for the jury to say whether the defendant was guilty of negligence.
It is also contended that the plaintiff must be held as a matter of law to have been a guest, precluding her from recovery in the absence of willful and wanton misconduct on Rorke’s part. Ark. Stats., § 75-913. Here too the issue was for the jury. It is certainly true that, when a trip is undertaken for social and recreational purposes, a passenger, may be found to be a guest even though he buys a tankful of gasoline for his host or contributes in some other way to the expense of the journey. Ordinarily, however, the issue is one of fact. Corruthers v. Mason, 224 Ark. 929, 277 S. W. 2d 60. Especially is this true with respect to a car pool that is essentially a business arrangement between fellow employees rather than an instance of pure hospitality. Bond v. Sharp, 325 Mich. 460, 39 N. W. 2d 37; Dennis v. Wood, 357 Mo. 886, 211 S. W. 2d 470; Rosa v. Briggs, 200 Ore. 450, 266 P. 2d 427. In the case at bar it cannot be said that the proof shows without dispute that the guest statute is applicable.
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Lee Seamstek, Chief Justice.
On May 11, 1955, the appellee filed a suit in Pulaski Chancery Court, second division, against the Arkansas State Racing Commission, appellants herein, to permanently enjoin the commission from opening or considering any bids received by it pursuant to an advertisement for bids for the granting of a horse racing franchise in Garland County, Arkansas. The bids were to be received and filed no later than 10 A. M. on May 16, 1955. Appellee prayed for an order of the court temporarily restraining and enjoining the commission from opening or considering any of the bids received by it pursuant to this published notice, and from granting any franchise that would impair the appellee’s rights under the franchise granted it by the former commission. A temporary order of the court was granted enjoining the appellants. Subsequently, a motion filed by the appellants to dissolve the temporary restraining order previously issued and to dismiss the complaint of the appellee, was by the court overruled and the injunction was made permanent. The Chancellor further held that the appellee holds a valid franchise which became effective April 13, 1954, and extends for a period of ten years from that date.
The evidence reveals that the appellee was granted a valid and exclusive franchise on May 14, 1945, by the Arkansas State Racing Commission, to operate a horse racing track in Garland County, Arkansas. The franchise was to extend for a period of ten years from that date. In March, 1954, the Arkansas State Racing Commission had published a notice in the newspapers, as required by law, soliciting bids for the granting of a ten-year exclusive franchise for the purpose of horse racing in Garland County, Arkansas. The franchise was to commence on May 14, 1955, and extend for a period of ten years. In response to this published notice, the appellee submitted a bid in the amount of $100 for the franchise. On April 13, 1954, the commission declared appellee’s bid to be the highest and best offered, therefore, it granted appellee the franchise for a period of ten years beginning May 14,1955, which was 13 months subsequent to the time it was granted.
It is the contention of the present commission that the franchise granted in 1954, by the predecessor commission, is void as against public policy and as having been made without any power and authority in the predecessor commission to make the contract binding on the successor commission. Acting upon this premise and in compliance with an opinion of the Attorney General, the successor commission,- on April 24, 1955, advertised and solicited bids for the granting of a ten-year exclusive franchise for horse racing in Garland County, to take effect after expiration of the previous franchise. In response to this published notice, the commission has received and novr has in its possession, three sealed bids for the ten-year franchise. The bids have not been opened due to the injunction issued in this case.
The appellee has, under successive ten-year franchises, operated a horse racing track at Hot Springs, Arkansas, since 1935. During that period of time appellee has paid the State of Arkansas more than nine million dollars in revenue taxes. Once each year, for a 31-day period, the appellee has conducted a racing meet at Hot Springs. In 1955, the appellee paid the State the sum of $864,107.81, in revenue taxes. The appellee has expended large sums of money in improving and enlarging its racing plant; more than $300,000 since the issuance of the franchise of April 13, 1954. The appellee contends that these capital expenditures for plant improvement could not have been justified without first securing the franchise of 1954, which was to become effective on May 14, 1955, and extend for a period of ten years.
The controlling statute in this case is Act 46 of the Acts of 1935, as amended, appearing as Ark. Stats., Sec. 84-2701, et seq., (1947). The relevant portions of Section 9 of the Act read:
“Only one franchise to operate a race track shall be granted in any county, and said franchise shall in every instance be an exclusive franchise to hold racing meetings in the county for which it is issued . . .
‘£ The franchise shall extend for a period of ten years from the date of the acceptance of the successful bid by the Commission . . .
“The Commission may at any time, and under the procedure above provided, advertise for bids on franchise in any county in the State in which there is not at the time an existing and exclusive franchise for the conduct of racing meetings.”
The franchise that was granted to appellee on April 13, 1954, to commence May 14, 1955, is void. The statute is specific in providing that only one racing franchise can exist in any one county at any one time and that such franchise shall be an exclusive one. The commission is authorized to advertise for bids for a franchise only in a county in which, there is not at the time an existing and exclusive franchise in existence. Further, the franchise is void since it is to commence some 13 months after the acceptance of the bid by the commission. The statute provides that the franchise shall extend for a period of ten years from the date of the acceptance of the successful bid by the Commission. To grant a franchise at that time, April 13, 1954, would be granting an additional franchise in that particular county in violation of the plain wording of the statute.
The commission had no authority to accept a bid and award a franchise to commence at a time in the future subsequent to the expiration of the present valid existing franchise. That is particularly true in this case because the law fixes the time the franchise goes into effect, as heretofore stated.
Estoppel does not apply to the facts in this case. It cannot be used to make an unauthorized act of a state agency lawful, when such act is unlawful or beyond the agencies power to act. State Highway Comm. v. McNeil, 222 Ark. 643, 262 S. W. 2d 129, and cases there cited.
The trial court erred in granting the injunction herein, therefore, the cause is reversed and dismissed. | [
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Ed. F. McFaddin, Associate Justice.
This is an election contest; and after disposing of the issues between the parties we will consider which Act is governing as between Act 211 of 1953 and Act 241 of 1953.
Appellant, Amos Horn, and appellee, S. D. White, were rival candidates for the office of County Judge of Montgomery County in the General Election on November 2,1954. On the face of the official returns White received a majority of the votes cast; and thereafter Horn instituted this action as an election contest under § 3-1201 et seq. Ark. Stats. White moved to have the contest dismissed, claiming that Horn had not complied with the law in having his name placed on the ticket as an independent candidate at the General Election. White showed that Horn had filed his certificate of nomination only 20 days before the General Election. That was the minimum time, as provided by § 3-264 Ark. Stats.; but Act 211 of 1953 made the minimum time for such filing to be 45 days, and Act 241 of 1953 made the minimum time for such filing to be 30 days. White claimed that under either of the 1953 Acts Horn’s filing was too late. The Trial Court sustained White’s motion to dismiss; and Horn has appealed.
I. Appellant’s Nominating Petition Was Filed Too Late. Horn’s only argued grounds for reversal are: (a) that said Acts 211 and 241 are so conflicting that they cancel out each other and both are void; and (b) that the law still remains as it appears in § 3-264 Ark. Stats. We find ourselves unable to agree with this argument. Under either of the 1953 Acts Horn’s nominating petition was filed too late; and at all events one or the other of the 1953 Acts is governing. It is true that there is some conflict between the two Acts of 1953 but we hold — as hereinafter developed — that Act 211 of 1953 is the governing law and that Horn failed to file his petition within the 45-day minimum time limit fixed in that Act.
II. Election Law Question. Ordinarily an opinion of this Court need go no further than has been above stated; but we are now constrained to go further because the question posed by the parties (that is, whether Act 211 of 1953 or Act 241 of 1953 is the governing law) relates to an interpretation of certain provisions in our election laws; and it is the policy of this Court to settle such questions for the future guidance of the public. In Carroll v. Schneider, 211 Ark. 538, 201 S. W. 2d 221, after holding that the question raised in the particular case was moot, the late and beloved Justice Frank G. Smith, in declaring what was the election law, said:
“ There is here a question of practical importance and of great public interest, and if not now decided, some other candidate may be deprived of the right to run for a public office and his right to do so may become a moot question before it could be decided, on account of unavoidable delay in the law.”
So here, with an election to be held before the next regular convening of the Legislature, there will remain the confusion as to which of the Acts of the 1953 Legislature is to govern; and substantial rights of other parties may be lost unless we go further and here decide the question. We recognize that there is a conflict be tween Act 211 of 1953 and Act 241 of 1953 ; and we first give the germane laws prior to 1953 and then the changes sought to he accomplished by each of the 1953 Acts.
Law Prior to 1953
(a) Section 3-264 Ark. Stats, provided: “... certificates of nomination herein directed to be filed with the County Election Commissioners shall be filed not more than sixty (60) days and not less than fifteen (15) days before the election.”
(b) Section 3-806 Ark. Stats, provided that not less than 18 days before each election the Secretary of State shall certify to all the Election Commissioners full lists of all candidates to be voted for in their Counties as the nomination had been certified to him.
(c) Section 3-807 Ark. Stats, made the same time limit of 18 days for certification of constitutional amendments.
(d) Section 3-824 Ark. Stats, (being Sec. 7 of Act 353 of 1949) provided that the order of the names of the candidates on the ballot would be determined by lot at a public meeting of the County Board of Election Commissioners, but gave no minimum time for the holding of such public meeting.
Changes by Act 211 of 1953.
The Act 211 of 1953 changed each of the aforementioned provisions in the following regards:
(a) Section 3-264 was changed to read, in part: “. . . certificates of nomination herein directed to be filed with the County Election Commissioners shall be filed not more than sixty (60) days and not less than forty-five (45) days before the election.”
(b) Section 3-806 was changed to provide that not less than 42 days before the election the Secretary of State was to certify to the County Election Commissioners the full lists of all candidates to be voted for in their respective Counties.
(c) Section 3-807 was changed to make the minimum requirement for certification on constitutional amendments and other questions to be 42 days.
(d) Section 3-824 was changed to provide that the meeting of the County Board of Election Commissioners to determine the order of the names of the candidates on the ballot should be held “. . . . not less than forty (40) days prior to such General Election.”
In short, Act 211 of 1953 was a fairly comprehensive Act affecting four different sections of the law and fixing a definite uniform minimum time limit for certain acts to be done.
Changes by Act 211 of 1953.
Act 241 did not purport to amend Act 211, but rather to amend only § 3-264 Ark. Stats., and related only to the time for filing certificates of nomination. The portion of said Act 241 here germane reads, in part:
“Certificates of nomination herein directed to be filed with the County Election Commissioners shall be filed not more than sixty (60) days and not less than thirty (30) days before the election.”
Resolving The Conflict Between The 1953 Acts.
The conflict between Act 211 and Act 241 is that Act 211 makes the minimum time for filing certificate of nomination to be 45 days, and Act 241 makes the minimum time to be 30 days. Our problem is to resolve the conflict. The books are filled with cases giving rules for the construction of conflicting statutes, but the primary rule of statutory construction is for the Court to ascertain the Legislative intent; and in ascertaining the Legislative intent, the Courts resort to secondary-rules of construction. Some of these are the “public policy” rule and the “harmony” rule. Illustrative of these, we quote from the early case of Hill v. Mitchell, 5 Ark. 608:
“We lay down this general principle upon the subject: if two statutes passed at the same time, in pari materia, are opposed to each other, and one of them relates to a primary interest of public policy, and the other, to a secondary consideration, that which is greater in principle must govern.”
And in Hackett City v. State, 56 Ark. 133, 19 S. W. 426, Chief Justice Cockrill quoted the language of Judge Brewer:
“ ‘Where there is no way of reconciling conflicting clauses of a statute, and nothing indicating which the Legislature regarded as of paramount importance, force should be given to those clauses which would make the statute in harmony with other legislation on the same subject.’ ”
There is another rule of statutory construction which is that, as between two conflicting statutes passed at the same session, ordinarily the statute last passed is to govern; but this “last passed” rule is admitted to be merely a rule of statutory construction and must and does yield when it is clear that the Legislature intended the earlier Act passed at the same session, to be the governing Act. In 82 C. J. S. 836, in discussing conflicting or inconsistent statutes and, after recognizing the rule of construction that generally “the last Act passed” is the governing Act, the holdings of the various cases are, however, summarized in this language:
“Where Acts passed at the same session contain conflicting clauses, the whole record of legislation will be examined to ascertain the Legislative intent, and such intent, if ascertained, will be given effect, regardless of priority of enactment. ’ ’
’With these rales of construction in mind, we turn to a study of the Acts 211 and 241 to ascertain the Legislative intention. As aforesaid, the only conflict between Act 211 and Act 241 is that Act 211 makes the minimum time — -for filing certificate of nomination — to be 45 days and Act 241 makes the minimum time to be 30 days. Thus the Act 241 affected only one part of the law. But if we give effect to Act 241 and fix 30 days as the minimum time for filing the certificate of nomination, then under Act 211 the Secretary of State must make the certification to the County Election Commissioners 42 days before the election, which would be 12 days before the last day for filing the certificate of nomination. Likewise, under Act 211, the drawing for places on the ticket would be 40 days before the election, which would be 10 days before the last day the candidate’s name could be certified by the Secretary of State under Act 241. Furthermore, under Sec. 5 of Act 211, the absentee ballots for electors in the armed forces might be circulated before the Secretary of State had ever certified out the full list of candidates, if the 30-day minimum in Act 241 of 1953 should be followed.
It is therefore clear that Act 241 of 1953 presents an unworkable Act because it does not attempt to cover all of the matters in Act 211 and leaves the time table in confusion, as hereinbefore stated.
In the light of all of the foregoing, it is clear that the intent of the Legislature was to fix a definite time table schedule. . The Act 211 considered not only the certificates of nominations, but also the certification of constitutional amendments, the drawing of places on the ticket, and the sending out of absentee ballots; whereas the Act 241 merely affected the time for filing certificate of nomination. It would be putting form above substance and the letter above the spirit of the law to hold that Act 241 changed Act 211. We therefore find and declare that the Legislative intent was that Act 211 be the governing Act; and we so declare and hold Act 241 to be nullified by Act 211. See Jackson v. State, 45 Ark. 158; Snow v. Riggs, 172 Ark. 835, 290 S. W. 591; and 50 Am. Jur., p. 484 et seq. This disposes of the election question and provides a guide for the action of officials.
Affirmed.
For reasons best known to themselves, neither party has mentioned the possible application of the well-known rule that certain provisions of election laws are mandatory before the election and merely directory after the election. See Orr v. Carpenter, 222 Ark. 716, 262 S. W. 2d 280. It might be that the rule stated in 18 Am. Jur. 263 could have been invoked by the appellant. That rule states: “It is a firmly established general rule that objections to irregularities in the nomination of a candidate should be taken prior to election.” But the fact remains that no such suggestion of the mandatory-directory rule has been made by the parties herein: so we decide the case on the issues as briefed. This opinion, however, does not prevent the possible application of the mandatory-directory rule if it should ever be urged in a case like this one.
Here is the Legislative history of the two Acts:
Act. 211 (S.B. 26) Act 241 (S.B, 7)
Introduced: Jan. 14 Jan. 12
Passed Senate: Feb. 5 Feb. 23
Passed House: Feb. 20 Feb. 24
Enrolled: . Feb. 26 Mch. 2
Delivered to
Approved by
Governor: Feb. 26 Mch. 2
Governor: Mch. 4 Mch. 6
See McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646; and the many other cases collected in West’s Ark. Digest “Statutes,” Key No. 180.
See Roberts v. Tice, 198 Ark. 397, 129 S. W. 2d 258, 122 A. L. R. 1177.
This is particularly true when, as here, neither Act contained an emergency clause and both Acts went into effect the same day — that is, 90 days after the adjournment of the Legislature.
The Illinois Court in Potosi v. Metropolitan, 95 N. E. 2d 529, quoted this language: “The rule that where two conflicting enactments are passed at the same session, the latest enactment in point of time will prevail, as well as all other rules of construction dealing with repeals by implication, are mere canons of construction. Such canons are only aids to the ascertainment of the legislative intent and must yield to such intent if the same be otherwise. They should never be followed to the extent of defeating or overriding the definite intent of the legislature.”
In the case of Bowles v. Crew, 59 Fed. Supp. 809, the U. S. Dist. Court of California used this clear language: “In resolving claimed conflict between Legislative enactments, it should be our aim to envisage the completeness of the Legislative scheme and to avoid an interpretation which would destroy it as a harmonious whole.”
To the same effect, see also Southwark Bank v. Commonwealth, 26 Pa. 446. | [
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Ed. F. McFaddin, Associate Justice.
Tbis appeal results from the condemnation of lands for the widening of a highway. The County Court of Union County made its order appropriating each of two parcels; and the landowners — Richardson and Harrell — filed their respective claims, which were denied. Appeals were perfected to the Union Circuit Court where the cases were consolidated and tried to a Jury. A verdict was rendered in favor of Mr. and Mrs. Richardson for $3,086.00, and in favor of Mr. and Mrs. Harrell for $4,000.00. Union County has appealed, urging the two assignments now to be discussed:
Assignment No. 1
The appellant says: “That the verdicts of the Jury were excessive; that there is no substantial evidence in the record to support these verdicts; that the verdicts are the result of bias and prejudice and that witnesses for plaintiffs failed to show any fair and reasonable basis for their opinion.” In testing the sufficiency of the evidence to sustain the verdicts as against the attacks made by appellant in this assignment, we consider separately the evidence in each claim.
(a) The Richardson Claim. Mr. and Mrs. Richardson’s property had a frontage of 740 feet on the highway and the County took a 30-foot strip from the entire frontage of the Richardson land. Here is Mr. Richardson’s testimony, as contained in appellant’s abstract:
“The taking required the moving of my fence back, the replanting of everything that I had there and the fixing of my driveway as it had been before. Union County moved my fence; they put the stakes up but that is as far as they went. I lost all of my fencing wire and the replacement value of it would be $140.00. The labor to put the fence wire on the stakes would cost $10.00 or $12.00. Along the front of my place, I had climbing roses placed 10 feet apart; I also had five pink dogwood trees, some bulbs and other things which were lost. My rose bushes were six years old. I believe the value of those rose bushes would be $4.00 each. I had about 10 crape myrtle trees there and about 2,000 bulbs. The value of the bulbs to me would be about $700.00. What they would be worth to somebody else would be a lot different. I would estimate the value of the pink dogwood trees at $200.00 each. I believe that I had between 35 and 50 oak trees and I would value them between $40.00 and $50.00 each.
‘ ‘ Before my land was taken I had a driveway which was blacktopped with cement side curbings. They have replaced my driveway with two cement slabs two feet wide. I believe it would cost $300.00 to $375.00 to put my driveway back like it was. In my opinion, tbe tract of land taken by Union County would be worth at least $4,000.00. In my opinion the reasonable cash value of my property before it was taken was $37,500.00 and it was $32,500.00 afterwards.”
The Eiehardsons introduced corroborative testimony; and the County introduced evidence tending to show that Mr. Eichardson’s ideas of his damages were tremendously magnified and that, in fact, he was benefited far more than he was damaged. But the problem of weighing the testimony of both sides was a matter for the Jury, as was also the question of determining the credibility of the witnesses. (Bridgman v. Baxter County, 202 Ark. 15, 148 S. W. 2d 673.) The Jury elected to adhere to the testimony of Eichardson and his witnesses rather than to that of appellant’s witnesses. We have detailed sufficient of Mr. Eichardson’s testimony to demonstrate that there was substantial evidence upon which to base the verdict of $3,086.00 for the Eichardsons. In addition, the Jury actually viewed the premises. We find nothing to indicate that the Jury was biased or prejudiced; and we find that the witnesses showed the basis for their opinions. In short, appellant’s first assignment is without merit insofar as concerns the Eichardsons’ claim, because Eichardson and his witnesses made a case which measured up to the requirements contained in the cases relied on by appellant, to-wit: Ark. State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738; Malvern & Ouachita River RR. Co. v. Smith, 181 Ark. 626, 26 S. W. 2d 1107; City of Harrison v. Moss, 213 Ark. 721, 212 S. W. 2d 334; and Texas Illinois Co. v. Lawhon, 220 Ark. 932, 251 S. W. 2d 477.
(b) The Harrell Claim. Mr. and Mrs. Harrell’s property had a frontage of 340 feet and a depth of only 150 feet; a twenty-foot strip was taken from the entire frontage, leaving a depth of only 130 feet and placing the Harrell home 20 feet closer to the highway. Here is a portion of Mr. Harrell’s testimony, as contained in the appellant’s abstract:
“Prior to the new Highway, my property was practically on a level with the road. It was a desirable place to live, but now it isn’t. They took a number of the trees when they put the new road in. Prior to the taking we had a good gravel driveway on a level with the road. Now, my place sits on an embankment fully six feet high from the middle of the highway. My yard is now much smaller than it used to be; to have it as it was before would require the moving of the house and the excavation of some dirt. It would cost $2,000.00 to move all that dirt.
“I have lived on my property for nine years and it is my home. Before the new Highway was put in, I could have sold the property for $15,000.00 to $18,000.00. Now I do not believe I could get more than $7,000.00 or $8,000.00 for it.”
Other witnesses for Harrell stated: that to grade down the Harrell lot and move back the house would cost $4,265.13 ; that the value of the Harrell property before the taking was $18,000.00 and the value after the taking was only $8,000.00; and that the value of the Harrell property was reduced 50% by the taking. According to appellant’s witnesses, the Harrells were really benefited by the taking; but, as heretofore stated, the matter of damages was for the Jury to decide on the conflicting testimony. It is sufficient for us to say that there is substantial evidence to support the verdict of $4,000.00 for the Harrells; and we conclude that the appellant’s first assignment is also without merit regarding the Harrell claim.
Assignment No. 2
In this assignment the appellant says: ‘ ‘ The Court erred in stating that assessed value was not proof of the value and in refusing to permit cross-examination of appellees relative to assessments, which error was not cured by subsequently permitting testimony by the as sessor thereon.” In the cross-examination of Mr. Richardson, this occurred:
“ Q. How much do you have that property assessed for ?
“Mr. Brown (interrupting): Your honor, we object to the question.
“The Court: The objection is sustained.
“A. What I think it is worth, and what I have it assessed for is two different things.
“The Court: The objection is sustained; that is not proof of the value. I have ruled on that.
“Mr. Hart: Note our exceptions to the ruling of the Court.”
The appellant, in arguing this assignment, says:
“Ark. Stats. 76-521 provides that all Courts and juries in condemnation cases for Highways shall take in consideration the fact that lands are required to be assessed at 50% of their true value. Appellant recognizes that the assessed valuation is not a controlling factor in arriving at the value of condemned property; however, it is a factor to he considered. Montgomery County v. Cearley, 192 Ark. 868, 95 S. W. 2d 554 (1936); Washington County v. Day, 196 Ark. 147, 116 S. W. 2d 1051 (1940).”
We do not find anywhere in the record that the appellant sought to cross-examine either of the Harrells on the assessed valuation of their property. So this assignment goes only to the Richardson claim. But even as to it, we hold that the record shows the appellant has no just cause to complain.
The ruling in which the Court refused to allow Mr. Richardson to be cross-examined on the assessed value of his property appears on page 65 of the transcript. The next day in the course of the trial (and on page 210 of the transcript) the appellant was permitted to call the tax assessor of Union County, and he testified that the Richardson property was assessed at $1,535.00 and the Harrell property was assessed at $300.00; and on cross-examination the assessor testified as follows:
“Q. Mr. Jerry, property is assessed, yon have been there and you have looked over your books?
“A. Yes, sir.
“Q. That is no criterion for the valuing of property in this county is it?
“A. No, sir.
“Q. It is no test at all, is it?
“A. It’s their assessment, Mr. Brown, their valuation they put on their property.
‘‘Q. There is very valuable property in this county that is assessed at almost a nominal figure, is there?
“A. I imagine that is so.”
Furthermore, at the request of the appellant, the Court instructed the Jury:
“You are instructed that the law of this State provides that all lands are required to be assessed at fifty per cent of their true value, and it is proper for you to consider this, together with all other facts and circumstances in evidence before you in fixing the value of the lands taken.”
Since the appellant (1) never sought to recall Mr. Richardson for further cross-examination after the assessor testified; (2) never showed that Mr. Richardson personally knew for what amount the property was assessed; and (3) appellant’s own witness, the tax assessor, testified, without objection, that in Union County assessed valuation had practically no relation to value — • in view of all these matters and the instruction previously copied — we hold that the appellant is in no position to complain about the Court’s ruling in regard to the cross-examination of Richardson.
Affirmed.
The Trial Court stated that this evidence was admitted only to be considered with the other circumstances to arrive at the correct measure of damages. | [
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LARRY D. VAUGHT, Chief Judge.
I,Appellant Colten Cockrell was convicted by the Pulaski County Circuit Court of possession of a controlled substance (two counts), possession of drug paraphernalia, and carrying a weapon. He was sentenced to five years’ probation. On appeal he argues that the trial court erred in (1) denying his motions for directed verdict because there was insufficient evidence to support the conviction for carrying a weapon, and (2) denying his motion to suppress evidence obtained in violation of Arkansas Rules of Criminal Procedure 2.2 and 3.1. Because we find merit in Cockrell’s motion-to-suppress argument, we reverse and remand for further proceedings.
At approximately 6:12 p.m. on January 25, 2008, Officer Ryan Baker of the Sherwood Police Department was patrolling a two- to three-mile area where twelve armed robberies had |2occurred within the last two weeks. Officer Baker, who was normally assigned to the training division, had been assigned to robbery detail because of the high number of recent robberies. While on patrol, the officer observed a lone white truck properly backed into a parking space in the side lot of Kohl’s department store, near the loading dock. The officer, unable to see the driver (later identified as Cockrell) due to darkness, pulled his patrol car directly in front of the truck, turned on his bright headlights, his spot light, and his take-down lights, and then called for assistance. The officer then approached the passenger-side window with his flashlight in one hand and his gun in the other. As he approached the truck, Officer Baker observed Cockrell reaching down. While unable to see Cock-rell’s hands, the officer was able to see what he thought was a small club lying in the front-seat floorboard and a baseball bat behind the seat of Cockrell’s truck.
When Officer Chris Madison arrived, Officer Baker walked to the driver’s side of the truck and asked Cockrell to step out of the vehicle. Officer Baker asked Cockrell if he played baseball or if he had any other baseball equipment in the vehicle, and Cockrell answered no. Officer Baker also asked Cockrell why he had a baseball bat, and Cockrell answered that he “traveled through Rose City, and you never know when you might need one.” Still standing outside Cockrell’s vehicle, the officer observed in plain view a straw with a band-aid wrapped around it lying on the floorboard and a razorblade. The straw and the razorblade had cocaine residue on them. Officer Baker placed Cockrell under arrest. During a search of the truck | ¡¡incident to the arrest, the officer found a small plastic bag containing cocaine. A subsequent search of Cockrell revealed fifteen hydrocodone pills in his pocket.
Prior to trial, Cockrell moved to suppress all the evidence obtained as a result of Officer Baker’s stop and subsequent searches of Cockrell and his vehicle. At the suppression hearing, Cockrell argued that the stop was unlawful pursuant to Rules 2.2 and 8.1 of the Arkansas Rules of Criminal Procedure and a violation of his right to be free from unreasonable searches and seizures under the Fourth and Fourteenth Amendments of the United States Constitution. The trial court denied the motion to suppress, and a bench trial immediately followed. Cock-rell was found guilty of all charges.
Cockrell raises two points on appeal. The first is that the trial court erred in denying his motions for directed verdict because there was insufficient evidence to support the conviction for carrying a weapon. Cockrell’s second argument on appeal is that the trial court erred in denying his motion to suppress evidence obtained in violation of Arkansas Rules of Criminal Procedure 2.2 and 3.1 and his constitutional rights to be free from unreasonable searches and seizures.
I. Sufficiency of the Evidence
For double-jeopardy reasons, we first consider Cockrell’s claim that there was insufficient evidence to support his conviction for carrying a weapon. Stone v. State, 348 Ark. 661, 666, 74 S.W.3d 591, 594 (2002). We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Stone, 348 Ark. at 666, 74 S.W.3d at 594. It has been repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most ^favorable to the State and consider only the evidence that supports the verdict. Id., 74 S.W.3d at 594. We affirm a conviction if substantial evidence exists to support it. Id., 74 S.W.3d at 594. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Id. at 667, 74 S.W.3d at 594. Further, we will not second-guess credibility determinations made by the fact-finder. Id., 74 S.W.3d at 594.
At trial when moving for directed verdict on the carrying-a-weapon charge, Cockrell’s counsel argued “there’s been no evidence that Mr. Cockrell intended to use [the bat and landscape tool] as a weapon or that he in fact used them as a weapon.” However, on appeal Cockrell has changed his argument, focusing on the language of Arkansas Code Annotated section 5-73-120(a), (b)(1) (Repl.2005), arguing:
[T]here was no evidence in the record that the [bat and landscaping tool] had been adapted for the purpose of inflicting serious physical injury or death by striking. Officer Baker testified that he did not observe any changes or alterations to the alleged weapons found in Mr. Cockrell’s truck.
Because Cockrell’s argument on appeal is made for the first time, we will not address it. Stone, 348 Ark. at 668, 74 S.W.3d at 595. Accordingly, we affirm the trial court on the sufficiency point.
II. Motion to Suppress
Cockrell’s central contention on appeal is that Officer Baker’s stop was illegal, and thus, any items seized from him and his vehicle should be suppressed. We review suppression challenges de novo based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 411, 94 S.W.3d 892, 894 (2003). We reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Boldin v. State, 373 Ark. 295, 302, 283 S.W.3d 565, 570 (2008). Additionally, we defer to the circuit court’s superior position to judge the credibility of witnesses. Id., 283 S.W.3d at 570.
A. Rule 2.2
Cockrell contends that Officer Baker’s stop was unlawful pursuant to Rule 2.2 of the Arkansas Rules of Criminal Procedure. Rule 2.2 allows officers to request any person to furnish information or otherwise cooperate in the investigation or prevention of crime and provides:
A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
Ark. R.Crim. P. 2.2(a). This occurs when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Thompson v. State, 303 Ark. 407, 409, 797 S.W.2d 450, 451 (1990). Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the Fourth Amendment. Id., 797 S.W.2d at 451. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. Id., 797 S.W.2d at 451-52. A seizure occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Id., 797 S.W.2d at 451.
We agree with Cockrell that Officer Baker’s stop was not lawful under Rule 2.2 because it was not a consensual encounter. According to the testimony of the officer, he pulled his patrol car in front of Cockrell’s truck in such a position that Cockrell was blocked in and could not drive away. Also, the officer testified that he had his bright headlights, his spot light, and his take-down lights shining on Cockrell and had a gun in hand when he approached Cockrell. We believe that reasonable persons under these same circumstances would not have felt free to leave the encounter based on the officer’s show of force and authority, and we further hold that this evidence establishes that this stop was a seizure within the meaning of the Fourth Amendment. See State v. McFadden, 827 Ark. 16, 938 S.W.2d 797 (1997) (affirming trial court’s grant of motion to suppress, holding that officer’s pursuit, with blue lights flashing, and stop of defendant’s vehicle and request for defendant to accompany the officer to another’s home “went far beyond the sort of encounter authorized by Rule 2.2 and became a seizure such that a reasonable person in that situation would not have believed he was free to leave”; “this was not a situation where |7the officer merely approached two men on a public street and asked if they would provide information”); Cf. Thompson, 303 Ark. at 410, 797 S.W.2d at 452 (affirming trial court’s denial of suppression motion under Rule 2.2 because no seizure took place where the officer — who approached defendant’s vehicle at 1:40 a.m. — did not restrain the liberty of the driver or show authority by exhibiting a weapon or ordering the driver out of the vehicle).
B. Rule 3.1
The next question is whether Officer Baker’s seizure of Cockrell was authorized pursuant to Rule 3.1 of the Arkansas Rules of Criminal Procedure. Rule 3.1 governs investigatory stops and provides that an officer may justifiably restrain an individual for a short period of time if they have an “articulable suspicion” that the person has committed or is about to commit a crime. Thompson, 303 Ark. at 409, 797 S.W.2d at 451. Rule 3.1 states in pertinent part:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.
Ark. R.Crim. P. 3.1. Reasonable suspicion is defined by our rules as
a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.
Ark. R.Crim. P. 2.1. Arkansas Code Annotated section 16-81-203 (Repl.2005) also provides that an officer must have reasonable grounds to detain a suspect under Rule 3.1. This statute includes, but is not limited to, the following grounds:
k(l) The demeanor of the suspect;
(2) The gait and manner of the suspect;
(3) Any knowledge the officer may have of the suspect’s background or character;
(4) Whether the suspect is carrying anything, and what he or she is carrying;
(5) The manner in which the suspect is dressed, including bulges in clothing, when considered in light of all of the other factors;
(6) The time of the day or night the suspect is observed;
(7) Any overheard conversation of the suspect;
(8) The particular streets and areas involved;
(9) Any information received from third persons, whether they are known or unknown;
(10) Whether the suspect is consorting with others whose conduct is reasonably suspected;
(11) The suspect’s proximity to known criminal conduct;
(12) Incidence of crime in the immediate neighborhood;
(13) The suspect’s apparent effort to conceal an article; and
(14) The apparent effort of the suspect to avoid identification or confrontation by a law enforcement officer.
Ark.Code Ann. § 16-81-208. The justification for the investigatory stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person may be involved in criminal activity. Davis, 351 Ark. at 415, 94 S.W.3d at 897 (citing Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982)). Under that test, the facts articulated by the officer are not viewed in isolation, but are taken together. Davis, 351 Ark. at 415, 94 S.W.3d at 897.
Cockrell contends that Officer Baker’s investigatory stop was unlawful under Rule 3.1. Based on the totality of the circumstances, we agree and hold that Officer Baker did not have justification for an investigatory stop under Rule 3.1 because he did not have specific, particularized, and articulable reasons indicating that Cockrell may have been involved in the recent armed robberies.
According to Officer Baker, based on his training, he had reason to suspect Cockrell was | ¡Involved in the recent armed robberies because Cockrell was within the area where twelve robberies had occurred in the past two weeks, it was dark outside, and Cockrell’s truck was backed into a parking spot away from other vehicles in a side lot. The officer added that because the robbers were getting away so quickly that it was suspected that a get-away car was nearby or the robbers lived in the area. This is the only evidence identified by Officer Baker that he claimed supported his decision to stop and seize Cockrell.
We hold that this evidence fails to establish reasonable articulable suspicion that Cockrell was involved in the armed robberies. All this evidence demonstrates is that Cockrell was legally and properly parked in a business parking lot during regular business hours. Because he was backed into the parking space or because he was alone in the side parking lot are not bases for reasonable suspicion that he was involved in the armed robberies. This is nothing more than an innocuous set of circumstances that could encompass the everyday common activities of law-abiding citizens. Granted, Cockrell was within the two- to three-mile “armed-robbery zone”; however, merely being present in a high-crime area does not rise to reasonable suspicion sufficient to authorize an investigatory stop. See Stewart v. State, 332 Ark. 138, 147, 964 S.W.2d 793, 798 (1998); Jennings v. State, 69 Ark. App. 50, 54, 10 S.W.3d 105, 108 (2000).
Moreover, Officer Baker testified that he did not witness Cockrell commit any felony or misdemeanor offenses. The officer also admitted during his testimony that he had not received any information from any third party that Cockrell and/or his vehicle had been involved in any of the recent armed robberies. Finally, there was evidence that a black truck, and white passenger vehicle, and a black man were involved in the armed robberies, none of which matched |1ftCockrell’s or his vehicle’s description.
The State argues that of the fourteen statutory grounds that support the detention of a suspect under Rule 3.1, it presented evidence of six. Ark.Code Ann. § 16-81-208(4), (6), (8), (11), (12), (13). At most the State presented evidence that five grounds existed on the day in question. Ark.Code Ann. § 16-81-203(4), (8), (11), (12), (13). We do not consider factor six to be significant — it may have been dark outside, but it was only 6:12 p.m. We further note that three of the grounds argued by the State involve Cockrell having been within a two- to three-mile area that had recently experienced multiple armed robberies. Ark.Code Ann. § 16-81-203(8), (11), (12). The only other factors that existed were that Cockrell had a bat and landscaping tool in his vehicle and that he tried to conceal something when the officer approached. Ark.Code Ann. § 16-81-203(4), (13).
Therefore, the State only established that Cockrell was parked in the recent armed-robbery zone, that he had a bat and a landscaping tool in his vehicle, and that he tried to conceal something upon Officer Baker’s approach. Again, just being present in a high-crime area does not rise to reasonable suspicion sufficient to authorize an investigatory stop. Stewart, 332 Ark. at 147, 964 S.W.2d at 798; Jennings, 69 Ark. App. at 54, 10 S.W.3d at 108. We attach little significance to the presence of the bat and the landscaping tool in Cockrell’s vehicle because these items were not considered by Officer Baker when he decided to stop Cockrell. This is because the officer did not see these items until after he had seized Cockrell by blocking his vehicle and approaching him with lights and a weapon. Moreover, there is no evidence in the record that bats or landscaping tools had been used in any of the recent armed robberies. As lusuch, these factors considered alone or together do not give rise to reasonable suspicion that Cockrell was involved in the armed robberies or any other crime.
The State relies on Jefferson v. State, 349 Ark. 236, 76 S.W.3d 850 (2002). There, our supreme court held that the officer had reasonable, articulable suspicion to stop the defendant where the evidence demonstrated that he, at 2:00 a.m., was found walking between two trailers that were parked in an area where drugs and prostitution were prevalent. When the defendant saw the officers, he appeared startled, changed the direction in which he was walking, and quickened his pace. When the defendant finally responded to officers calling to him, he slipped his right hand into his pocket, pulled something out, and dropped it on the ground. Jefferson, 349 Ark. at 240, 76 S.W.3d at 852.
The case at bar is distinguishable. Cockrell was legally and properly parked in a department-store parking lot during business hours. It was 6:12 p.m. — not 2:00 a.m. Cockrell was parked within the two-to three-mile zone that had been victim to recent armed robberies, but there was no evidence that any of the recent criminal activity had taken place at Kohl’s or any other large department store. Finally, Cockrell did not try to evade or avoid Officer Baker upon his approach.
In sum, when making an independent determination based on the totality of the circumstances, we hold that Officer Baker’s stop violated both Rules 2.2 and 3.1 of the Arkansas Rules of Criminal Procedure. There was clearly a “seizure” under the Fourth Amendment and based on the facts in this case, the officer did not have reasonable suspicion that Cockrell had committed or was about to commit robbery at the time of the “seizure.” Accordingly, the items | ^seized as a result of the illegal stop and subsequent search of Cockrell and his vehicle must be suppressed.
Reversed and remanded.
HART, GLADWIN, and GLOVER, JJ., agree.
GRUBER and HENRY, JJ., dissent.
. The object was later identified as a landscaping tool.
. Section 5-73-120(a) provides that a person commits the offense of carrying a weapon if he possesses a handgun, knife, or club on or about his or her person, in a vehicle occupied by him, or otherwise readily available for use with a purpose to employ the handgun, knife, or club as a weapon against a person. Ark. Code Ann. § 5-73-120(a). In this section, “club" is defined as "any instrument that is specially designed, made, or adapted for the purpose of inflicting serious physical injury or death by striking_” Ark.Code Ann. § 5-73-120(b)(1).
. While Cockrell asserts that he did argue below that the bat and landscaping tool did not meet the definition of a club under Arkansas Code Annotated section 5-73-120, that argument was made at the conclusion of the suppression hearing, which was prior to the close of the State’s case-in-chief — a violation of Arkansas Rule of Criminal Procedure 33.1(b).
. The Fourth Amendment guarantees that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. 4. | [
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Frank Holt, Justice.
This appeal involves separate contracts for the construction by appellee of five dams for the appellants, Commissioners of Point Remove Creek Watershed Improvement District. By the terms of the written contracts, the appellee contractor was required to make whatever changes or modifications which might be requested by appellants during the construction of these dams. If any increased or lessened costs resulted and could not be agreed upon, the contractor had the right to reserve the claim and seek an adjustment later. After the completion of the projects and being unable to resolve their differences as to certain changes during construction, appellee contractor brought the suit against the appellants to recover certain claims allegedly due which resulted from modifications, changed conditions, an overrun, an underrun and a liquidated damage assessment. The quality of appellee’s construction is not disputed. The jury returned verdicts in favor of appellee on all five contracts. Appellants assert four points for reversal. They first argue that the court erred in denying their motion for a directed verdict on four of the five contracts in which appellee released all claims without also stating the dollar amount as to its excepted claims. Further, if that was not error then the court erred in not granting a directed verdict because of insubstantial evidence to support the verdicts. We discuss these contentions together.
The five written contracts specified that upon completion of the work, appellee would be paid when it furnished a final release of all claims against appellants “other than claims in stated amounts as may be specifically excepted by the Contractor from the operation of the release.” When appellee signed the releases and was paid, it excepted as to certain specifically listed claims on all of the five releases. Only on one of the five releases did appellee state the amount claimed.
Appellants argue that since the appellee contractor signed a release when paid, it is limited by the written terms of the contract to a recovery of those specific exceptions reserved and the amounts stated in the releases. Appellants rely on cases from the U.S. Court of Claims: U.S. v. Wm. Cramp & Sons Ship and Engine Building Co., 206 U.S. 118, 27 S. Ct. 676 (1907); J. G. Watts Construction Co. v. U.S., 161 Ct. Cl. 801 (1963); Shepherd v. U.S., 113 Fed. Supp. 648 (1953); and Indland Empire Builders, Inc. v. U.S., 424 Fed. 2d 1370 (1970). Here appellants recognize that these cases are not decisive. However, it is asserted that the principle of law enunciated there is persuasive. It is argued that the tenor of these cases is that a contractor’s release limits any future recovery unless there is a specific item, together with the amount claimed, reserved in the release. Even soihere, when the appellee contractor executed the releases, ?it excepted or listed certain claims on each of the five contracts. To say that appellee intended to release appellants from all claims would be inconsistent with the inclusion of the specifically excepted claims. As we now discuss, it appears the appellants had notice in writing of the dollar amount of each exception or claim (except two) before or at the time the releases were executed by the appellee. In our view, consequently, there was substantial compliance with the written contract requirement that the stated amounts were to be indicated in writing along with the enumerated exceptions or claims.
In testing the sufficiency of the evidence on a motion for a directed verdict, the testimony and all reasonable inferences are viewed in the light most favorable to the party against whom the verdict is sought. Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W. 2d 307 (1969). As to the substantiality of the evidence, we will not disturb the jury’s conclusion on appeal unless we can say there is no reasonable probability in favor of appellee’s version, and then only after giving legitimate effect to the presumption in favor of the jury findings. Beard v. Coggins, 249 Ark. 518, 459 S.W. 2d 791 (1970); Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W. 2d 822 (1968); and Lumbermens Mutual Ins. Co. v. Cooper, 245 Ark. 81, 431 S.W. 2d 256 (1968). Further, in testing the sufficiency of the evidence as being substantial on appellate review, we need only consider the testimony of the appellee and that part of the evidence which is most favorable to the appellee. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689 (1935).
Appellants primarily attack what is characterized as the “speculative” nature of the appellee’s supporting testimony with respect to additional sums due it as a result of modifications, etc., by appellants. However, the record shows that Watts, president of the appellee construction company, provided the jury with the necessary details (except two) con cerning contract rates, applicable schedules, deletions and relevant facts in support of appellee’s claim for equitable adjustment or additional payments.
On Site 12, Contract WF-13, as to modification 3 (sloping of right abutment), Watts provided in writing by exhibit 5, before he signed the general release, an itemized cost schedule, deletions and the amount paid under the contract, showing a claimed adjustment due appellee of $18,448.72, which the jury awarded, for additional excavation. As to modifications 8 and 11, Watts testified that the necessity for more fill dirt entailed transportation of dirt from a further and more inaccessible site at a cost of $1.06 per cubic yard. Under the contract appellee was paid only $.30 per cubic yard, leaving an adjustment of $14,700 for the balance due. However, appellee does not document any writing which reserves this stated amount or claimed adjustment.
On Site 18-Contract WF-20, exceptions were made as to modifications 3 and 6. Watts testified that a change in the excavation process and the installation of asbestos pipe delayed operation for which he claimed a balance due of $23,188.16 as was detailed in a four page letter (exhibit 1) predating the release, based on a fixed cost per day operating formula. The jury reduced the claim to $12,500.
On Site 9, Contract WF-11, as to modification 15, Watts furnished in writing, by exhibits 13 and 13A, a schedule of increased costs of $7,096.32. By these exhibits and his testimony, there was an increase in the emergency spillway excavation over the 25% allowable by the contract. There was a .detailed schedule of increased costs because of the modifications. Watts testified that after deletions and a reduction of $2,611.84, the change here ran 9,856 cubic yards over the 25% allowable at a cost of $1.21 per cubic yard, while under the contract he was paid at a rate of $.49 per cubic yard, leaving a balance of $4,484.48 due, which the jury awarded. As to the $3,300 (22 days delay at $150 per day in completion) for liquidated damages assessed and withheld by appellants, it appears Watts protested this exact deduction when he stated in the final release that sufficient time was not allowed by appellants in the sequence of construction. He testified that the delay resulted frmm appellants’ modifications. As to modification 5, Watts testified as to extra expense in obtaining necessary sandstone from an outside source and transportation to the site. He claimed an adjustment of $5,632, which was awarded by the jury. However, it appears there was no exhibit or anything in writing presented to appellants as to the dollar amount claimed either before or at the time the appellee signed the release.
As to Site 5-Contract EF-2, Watts testified and provided a detailed cost analysis schedule for additional expenses occuring when excavation encountered large rocks instead of dirt. By exhibit 17, a letter attached to the release, appellee claimed the amount of $11,045 which the jury awarded for this change of the contract. Appellants agree that this exception and stated amount substantially conforms to the requirement of the contract. As to Site 17-Contract WF-23, modification 3, Watts .testified that there was a deletion in the rock excavation of the emergency spillway. Although this reduced the contract price, appellee encountered increased costs in the deletion and rental fees for equipment not used. It appears this was supported by a three page written cost computation schedule submitted to appellants in which appellee claimed an adjustment of $5,323 which the jury awarded.
We hold the court did not err in refusing to direct a verdict since there is ample substantial evidence to support the jury’s verdicts other than two exceptions indicated: i.e., the claims of $14,700 and $5,632. We recognize that appellee asserts that as to the dollar amounts claimed, a “declaration was made in writing before the releases were executed.” However, it does not appear there is anything in writing reserving the dollar amounts of these two claims. Consequently, these two claims are not in substantial compliance with the terms of the contract.
Neither do we agree with appellee that appellants’ acceptance of appellee’s final releases constituted a waiver of the requirement that the dollar amount be stated along with the exception. It was appellee who signed a final release. The contract required that any additional claims, which could not be resolved, should be reserved by listing the claim and stating the dollar amount in the release.
Appellants next contend that the lower court erred in refusing to give their requested instruction which, in effect, told the jury that if appellee failed to set out the stated amounts in the release forms, then the release “would bar” recovery. This instruction was properly refused because it does not adequately state the material issues of the case and is clearly of a binding nature. Miller v. Ballentine, 242 Ark. 34, 411 S.W. 2d 655 (1967).
Appellants attack the 10% interest awarded from the date of judgment. It is pointed out that at the time the contracts were entered into and completed the statutory rate of interest on judgments was only 6%. However, this statute, Ark. Stat. Ann. § 29-124 (Supp. 1975), was revised before trial allowing 10% interest on a judgment. Therefore, we find no error in applying the 10% rate of interest per annum.
Appellants also attack the prejudgment interest award of 6% from the date of contract completion. They contend that the claims here were unliquidated and, therefore, unascertainable without a trial. Hence, they argue, interest can only be awarded from the date of the judgment. We agree with appellee’s response that the claims here were capable of ascertainment with a reasonable degree of certainty and that the interest was properly allowed from the date of contract completion in order to adequately compensate appellee for the monies wrongfully detained. See Tech-Neeks, Inc. v. Francis, 241 Ark. 390, 407 S.W. 2d 938 (1966); Kincade v. C. & L. Rural Elec. Coop. Corp., 227 Ark. 321, 299 S.W. 2d 67 (1957); and Loomis v. Loomis, 221 Ark. 743, 255 S.W. 2d 671 (1953).
As indicated, there was not substantial compliance with the written terms of the contract with respect to the claims of $14,700 and $5,632. To that extent the judgment should be modified.
Affirmed as modified.
We agree: Harris, C.J., and George Rose Smith and Roy, JJ. | [
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Frank Holt, Justice.
A jury convicted appellant of the offense of false pretense (Ark. Stat. Ann. § 41-1901 [Repl. 1964] ) and assessed her punishment at one year’s imprisonment in the Arkansas Department of Correction. Appellant first contends, through court appointed counsel, that she should have been discharged for failure to bring her to trial within three terms of court following her arrest. Appellant was arrested on May 19, 1975, and subsequently charged by information. From the date of arrest until trial, she was at liberty on bail. The terms of the Sebastian County Circuit Court, Fort Smith District, are the first Monday in February, June and October. Ark. Stat. Ann. § 22-310 (Supp. 1975). The third full term of court following appellant’s arrest would be the February 1976 term which ended on June 7, 1976. Appellant was tried on June 3 and 4, 1976. This is within the third full term of court whether measured from the date of arrest or the subsequent information and, therefore, complies with Ark. Stat. Ann. § 43-1709 (Repl. 1964). State v. Knight, 259 Ark. 107, 533 S.W. 2d 488 (1976). See also Ark. Crim. Proc., Rule 28 (1976) (Act 280 of 1975). That rule changed Ark. Stat. Ann. § 43-1709 (Repl. 1964) by providing the time for trial commences to run from the date of arrest and not from the filing of the information.
Appellant next contends that “the State failed to make a submissible case for the jury in that the only false representation alleged and proved — that the victim ‘would be exclusive in this area’ — related solely to the future and was not a misrepresentation of an existing fact or past event.” It is well settled that to constitute false pretense within the meaning of the statute (§ 41-1901), the misrepresentation must be of some past or existing fact and not a promise of something to occur in the future. Ross v. State, 244 Ark. 103, 424 S.W. 2d 168 (1968); Conner v. State, 137 Ark. 123, 206 S.W. 747 (1918); and McKenzie v. The State, 11 Ark. 594 (1849).
Here the information charged that the prosecuting witness was induced to pay money in excess of $35 ($11,985) to the appellant by her false representation of an existing fact. The pertinent part of the bill of particulars asserts that the appellant created “a false impression as to the area and exclusivity of the contract. ...” Appellant was a sales representative of a nonresident corporation, MRM Enterprises, Inc. The thrust of the state’s argument is that sufficient proof was adduced that appellant falsely representated an existing fact by selling the prosecuting witness, Parker, an “exclusive” distributorship of Kodak products for a certain area. She mailed Parker’s application along with two others to her employer which accepted all of them as distributors. Parker admitted that appellant told him, in taking his application and check, “that I would be exclusive in this area of Fort Smith,” and he knew that the proposed purchase agreement was “valid only upon a signature of an officer of MRM Enterprises, Inc.” He was also aware that he was “applying for a distributorship which might or might not be accepted.”
In Conner v. State, supra, we said: “A false representation as an inducement to pay money that something thereafter was to be or was not to be done is not a false pretense. ” Here, when all of the evidence is viewed most favorably to the state, we must hold that no submissible issue was presented to the jury as to false representation of a past or existing fact.
Reversed and dismissed.
We agree: Harris, C.J., and Fogleman and Roy, JJ.
Hickman, J., dissents.
This section is now superseded by Ark. Crim. Code § 41-2203 (1976). | [
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PER CURIAM.
I,In 1998, appellant James Girley was found guilty of rape by a jury in the Pulaski County Circuit Court and sentenced to 300 months’ imprisonment. The Arkansas Court of Appeals affirmed as modified. Girley v. State, CR-98-1108, 1999 WL 172171 (Ark.App.Mar. 24, 1999) (unpublished) (original docket no. CACR 98-1108).
In 2013, appellant filed in the trial court a pro se petition for writ of habeas corpus pursuant to Act 1780 of 2001, codified at Arkansas Code Annotated sections 16- 112-201 to-208 (Repl.2006). Act 1780, as amended by Act 2250 of 2005, provides that a writ of habeas corpus can issue based on new scientific evidence proving a person actually innocent of the offense for which he was convicted. Ark.Code Ann. § 16 — 112—103(a)(1) (Repl.2006); Ark.Code Ann. § 16-112-201; Strong v. State, 2010 Ark. 181, 372 S.W 3d 758 (per curiam).
The generally applicable standard of review of an order denying postconviction relief dictates that this court does not reverse unless the circuit court’s findings are clearly erroneous, although issues concerning statutory interpretation are reviewed de novo. Cooper v. State, 2013 Ark. 180, 2013 WL 1776437 (per curiam) (citing Echols v. State, 2010 Ark. 417, 373 S.W.3d 892). An abuse-of-discretion standard applies when the statute allows the trial court to exercise discretion. Cooper, 2013 Ark. 180, 2013 WL 1776437;. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Cooper, 2013 Ark. 180, 2013 WL 1776437; Pitts v. State, 2011 Ark. 322, 2011 WL 3930396 (per curiam). An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. Guy v. State, 2011 Ark. 305, 2011 WL 3136699 (per curiam).
In his petition under the statute, appellant contended that there was scientific evidence in the form of DNA testing not available at the time of his trial that was more probative than earlier DNA testing methods and that could establish his actual innocence. He identified the testing as “short tandem repeat techniques.” He asserted that the State is in possession of DNA evidence from the sexual-assault kit from the medical examination of the rape victim that supports his claim of innocence and should be compared to his DNA. He further claimed that the request for the DNA testing was timely under the statute because (1) he was incompetent to make the request earlier, (2) perjured scientific evidence was introduced at his trial, and (3) the sexual-assault kit was not introduced into evidence at trial and is thus “newly discovered evidence.”
RThe trial court held that the petition was untimely, citing Hamm v. Office of Child Support Enforcement, 336 Ark. 391, 985 S.W.2d 742 (1999), a case in which there was testimony pertaining to the use of short-tandem-repeat technology in a paternity dispute at about the time of appellant’s trial. The trial court concluded that the Hamm case indicated that such technology had been in use since at least 1999 and was not new technology. The trial court also held that the petition failed to state factual support for the claim that his incompetence was the cause of the delay in bringing the petition.
On appeal, appellant argues that the evidence from the sexual-assault kit was suppressed by the prosecution in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the suppression of the evidence excuses the delay in his raising the claim for DNA testing using the short-tandem-repeat technology. He also repeats the arguments raised in the petition as further grounds for reversal of the trial court’s order denying the relief sought. We find no reversible error.
Before a circuit court can order testing under the statute, there are a number of predicate requirements that must be met. King v. State, 2013 Ark. 133, 2013 WL 1279079 (per curiam); see Ark.Code Ann. § 16-112-202. One of these predicate requirements is that the petition must be filed in a timely fashion. Ark.Code Ann. § 16-112-202(10). In 2005, the statute was amended to include a rebuttable presumption against timeliness for any petition filed more than thirty-six months after the entry of the judgment of conviction. Id. This presumption against timeliness may be rebutted by showing (1) that the petitioner was or is incompetent, and the incompetence substantially contributed to the delay; (2) that the evidence to be tested is newly discovered; (3) |4that the motion is not based solely upon the petitioner’s own assertion of innocence, and a denial of the motion would result in a manifest injustice; (4) that a new method of technology exists that is substantially more probative than was the testing available at the time of the conviction; or (5) for other good cause. Ark.Code Ann. § 16 — 112—202(10) (B )(i)(v).
In the instant case, appellant filed his pleadings in the trial court approximately fifteen years after the judgment-and-commitment order had been entered of record and approximately seven years after section 16-112-202 had been amended to include the 36-month limitation. He failed to state any basis to rebut the presumption against timeliness.
First, the claim of a Brady violation is raised for the first time in this appeal. For that reason, we will not consider it. If the issue was not raised in the petition, the trial court did not have the opportunity to rule on the issue, and this court will not consider issues on which there was no ruling below or arguments in support of a claim that are advanced for the first time on appeal. See Williams v. State, 2013 Ark. 375, 2013 WL 5524467 (per curiam); Green v. State, 2013 Ark. 455, 2013 WL 5968933 (per curiam).
With respect to the claims that were raised below pertaining to the timeliness of the petition, appellant offered no factual support in his petition for the assertion that his incompetence caused him to delay filing his petition seeking short-tandem-repeat DNA testing. He also offered no proof that the technology was not available at the time of his trial or that there was any' other good cause for his failure to raise his claim under the statute within the thirty-six-month window allowed by the statute. Because appellant failed to rebut the presumption against timeliness in Arkansas Code Annotated section 16-112-202(10), the trial |scourt did not err in declining to order the DNA testing requested.
Affirmed.
. The judgment, entered erroneously, • reflected a sentence of 400 months’ imprisonment. The court of appeals modified the sentence to the correct sentence of 300 months’ imprisonment and directed the trial court to enter an order reflecting the modification. | [
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RITA W. GRUBER, Judge.
| Appellant Christopher David Ebel appeals from a conviction for driving while intoxicated, second offense. Appellant’s sole point on appeal is that the trial court erred in denying his motion in limine to exclude the results of a breathalyzer test because the arresting officer did not allow appellant to have an additional, independent blood test administered. We affirm appellant’s conviction.
Arkansas Code Annotated section 5-65-204(e) (Repl.2005) provides as follows:
(e)(1) The person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his or her own choice administer a complete chemical test in addition to any test administered at the direction of a law enforcement officer.
(2) The law enforcement officer shall advise the person in writing of the right provided in subdivision (e)(1) of this section and that if the person chooses to have an additional chemical test and the person is found not guilty, the arresting law enforcement agency shall reimburse the person for the cost of the additional chemical test.
|¾(3) The refusal or failure of a law enforcement officer to advise a person of the right provided in subdivision (e)(1) of this section and to permit and assist the person to obtain a chemical test under subdivision (e)(1) of this section precludes the admission of evidence relating to a chemical test taken at the direction of a law enforcement officer.
When a defendant moves to exclude a test pursuant to section 5-65-204(e)(2), the State bears the burden of proving by a preponderance of the evidence that the defendant was advised of his right to have an additional test performed and that he was assisted in obtaining a test. Kay v. State, 46 Ark.App. 82, 85, 877 S.W.2d 957, 959 (1994). The initial test result may be admitted into evidence if there was substantial compliance with the statute. Reynolds v. State, 96 Ark.App. 360, 361, 241 S.W.3d 765, 766 (2006). Furthermore, the officer must provide only such assistance in obtaining an additional test as is reasonable under the circumstances presented. Kay, 46 Ark.App. at 85, 877 S.W.2d at 959. Whether the assistance provided was reasonable under the circumstances is ordinarily a fact question for the trial court to decide. Id. It is for the trial court to weigh the evidence and resolve the credibility of the witnesses. Id. We will not reverse the trial court’s ruling on the admission of evidence absent an abuse of discretion and a showing of prejudice. Graham v. State, 2012 Ark.App. 90, at 7, 389 S.W.3d 33, 37; see also Mhoon v. State, 369 Ark. 134, 136, 251 S.W.3d 244, 246-47 (2007).
We turn to the facts relevant to appellant’s motion in limine. Appellant was arrested at approximately 1:30 a.m. on December 2, 2011, when Officer Joe Pruitt of the Benton County Sheriffs Office saw appellant’s SUV cross the center line four times and decided to pull him over. Officer Pruitt testified that appellant’s eyes were bloodshot and watery, that |3he had a bottle of Listerine in his hand and smelled strongly of it, that he fell against the car when he got out, and that he admitted to having drunk “three or four beers.” Officer Pruitt also testified that appellant walked slowly and swayed. Finally, Officer Pruitt performed two field-sobriety tests and then took appellant to the county sheriffs office, where a breathalyzer test was administered showing that appellant’s blood-alcohol content was .089 percent. The test was administered at 2:09 a.m. Appellant requested a second test, stating that he had the means to pay for the test, and Officer Pruitt transported him to Mercy Hospital in Rogers for a test to be administered for $45. Appellant gave the attendant his debit card, which was declined twice. He asked Officer Pruitt if he could call his parents in Bella Vista to bring money to the hospital; Officer Pruitt denied his request.
Appellant filed a motion in limine to exclude the results of the breathalyzer test pursuant to Ark.Code Ann. § 5-65-204(e) because Officer Pruitt refused to allow him to call his parents to bring money for the second test. After a hearing, the court denied the motion, finding that Officer Pruitt had provided appellant with assistance in obtaining the second test that was reasonable under the circumstances by transporting him to the hospital and finding that the test was not given was because appellant was unable to pay for it.
The statute required Officer Pruitt to advise appellant of his right to obtain a second test — and appellant does not dispute that this occurred — and “to permit and assist” him in obtaining it. The officer need provide only such assistance as is reasonable under the circumstances. Kay, 46 Ark.App. at 85, 877 S.W.2d at 959. In this case, appellant requested the second test and told Officer Pruitt that he had the means to pay for the test. Officer Pruitt |4took appellant to Mercy Hospital in Rogers, where appellant’s debit card was declined. Appellant asked the hospital attendant to run the debit card again, which the attendant did, and it was again declined. It was after 2:00 in the morning, appellant’s parents lived in another town, and appellant did not mention needing additional funds for the test until his debit card was declined. Officer Pruitt had no duty to allow appellant to call his parents to bring money. Because we cannot say that the trial court clearly erred in finding that Officer Pruitt’s actions constituted reasonable assistance under the circumstances of this case and in determining that Officer Pruitt substantially complied with the statute, we hold that the trial court did not abuse its discretion in denying appellant’s motion in limine.
Affirmed.
WALMSLEY and HARRISON, JJ., agree. | [
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OPINION OP THE COURT. Clark brought an action on the case against John Campbell, in the circuit court, and obtained a judgment, to reverse which, Campbell has appealed to this court.
The first question material to be decided relates to the continuance of the cause. At the September term the parties appeared, and, by consent, the defendant was allowed to plead on or before the first of December. On the 28th of November, the defendant filed his plea, and on the 27th of February the plaintiff filed a similiter, making up the issue. At the March term the cause was continued on the motion of the defendant; and at the July term the defendant moved for a continuance, on the ground that the plaintiff had not served him with a copy of his replication fifteen days before the term of the court, which motion was overruled. The defendant, in our judgment, was not entitled to a continuance. By referring to the Digest of Geyer (page 249), it will by seen that it is only where the plaintiff continues his cause at the first term without filing his replication, that he is bound to file it and serve the defendant or his attorney with a copy fifteen days before court. In this case the plaintiff filed his replication before the second term, and at that term the cause was continued. We do not think it was necessary, under these circumstances, to serve the defendant with a copy of the replication, if indeed a similiter may come under that denomination. It was on file in the court, and the defendant was bound to take notice of it. The motion for a continuance was, therefore, properly overruled.
The only question which relates to the merits is, whether it was necessary to aver and prove a demand. The action was brought upon a note in the following words: “On or before the first of June, 1827, I promise to pay Benjamin Clark, or order, $200, which may be discharged in cotton at the market price in the fall of 1S2G.” It has been heretofore decided by this court, that in cases where the time is fixed for the payment of property, by the contract between the parties, no demand is necessary to entitle the plaintiff to maintain his action. This doctrine is clearly settled by the adjudication of the court of appeals of Kentucky, and we seo no reason to depart from our former opinion, sustained as it is by authority so respectable. McKee v. Beall, 3 Litt. (Ky.) 191. It is only in cases where property is payable on demand, or where no time is fixed for its payment, that a demand must be averred and proved. But the note in question is not a note for the payment of property. It is a note for the payment of money at a certain day, with a provision that it may be discharged in property before the day on which the money became due. It is an election given to the obligor to pay it in property by a specified time, but he is not bound to pay it in property, and if lie fails to avail himself of that stipulation, he is bound to pay the money according to the terms of the contract In such a case no demand need he averred or proved; the plaintiff has no right to make the demand. It rests with the defendant whether he will avail himself of the stipulation in his favor, giving him the privilege of paying the debt in property. It is equally well settled, that the defendant’s place of residence is the place for the payment of onerous property, unless a different place is specified, in the contract.
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John A. Fogleman, Justice,
dissenting on denial of petition for rehearing. I would grant the rehearing to the extent of treating the appeal as a petition for certiorari and considering the issue on its merits.
I am authorized to state that Mr. Justice Byrd joins me in this. | [
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John A. Fogleman, Justice.
The judgment sentencing appellant to death by electrocution was affirmed by us in Neal v. State, 259 Ark. 27, 531 S.W. 2d 17. Just as was the case in Collins v. State, 259 Ark. 8, 531 S.W. 2d 13, 261 Ark. (7 Mar. 77), 548 S.W. 2d 106, the Supreme Court of the United States vacated this judgment and remanded this case to us for reconsideration in the light of Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Woodson and Waxton v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 195, 548 S.W. 2d 106, and for additional reasons hereinafter stated, we adhere to the views expressed in Neal v. State, supra, 259 Ark. 27, and again affirm the judgment of the trial court.
Most of the contentions made and arguments advanced by the appellant on this reconsideration are identical to those made and advanced in Collins v. State, supra, 261 Ark. 195. Since these points were comprehensively treated in the opinion on reconsideration in that case, we will not again treat them here.
Appellant has conceded that the constitutional standards for the trial stage under Ark. Stat. Ann. § 41-4701 et seq (Supp. 1973), i.e., Act 438 of 1973, have been minimally, if not abundantly, met. In any event, we see no reason for any further discussion of the trial stage of capital felony murder prosecutions. It is the matter of appellate review on which appellant addresses us. Appellant does argue that there can be no meaningful appellate review of a death sentence in the absence of a mechanism, such as that provided by the Georgia statutes, through which the Georgia Supreme Court is provided in every case in which the death penalty is imposed with a report from the trial judge in the form of a questionnaire and an accumulation of the records of all capital cases in which sentence has been imposed after January 1, 1970, or such earlier date as the Georgia Supreme Court may deem appropriate. But appellant concedes that it was pointed out in Proffitt that the Florida statute has no such provisions. We find nothing in the language of any of the opinions in Proffitt, or in Gregg for that matter, to indicate that this mechanism is an essential safeguard against the arbitrary, capricious, wanton or freakish imposition of the death penalty. In Proffitt, the Stewart-Powell-Stevens plurality (which appellant mistakenly takes to be a majority) recognized the absence of this kind of mechanism, but [citing State v. Dixon, 283 S. 2d 1 (Fla., 1973), cert. den. 416 U.S. 943, 94 S. Ct. 1950, 40 L. Ed. 2d 295, also cited by us in Collins v. Slate, supra, 259 Ark. 8], found meaningful appellate review in the Florida Supreme Court’s undertaking to review a case in which a defendant is sentenced to die in the light of other decisions to determine whether the punishment was too great and taking its function to be to “guarantee that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case.” Even the Stewart plurality found that the Florida capital-sentencing procedures seek to assure that the death penalty will not be imposed in an arbitrary or capricious manner, and, the appellate review system, to minimize any risk to the contrary. It pointed out that the decisions of the sentencing authority were reviewed, on appeal, to ensure that they are consistent with other sentences imposed in similar circumstances.
The exemplification of the statement by the Stewart plurality that the Florida Supreme Court, had, in effect, adopted the type of proportionality review mandated by the Georgia statute was found in Alford v. State, 307 S. 2d 433 (Fla., 1975), cert. den. 428 U.S. 912, 96 S. Ct. 3227, 49 L. Ed. 2d 1221 (1976) and Alvord v. State, 322 S. 2d 533 (Fla., 1975), cert. den. 428 U.S. 923, 96 S. Ct. 3234, 49 L. Ed. 2d 1226 (1976). A careful reading of these cases shows a total absence of the mechanism which appellant deems necessary to meaningful appellate review. In those cases, the only comparisons made were related to circumstances prevailing in death penalty cases previously reviewed by the Florida court. Any thought that the United States Supreme Court, or even the Stewart plurality, would say that the Georgia mechanism is an essential constitutional safeguard is quickly dispelled by examination of the examples cited in the plurality opinion. In both Alford and Alvord the Florida Supreme Court merely compared the factual background of the case being reviewed with facts disclosed in their opinions in recent cases in which the death penalty had been imposed. The Stewart plurality also found that the Texas system of prompt judicial review in a court with statewide jurisdiction provided a means to promote the evenhanded, rational and consistent imposition of death sentences under law and served to insure that sentences of death would not be wantonly or freakishly imposed. Jurek v. Texas, supra. Yet, the Texas system is not in any wise comparable to the Georgia system insofar as the mechanics emphasized by appellant are concerned. We find no merit in appellant’s argument on this point.
The next argument is that no meaningful appellate review is possible because the jury’s findings on aggravating and mitigating circumstances are mere “checkmark” selections of conclusions stated in statutory language without any information as to the manner in which the decision was reached. We find no great difficulty in this approach to the jury’s findings. In our original opinion, we rejected the argument that the statutorily described aggravating and mitigating circumstances were unconstitutionally vague. Neal v. State, supra, 259 Ark. 27. We are unable to find anything in the Woodson-Roberts-Gregg-Proffitt-Jurek quintuplet offspring of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, to cause us to change our views in this respect. To the contrary, we find support for our holding, after comparing the enumerated circumstances in our statute with those of the Georgia statute. While recognizing that guiding standards for the sentencing authority could fail for vagueness, the Stewart plurality in Gregg said: ^
*** While such standards are by necessity somewhat general, they do provide guidance to the sentencing authority and thereby reduce the likelihood that it will impose a sentence that fairly can be called capricious or arbitrary. Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.
In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentending authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.
*** No longer can a Georgia jury do as Furman’s jury did: reach a finding of the defendant’s guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury’s attention is directed to the specific circumstances of the crime: Was it committed in the course of another capital felony? Was it committed for money? Was it committed upon a peace officer or judicial officer? Was it committed in a particularly heinous way or in a manner that endangered.the lives of many persons? In addition, the jury’s attention is focused on the characteristics .of the person who committed the crime: Does he have a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capital punishment (e.g., his youth, the extent of his cooperation with the police, his emotional state at the time of the crime). As a result, while some jury discretion still exists, “the discretion to be exercised is controlled by clear and objective standards so as to produce nqndiscriminatory application.” Coley v. State, 231 Ga. 829, 834, 204 S.E. 2d 612, 615.
That plurality found that the Georgia standards, as construed by the Georgia Supreme Court, were sufficiently precise that the Georgia capital sentencing system would not violate the Eighth and Fourteenth Amendments to the United States Constitution. The. White-Burger-Rehnquist concurrence seemed to have no particular problem with the assertion that the Georgia standards were too vague. It also appears to us that the standards set out in our statute are as definite as the Florida standards which seem to have been found adequate in Proffitt to meet Furman requirements. In Proffitt, the Stewart plurality said:
While these questions and decisions may be hard, they require no more line-drawing than is commonly required of a fact finder in a lawsuit. For example, juries have traditionally evaluated the validity of defenses such as insanity or reduced capacity, both of which involve the same considerations as some of the above-mentioned mitigating circumstances. While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.
The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. As a result, the trial court’s sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.
In Jfurek, both the Stewart plurality and the White concurrence upheld the Texas system which is without any statutory enumeration of aggravating circumstances or statutory mention of mitigating circumstances.
We have had little occasion to construe particular standards, because of the generality of the attack on them, but we still feel that the language is sufficiently specific. In this case, the jury found only one statutory aggravating circumstance, which appears to us to be very specifically defined. It appears to us that it will at least be as easy to review the record to see if there is sufficient evidentiary support for a jury’s findings on these particularized circumstances as it is when a jury’s general finding of guilt is questioned.
We adhere to the views expressed in our original opinion. There was certainly substantial evidence to support the one aggravating circumstance found to exist, i.e., that the murder was committed for pecuniary gain, being done in the perpetration of a robbery, out of which Neal said he netted $100. There was also sufficient evidentiary support, as we previously pointed out, for the jury’s failure to find, as a mitigating circumstance, that appellant had no capacity for understanding the wrongfulness of his conduct or that he was mentally impaired or emotionally disturbed at the time of the offense.
We did not specifically mention, on the first appeal, the argument that there was no substantial evidence on which the jury could find that the youth of the defendant at the time of the commission of the capital felony was non-existent as a mitigating circumstance, but some mention is again made of his age in the briefs on this reconsideration. The evidence on which appellant relied was not his chronological age. Instead, he relied on IQ tests made when he was six, nine and fourteen years of age and the opinion of a psychologist, who made the tests, that his maximum educational attainment would be at the sixth grade level, and that, at age fourteen, he was reading at the third grade level. It must be remembered that more than five years had passed since this last evaluation was made, and that the jury not only observed Neal, but heard a statement made by him in which he sought to shift the blame for the killing to his companion. The jury also heard testimony about the plotting of the crime and the preliminary steps to divert police attention at the time of the robbery from the place to be robbed.
When the ordinary meaning of the word “youth” is considered, it is equated with juvenility and adolescence; it seems to reach its outer limits at maturity. See Webster’s New International Dictionary, Second Edition; Webster’s Third New International Dictionary; Rodale’s, The Synonym Finder (Special Deluxe Edition); Roget’s Pocket Thesaurus. It appears that appellant’s date of birth was given as April 23, 1955 in his statement to the police officers. When he was fourteen, he had given a slightly different date. His accomplice testified that when the two became acquainted, Neal said that he was twenty or twenty-one. The offense was committed on December 1, 1974, when appellant was at least nineteen years and seven months of age. At the time of the offense, Neal was old enough to vote in all elections. Amendment 23, Constitution of the United States. He could make a valid will. Ark. Stat. Ann. § 60-401 (Repl. 1971). He could not rescind a contract without making restitution. Ark. Stat. Ann. § 68-1601 (Repl. 1957); Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W. 2d 532. Although there are purposes for which Neal would not be considered to have reached full majority at the time of his trial, those pointed out above are sufficient to indicate that a jury could be justified in finding that Neal had passed the state of adolescence and juvenility. We would not be justified in saying, as appellant had urged, that the jury arbitrarily ignored uncontradicted evidence on this point.
There was also a sound basis for finding that appellant was not suffering from a mental disease or defect which impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. A medical doctor, who was at the time of trial a student in advanced psychiatry and who had evaluated Neal in 1971 at the Juvenile Reception and Classification Center on the Benton State Hospital Grounds was the witness who gave the diagnosis of nonpsychotic organic brain syndrome with behavioral reaction and associated mental retardation. He arrived at this diagnosis by use of an electroencephalogram which he read as moderately abnormal. Although Neal had been given an IQ examination at the time, the results were not disclosed. This testimony was not substantiated by that of the examining neuropsychiatrist at the Arkansas State Hospital, to which Neal was committed for examination after the crime. He administered an electroencephalogram and found it to be within normal limits. We do not consider the evaluations by a psychologist when Neal was fourteen years old and younger to have any great weight. The last one did show a learning capacity at a sixth grade level. There was testimony from which the jury was justified in believing that the robbery was carefully planned and timed, after the robbers had watched the station at intervals over the period of a week from a service station directly across the street. We could not say that there was error in the finding on this mitigating circumstance.
As in Collins v. State, supra, 261 Ark. 195, 548 S.W. 2d 106 (1977), we have some difficulty in finding a basis for comparison of this case with others in which the death penalty has been imposed, because there are no recent cases. As in Collins, we can say that we are not aware of any case in which this court has reduced a death penalty where there wrre no more mitigating circumstances than there are here. This robbery was calmly and deliberately planned and executed by Neal and his companion. The appellant and his accomplice first drove around breaking windows in several stores in order to set off burglar alarms, so the police would be diverted to answer these alarms in another area. The jury would have been justified in the belief that Neal was the executioner and that Neal fired the first, last and most of the other shots into the body of the sole attendant at the service station where the robbery was carried out. The victim was first shot when he was on the floor in a bay in the service station after he had been bound at the wrists and ankles by Neal. Seven shots were fired into his body and each of the wounds was potentially lethal. A witness testified that Neal had told him that he shot the man seven times. Both .22 caliber and .38 caliber bullets were recovered from the victim’s body. There was evidence tending to show that Neal had possession of both .22 and .38 caliber weapons during the robbery and that he had obtained the .38 caliber weapon for use in the robbery. The accomplice testified that it was Neal who went into the station and finally dispatched the helpless attendant, when the two robbers drove back to check on the situation at the service, station and saw the attendant using the telephone.
We certainly cannot say that the sentence resulted from passion or prejudice, that the jury’s findings as to aggravating and mitigating circumstances and their weight were without sufficient evidentiary support; that there was any error in the sentencing procedure; or that the imposition of the death penalty was arbitrary, capricious or wanton. The evidence supported a finding of guilt of the degree of homicide charged. This murder was as vicious and brutal as that which took place in Collins. Neal’s attorney, in arguing the case to the jury, sought first to convince the jury that the accomplice was the actual killer, and then, that Neal should not suffer the death penalty. Still, he could only describe the killing as a brutal, merciless murder. The evidence showed a deliberate intention to minimize the possibility of identification by elimination of the victim of the robbery. We would not be justified in classifying the imposition of the death penalty in this case as freakish. We would not be justified in reducing the degree of the crime or the punishment. We hold that the imposition of the death penalty in this case did not violate the Eighth and Fourteenth Amendments.
We reinstate the judgment, and it is affirmed.
George Rose Smith, Holt and Hickman, JJ., dissent only for the reasons stated in their dissents filed in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977).
For convenience, hereinafter called the Stewart plurality. | [
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Conley Byrd, Justice.
Cloud’s Grocery store at Casscoe, Arkansas was held up by three Negro men wielding a sawed-off shot gun and a .22 pistol. After raping the female clerk, the holdup men caused the woman, the store’s owner and seven of the customers, all of whom had been robbed, to lie on the floor with their faces down. While in that position, seven people were shot by a .22 pistol. The .22 pistol was reloaded and fired a second time into several of the victims. Harold Goacher described the holdup men as being two dark Negro men and a light colored one. It was Goacher’s testimony that the two dark Negro men took turns in firing the .22 pistol. Appellant Edward Charles Pickens, a/k/a Larry Coakley, an ex-convict from the State of Michigan, admits that he was present when the shooting occurred but insists that the light colored Negro man was the one who shot the victims in order to prevent the victims from identifying the holdup men. Some, but not all of the victims survived. The jury found appellant guilty of Capital Felony Murder of Wes Nobles, one of the Negro customers at the grocery store. After hearing additional testimony in a bifurcated trial the jury returned a verdict fixing appellant’s punishment at death by electrocution. For reversal, appellant raises the issues hereinafter discussed.
POINT I. We find no merit to appellant’s contention that it was error for the trial court to allow two Deputy Attorneys General to act as special prosecutors. This Court has long recognized that it is permissible for the prosecuting attorney to request the assistance of special counsel in the prosecution of a criminal case; Coon v. State, 109 Ark. 346, 160 S.W. 226 (1913). No abuse of the trial court’s discretion is shown in the case before us.
POINT II. The record shows that appellant moved to adopt the pretrial pleadings and motions filed on behalf of Sherwood Vincent Gooch. The trial court permitted appellant to adopt Gooch’s motion but in doing so specifically provided that the change of venue in appellant’s case would be to the Southern District of Prairie County rather than to the Northern District in Gooch’s case. Appellant did not thereafter object to the venue and cannot now contend that the trial was held in an improper place.
POINT III. After the trial but before the transcript of the testimony was prepared, the home of the official court reporter was destroyed by fire. Appellant at that time moved for a new trial on the basis that the tape recordings made by the court reporter during the course of the proceedings were destroyed and consequently, the court reporter could not necessarily make a full, complete, exact and accurate transcription of the record at trial. Appellant’s motion recognized, however, that the court reporter still had her shorthand notes. The trial court, in overruling appellant’s motion, made the following finding, to-wit:
“. . . That from the reporter’s shorthand record of the trial proceeding the court reporter has prepared a true and accurate transcription of the trial proceeding herein and certified same in the usual manner and a copy thereof has been filed with the Circuit Court Clerk at DeValls Bluff, Arkansas and also a copy of same has been delivered to the attorney for the defendant on September 7, 1976. That defendant’s attorney was advised that if he could show the Court within twelve days wherein any material mistake or objection was made and/or omitted, the transcript would be corrected ac cordingly. There has been no such mistake or omission presented to the Court.”
On the basis of the trial court’s finding, we must conclude that the motion for new trial was properly overruled. We note that in some instances there are some omissions of isolated words in the transcript, however, appellant does not contend that the transcript before the Court omits any matters of consequence.
POINT IV. Appellant contends that he was denied his Sixth Amendment right to counsel at two critical stages of the prosecution which also had the effect of vitiating his Fifth Amendment rights. These contentions have no merit. The totality of the evidence shows that appellant voluntarily waived his right to counsel and signed a confession after he was fully informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The record also shows that appellant voluntarily waived his right to counsel in the line-up identification conducted after his arrest by the Memphis, Tennessee Police.
For the first time on appeal appellant contends that the signing of the rights waiver by appellant did not appear in the response to the Bill of Particulars filed by the State. In making the suggestion, appellant does not intimate that he was in any manner prejudiced by the State’s alleged failure. Furthermore, the Bill of Particulars Item 1 (29) lists “Line-up rights form” as having been furnished to the attorney for appellant. See also Item 4(1) of the Bill of Particulars which refers to a waiver of rights form. Also we do not consider issues raised for the first time on appeal.
POINT V. Appellant contends that the evidence found in the stolen automobile that he and his confederates abandoned in Memphis shortly before their apprehension should have been suppressed because the police did not secure a search warrant. We do not understand the law to require a search warrant before the police can search an abandoned vehicle from which a defendant flees to prevent apprehension by the police. See J. Varon, Searches, Seizures and Immunities, Chapter III, § 3 at 183 (2d Ed. 1974).
Neither do we find any merit to appellant’s contention that the diamond wedding band taken from the rape victim during the holdup should be suppressed. See United States v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974). The record shows that the ring was removed from appellant’s little finger during a custodial search at the jail in Memphis after his arrest.
The .22 pistol was found by an alert citizen on the streets of Memphis near the point of appellant’s apprehension by the officers. Appellant is not in a position to claim an illegal search.
Appellant under this point also suggests that there was no direct link established between him and the gun found by the Memphis citizen. The record shows that Captain McDonald, a ballistics expert, identified the bullet found in Wes Nobles, the decedent, as having been fired from the recovered .22 pistol. Furthermore, appellant admits that he handled the .22 pistol that was fired into the robbery victims. Consequently, this contention has no merit.
POINT VI. Finally appellant contends that the imposition and carrying out of the sentence of death by electrocution for the crime of Capital Felony Murder under the law of Arkansas violates the Eighth or Fourteenth Amendment to the Constitution of the United States. We find no merit to the contentions made. See Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), Neal v. State, 261 Ark. 336, 548 S.W. 2d 135 (1977), Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977), Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976) and Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976).
In making its findings on aggravating and mitigating circumstances the jury made the following specific findings:
“The Defendant was, beyond a reasonable doubt, previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
The Defendant did, beyond a reasonable doubt, in the commission of the capital felony, knowingly create a great risk of death to one (1) or more persons in addition to the victim.
The capital felony was, beyond a reasonable doubt, committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
The capital felony was not committed by another person and the Defendant was not an accomplice or his participation relatively minor.”
There is substantial evidence to support the jury’s findings on each of the above facts and in the absence of any mitigating circumstances, we can find no basis in the record to hold that the sentence of death was wantonly or freakishly imposed against appellant. Like Neal v. State, supra, this is just another example of a robber who makes the cold-blooded calculation that by annihilating his victim he thereby eradicates an eyewitness to his crime. Society has every right to display an indignant and moral outrage at such offensive conduct and no court should hold that a jury cannot respond to such a grievous affront to humanity by invoking the death penalty in accordance with the laws of the State.
A search of the record shows no other objection made by appellant in the trial court that is worthy of comment.
Affirmed.
George Rose Smith, Holt and Hickman, JJ., concur in the result but adhere to the views expressed in Collins v. State, 261 Ark. 195 (1977). | [
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Elsijane T. Roy, Justice.
The parties to this action owned as tenants in common a parcel of land 30’ x 71.62’, and their respective businesses were located adjacent to the South end of this parcel. Appellants petitioned the court, ^pursuant to Ark. Stat. Ann. § 34-1801 (Supp. 1975), requesting partition of the small tract according to their respective interests or, in the alternative, sale of the land and distribution of the proceeds if it were found the land was not susceptible to division in kind without prejudice to either party.
The court, after hearing testimony, accompanying counsel to the site and viewing the area, entered a judgment of partition and appointed three commissioners pursuant to Ark. Stat. Ann. § 34-1815 (Repl. 1962) to make a report to the court. The commissioners filed a complete and detailed report pursuant to statutory requirements finding the property to be divisible in kind “without prejudice or damage to the rights and claims of either of the litigants” and allotting the South half of the parcel to appellees and the North half to appellants.
Thereafter appellants filed objections alleging great prejudice would result to them since their portion was not contiguous to adjacent lands they owned and further because a prescriptive roadway ran across their half. The court overruled their objections and ordered execution of the deeds of partition. It is from this order that appeal is taken.
We note the court, accompanied by counsel, personally viewed and examined the land in question and the manner in which the building of each party was situated with respect to the adjacent property they owned. The court then appointed three commissioners, all approved by the litigants, who concluded that the property was capable of division without prejudice or damage to either interest. Although not bound by these findings, the court accepted them after concluding that the commissioners had made an equitable division.
The court in overruling appellants’ objections to the partition stated:
* * * The Court finds that there are no new matters contained in these pleadings. The existence of the roadway was known to both parties at the time of trial and was known to the Commissioners.
* * #
* * * If plaintiffs had pleaded and proved . . . that the lands were not divisible in kind, the Court could have ordered a sale without appointment of Commissioners to ascertain a fact which had already been adjudicated.
* * *
Appellees had a television antenna located on the partitioned property and a door from their establishment opening on to the South half allotted them. Appellants did not have anything of this nature on the property in question.
59 Am. Jur. 2d Partition § 117, p. 861 (1971), states inter alia:
The well-settled rule is that the action of commissioners in partition will not be set aside on the ground of unequal allotments except in extreme cases, as where the partition appears to have been made upon wrong principles, or where it is shown by very clear and decided preponderance of evidence that the partition is grossly unequal. * * *
Although differences of opinion might arise as to the division made by the commissioners, confirmed by the trial court, we find they were in a better position to make the determination than is this Court. On review of the record we cannot say the chancellor’s determination that no great prejudice resulted to either party is against the preponderance of the evidence.
Affirmed.
We agree. Harris, C.J., and Fogleman and Hickman, JJ- | [
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Darrell Hickman, Justice.
Rufus Roland Faulk was charged with forgery, uttering and possession of stolen property in Sebastian County, Arkansas. He waived a jury, was found guilty of uttering, and sentenced to five years in the penitentiary.
Faulk’s argument on appeal only goes to the question of a speedy trial. Faulk argues that he was denied a speedy trial, and the Arkansas law either requires dismissal of the charge or violates the Arkansas and United States Constitutions by denying an individual a speedy trial.
We find that Faulk was not denied a speedy trial, nor is the Arkansas law unconstitutional.
Before the Arkansas Rules of Criminal Procedure were adopted, the right to a speedy trial was governed by statute. See Ark. Stats. Ann. §§ 43-1708 and 43-1709. Since January 1, 1976, Rule 28 of the Rules of Criminal Procedure governs the right of an individual to a speedy trial. The statutes and Rule 28 are both relevant since the time in this case transits both 1975 and 1976. However, before examining the law, the dates and facts in this case should be discussed in detail.
February 11, 1975 Faulk was charged.
March 10, 1975 The information was amended.
April 15, 1975 The case was set and ready for a jury trial. It was continued on the motion of Faulk. Faulk moved to fire his lawyer and asked for a continuance. Both motions were granted.
May 21, 1975 Set for trial June 16th.
May 28, 1975 Faulk made bond.
June 2, 1975 He voluntarily surrendered to the State of Oklahoma.
June 9, 1975 He pleaded guilty in Oklahoma to two charges of unlawful distribution of a controlled substance and was sentenced to two years in the penitentiary.
June, 1975 Sometime prior to June 16th, Faulk filed a lawsuit in the Oklahoma courts to resist the efforts of Arkansas to bring him to trial.
June 13, 1975 Extradition instituted by Arkansas.
June 16, 1975 Trial date.
June 18, 1975 Extradition granted by the State of Oklahoma.
July 11, 1975 Case again set for trial July 14th.
July 14, 1975 Reset for the 21st of July on the motion of the State.
July 21, 1975 Trial date.
July 29, 1975 Oklahoma courts deny Faulk’s request to stop extradition.
September 24, 1976 Case was again set for trial.
October 20, 1976 Faulk found guilty.
in this case, Faulk argues that he was out on bail, three terms of court had run, and, therefore, the charges should be dismissed. We have two Arkansas statutes which govern the facts in this case during 1975. Ark. Stats. Ann. § 43-1708 provides that a person committed to prison must be brought to trial before the end of the second term of court unless the delay happens on the application of the prisoner. Ark. Stats. Ann. § 43-1709 provides that if a person is out on bail, the state must bring the case to trial before the end of the third term of court. In this case, Faulk was in jail in Arkansas during the first term of court, applied for a continuance and it was granted. He was never free on bail because he voluntarily surrendered to the Oklahoma authorities before his second trial date; and, because of his application to the Oklahoma courts, there was another delay. We have distinguished the case of an individual free on bail in this state, or in an Arkansas jail or prison, from the case of an individual in an out-of-state prison. We have held that when a person is in prison in another state for a different crime, that person must affirmatively request a trial in order to activate these statutes and avail himself of its protection. State v. Davidson, 254 Ark. 172, 492 S.W. 2d 246 (1973). In the Davidson case we stated:
However, one incarcerated in an institution of the federal government or that of some other jurisdiction must affirmatively request a trial in order to activate the statute and to avail himself of its protection. Lee v. State, 185 Ark. 253, 47 S.W. 2d 11 (1932). See also, Bedwell v. Circuit Court of Lawrence County, 248 Ark. 866, 454 S.W. 2d 304; Pellegrini v. Wolfe, Judge, 225 Ark. 459, 283 S.W. 2d 162 (1955).
Faulk did not request a trial at any time, and thereby activate the statute.
The Rules of Criminal Procedure, which we adopted January 1, 1976, govern part of the time in question. These rules also recognize that a person free on bail, in jail or prison in Arkansas, or in prison in another state must be treated differently. Essentially, the rules incorporate the two statutes that have been discussed. In computing time in which a prisoner must be brought to trial, certain periods of time are excluded. Rule 28.3 (e) provides any period of delay resulting from the resistance of a prisoner to being returned to this state for trial will be excluded in computing time. In other words, if Faulk resisted return to the State of Arkansas, then the delay occasioned by his resistance, will be excluded in computing the time in which a prisoner must be brought to trial.
We find that Faulk resisted every effort to bring him to trial, both while he was in Arkansas and while he was in the penitentiary in Oklahoma. The first time his case was set for trial, on the date of the trial, he asked the court to permit him to discharge his attorney and grant him a continuance. Both motions were granted. After his case was set for trial the second time, but before the trial date, he voluntarily surrendered to the authorities in Oklahoma, pleaded guilty, and was sentenced to two years in the Oklahoma penitentiary. When Arkansas attempted to extradite him for his second trial date, he filed a lawsuit and resisted all the efforts of Arkansas to bring him to trial.
Faulk argues that if his motion to dismiss the charges because he was denied a speedy trial is not granted as a result of Arkansas laws, then the laws are unconstitutional in violation of the Arkansas and the United States Constitution. We disagree.
The statutes of Arkansas and the rules of Criminal Procedure are designed to insure that individuals who want a speedy trial can have one. Also, they are designed to grant relief where the state neglects to try its cases within a reasonable time as defined by the statutes and rules. However, each case must also be examined for prejudicial factors. The criteria for judging the denial of the right to a speedy trial have been defined by the U.S. Supreme Court and adopted by this Court. See Barker v. Wingo, 407 U.S. 514 (1972), and Curan v. State, 260 Ark. 461, 541 S.W. 2d 923 (1976). We find no evidence of a violation of these criteria in this case. There is no evidence that the defendant asserted his right to a speedy trial at any time, was prejudiced by the length of delay, or that the delay was unreasonable. Faulk did not want a trial, speedy or otherwise. The constitutional right to a speedy trial cannot be a haven gained by legal trickery. It is a constitutional right that is available and enforced where the state fails to pursue a case to the prejudice of a defendant. We do not mean to imply that the representative of the state or the trial court pursued this matter in an urgent manner after the Oklahoma courts denied Faulk’s petition. The record is simply silent regarding any negligence on the part of the state, or the trial court, and the record contains no evidence of any prejudice to Faulk as a result of the delay. We find no merit to any of the arguments of Faulk.
Affirmed.
George Rose Smith and Roy, JJ., concur; Fogleman and Byrd, JJ., dissent. | [
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Frank Holt, Justice.
The two appellants are administraces of the respective estates of their husbands, who were killed in an automobile accident involving two alleged employees of the appellee, Nekoosa Papers, Inc. The appellants brought a suit against each of these individuals without including appellee. That action, based upon the asserted negligence of the two defendants, resulted in compromise settlements which were approved in the probate court. The probate court orders expressly provided that the settlements were full and complete between these parties. However, the orders provided that the settlements had no effect on any other persons, partnerships or corporations that could have any liability for the wrongful deaths of the administratrices’ husbands. The action was then dismissed with prejudice in circuit court pursuant to that stipulation. About two years later these same appellants filed the present action against the appellee, alleging that the two individuals named in the previous action were the agents, servants and employees of Nekoosa and, therefore, their negligence was imputed to it as their employer. The court sustained appellee’s motion for a summary judgment which asserted that the settlement and dismissal with prejudice of the previous action against appellee’s alleged employees was res judicata which barred the appellants’ present action against it.
This appeal, say appellants, presents the issue as to whether a compromise settlement with an agent, servant and employee, followed by a dismissal of the action with prejudice, bars a subsequent action against the employer when the issues of negligence and agency in a previous action were never litigated. It is appellants’ position that this subsequent action against the appellee employer is not barred by res judicata or collateral estoppel and, therefore, the court erred in granting a summary judgment. Appellants argue that res judicata is inapplicable here because the appellee employer was neither a party in the previous action against appellee’s employees nor in privity to any party in that action; res judicata is not applicable because the first action was against appellee’s employees and was concluded by compromise settlement and consent order and not rendered on the merits following litigation; there is no recognized exception to, or extension of, the doctrine of res judicata which would be applicable here; consideration of public policy does not require extension of res judicata to the compromise settlement of the previous action; and, finally, Davis, Administratrix v. Perryman, 225 Ark. 963, 286 S.W. 2d 844 (1956), and similar cases involve collateral estoppel, not res judicata, and collateral estoppel cannot be applied to this case.
We agree with the appellants that it is well settled that the relationship of an employer-employee is not privity for the purpose of the application of the doctrine of res judicata. Frisby v. Hurley, 236 Ark. 127, 364 S.W. 2d 801 (1963); and Davis, Administratrix v. Perryman, supra. Appellants, however, recognize that this court has in the past discussed terms as to “an extension of res judicata" to one not a party or privy to an action. Frisby v. Hurley, supra; Davis v. Perryman, supra; Ted Saum & Co. v. Swaffar, 237 Ark. 971, 377 S.W. 2d 606 (1964); and Bounds v. Travelers Ins. Co., 242 Ark. 787, 416 S.W. 2d 298 (1967). Here appellants recognize that these cases are identified as “exceptions” to the privity requirement. Appellants argue that these cases are not the correct application of res judicata and are examples of the application of the doctrine of collateral estoppel.
We are of the view that the trial court here correctly granted the motion for summary judgment. There is ample precedent that whenever an action is dismissed with prejudice it is as conclusive of the rights of the parties as if there were an adverse judgment as to the plaintiff after a trial. Union Indemnity Co. v. Benton County Lumber Co., 179 Ark. 752, 18 S.W. 2d 327 (1929); Bryant v. Ryburn, 206 Ark. 305, 174 S.W. 2d 938 (1943); and Harris v. Moye’s Estate, 211 Ark. 765, 202 S.W. 2d 360 (1947). Here, as indicated, the previous action asserting negligence on the part of appellee’s alleged employees (although appellee was not a party to that action) was fully disposed of by agreement and a dismissal with prejudice. In that case the issue as to the two defendants’ liability was predicated on their negligence. The dismissal with prejudice was as effective as if it were concluded adversely to appellants by litigation at trial. Here the asserted liability of the appellee employer is derivative from the same negligent acts of its asserted agents, servants and employees. See Saum & Co. v. Swaffar, supra; Frisby v. Hurley, supra; and Davis v. Perryman, supra.
We hold that the settlement and dismissal with prejudice of the first action are conclusive of the issue of negligence of appellee’s alleged employees. Therefore, since appellee’s liability, if any, is derivative of their alleged negligence, the present action would be a relitigation of that issue and, consequently, the action is barred.
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Byrd, JJ. | [
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George E. Campbell, Special Justice.
This action arises from the providing of electric service to Beaver Water District (“Beaver”) by Southwestern Electric Power Company (“SWEPCO”). Beaver is a regional water distribution dis trict organized under Act No. 114 of 1957 (Ark. Stats. Ann. §§ 21-1401 — 1415), as amended. Beaver has constructed water intake, treatment and pumping facilities in an area certificated for electric service by the Arkansas Public Service Commission to Carroll Electric Cooperative Corporation (“Carroll”).
From August 1, 1965 to December 31, 1972, electric service to Beaver had been provided by the Southwestern Power Administration (“SPA”), a Federal agency, which is empowered to distribute surplus electric energy from Federal reservoir projects. Such activity is authorized and governed by Section 5 of the Flood Control Act of 1944, 58 Stat. 890; 16 USCA § 825s. The electric service had been provided over a line constructed by Beaver from its facility in an area certificated to Carroll to a point outside Carroll’s area certificated to SWEPCO. SPA had contracted with SWEPCO to provide the electric energy which SPA billed and sold to Beaver, but Beaver was not a party to such contract.
SWEPCO and Beaver entered into a contract dated October 12, 1972, which provided that commencing January 1, 1973, electrical service would be provided to Beaver by SWEPCO which would bill Beaver directly. In September, 1972, prior to entry into the contract of October 12, 1972, Beaver requested that Carroll execute a waiver of its rights to serve Beaver.
Carroll commenced this action for a declaratory judgment on November 21, 1973, and thereafter judgment was entered in favor of Carroll determining that the contract of October 12, 1972, between Beaver and SWEPCO was void, and finding it to be in violation of Ark. Stats. Ann. § 73-240 (Supp. 1975) which provides, in part, that no utility service may be undertaken by a public utility in an area allocated to another electric cooperative or public utility.
The cities of Fayetteville, Rogers and Springdale were granted leave to intervene or appear as amicus curiae in this cause and have presented briefs in support of the position of SWEPCO and Beaver. The positions urged by these parties are substantially those of SWEPCO and Beaver and are addressed in this Opinion.
Beaver and SWEPCO have appealed and assert three principal arguments for reversal: (1) Beaver is authorized by its enabling legislation to own and operate electric transmission lines and may obtain electric power from SWEPCO; (2) Beaver is exempt from the authority of the Public Service Commission, and may in the exercise of its lawful powers contract with SWEPCO for electrical service without regard to Section 73-240; and (3) in any event, if Carroll had a cause of action it is barred by the statute of limitations or laches.
Beaver and SWEPCO urge the particular application of Ark. Stats. Ann. § 21-1408(3) granting to Beaver the power—
“(3) . . . ; to transport, distribute, sell, furnish and dispose of such water to any person at any place; to construct, erect, purchase, lease as lessee and in any manner acquire, own, hold, maintain, operate, sell, dispose of, lease as lessor, exchange and mortgage plants, buildings, works, machinery, supplies, equipment, apparatus, facilities, property rights, and transportation and distribution lines, facilities, equipment or systems necessary, convenient or useful.”
SWEPCO and Beaver argue that the statutory powers granted to Beaver to effectuate its purposes are sufficient to enable it to construct its own electric power line from Carroll’s certificated territory into SWEPCO’s certificated territory at which point SWEPCO may then lawfully deliver electric service. We do not agree.
While the grant of powers under Act No. 114 of 1957 is in many respects broad and general, these powers are granted in the context of the operation of water distribution facilities and services. We do not hold that it is not permissible for a district such as Beaver to construct electric utility lines to serve its needs, but these powers must be construed within the broader regulatory framework of existing statutes if such is reasonably possible. The construction of an electric power line from one certificated territory to another is not such a “necessary, convenient or useful” act as to frustrate the intent of the General Assembly in its structure for the regulation of public utility service established by Act. No. 324 of 1935, and as subsequently amended. While there appears to be no previously decided case in Arkansas, other jurisdictions have recognized that the place and purpose of the use of electric energy is controlling, rather than the place of connection. In Capital Electric Power Association v. Mississippi Power & Light Company, 218 So. 2d 707, a college was located in the area certificated to Capital Electric Power Association. The college provided electrical lines from its facilities to a point outside the certificated area of Capital Electric and obtained service from Mississippi Power & Light Company. The Mississippi Public Service Commission issued an order directing Mississippi Power & Light Company to terminate the service. The Mississippi Supreme Court stated:
“The explicit policy under our Act has been one of ‘exclusive’ service area. If Mississippi Power & Light cannot service Whittington Hall directly, certainly to do so would be a violation of the Act. Any right to serve Whittington Hall must come from rights statutorily possessed by the Company.”
The Mississippi Court also quoted with approval the conclusions of the Tennessee Supreme Court in the decision of Holston River Electric Company v. Hydro Electric Corporation, 17 Tenn. App. 122, 66 S.W. 2d 217, in which a private company had constructed a line to a point outside the city limits to obtain electrical service from a company which was not authorized to provide electrical service within the municipality. While the Holston case may be distinguished as to the nature of the private litigation, the sound reasoning that the place of delivery of the electric current is not controlling, but rather the place and the purpose of its use must be the controlling factor is without question.
Section 11 of Act No. 114 of 1957 provides:
“Water districts organized under this Act shall be exempt in any and all respects from the jurisdiction and control of the Public Service Commission of this State.” (Ark. Stats. Ann. § 21-1411).
Beaver and SWEPCO urge that since Beaver is exempt from Public Service Commission regulation under the foregoing provision its activities for contracting for electrical service with SWEPCO is not contrary to Section 73-240 because Section 21-1411 has impliedly repealed Section 73-240.
Section 73-240 is a statute of general nature in a scheme of public utility regulation. We do not believe it necessary in giving effect to Section 21-1411 that the repeal of Section 73-240 as to Beaver is necessarily implied. This Court has stated:
“The cardinal rule for the construction of statutes is that the legislative intent should be ascertained, which may be done by construing every part of the statute together with reference to all laws which relate to the same subject as a single system, so as to give effect to the legislative intent and to carry into effect the general purpose of the system.” Pace v. State Use Saline County, 189 Ark. 1104, at 1110, 76 S.W. 2d 294.
The purpose of Act No. 114 of 1957 was to enable cooperation with Federal programs to provide a means of water distribution through publicly created non-profit bodies. A reasoned construction of Act No. 114 in relation to the existing statutory plan of public utility regulation derived from Act 324 of 1935 necessarily permits the harmonizing of both Section 73-240 and Section 21-1411. We conclude that as to the sale and delivery of water a district such as Beaver formed under the authority of Act. No. 114 of 1957 may be free of Public Service Commission jurisdiction under the clear language of Section 21-1411. However, to extend the authority of Section 21-1411 further, and to permit Beaver to engage in any other public utility function or contract with public utilities totally free of the limitation of Section 73-240, cannot follow.
It is asserted, finally, that notwithstanding the possible application of one or more statutory restrictions, Carroll should have commenced its action within five years from the arrangement between SPA and SWEPCO, or is otherwise barred from this proceeding under the doctrine of laches. The record reflects knowledge by Carroll’s former manager that Beaver was obtaining electric service from SPA. Testimony was also developed that at some unspecified time Carroll through its former manager informally registered a verbal protest with an SPA official. No administrative or judicial proceedings were commenced by Carroll prior to the suit here on appeal.
Carroll urges that prior to October 12, 1972, it had no cause of action because SPA, an agency of the United States, was contracting to provide electrical service to Beaver and any effort to challenge this procedure would have been unsuccessful. We agree.
Had Carroll commenced an action against SPA or SWEPCO the Federal decisions are clear that Carroll could have obtained no relief. The authority of the SPA to make sales of electric power and contract with private companies for its distribution has been judicially considered and it has been determined that private parties (including particularly competing public utilities) have no standing to sue. Kansas City Power & Light Company v. McKay, 225 F. 2d 924, Cert. Denied, 76 S. Ct. 137, 350 U.S. 884. In certain instances Federal statutes concerning electrical production programs do require consideration of competitive matters, but this is not true of Section 5 of the Flood Control Act of 1944. See, e.g., Hardin v. Kentucky Utilities Co., 390 U.S. 1, 88 S. Ct. 651, construing Tennessee Valley Authority legislation.
We are of the opinion that Carroll’s right of action did not arise until SWEPCO entered into a contract directly with Beaver in violation of the provisions of Section 73-240, and that Carroll thereafter initiated its suit within the proper time.
Other arguments of the appellants have addressed the question of the probability of increased cost of service to Beaver from Carroll since SWEPCO would provide service at a lower cost. This may be the result of this litigation, but that matter is not properly before the Court for consideration.
The judgment of the Chancery Court of Benton County is affirmed, the stay order previously entered is dissolved, and this case is remanded for such additional relief as may be required to effectuate the judgment of the lower Court.
Fogleman, J., not participating. | [
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George Rose Smith, Justice.
The appellant, Raymond E. Huff, was the holder of a $5,000 contingent claim against the estate of Joe N. Bruce, deceased. The claim became absolute more than six months before the probate court’s final order of distribution of the estate, but Huff failed to present the claim for allowance within that interval. Instead, he brought this suit in the circuit court, asking the court to enter a declaratory judgment holding that the distributees of the estate (the appellees) are liable for the debt up to the extent of the property received by them from the estate. This appeal is from a summary judgment holding Huff’s cause of action to be barred by reason of his failure to file a claim against the estate within six. months after the claim became absolute. The only issue is whether the trial court properly interpreted subsections (b) and (c) of § 119 of the Probate Code. Ark. Stat. Ann. § 62-2610 (Repl. 1971). We agree with the trial court.
Huff, the claimant, and Bruce, the decedent, were comakers of promissory notes due August 1, 1974. Bruce died on February 4, 1974, with the first notice to creditors of his estate being published on February 13. Huff and the holders of the notes filed a claim against the estate on March 14, 1975. That claim was denied, presumably because it was not filed within six months after the first notice to creditors. Ark. Stat. Ann. § 62-2601. No appeal was taken from the dis-allowance of the claim. Huff paid the notes in full on June 3, 1975; so what had been a contingent claim against the estate for Bruce’s share of the debt became absolute. Huff filed this suit against the distributees on August 13, 1975. The probate court’s final order of distribution was made on May 26, 1976, with Huff having taken no further action against the estate.
Section 119 of the Probate Code comprises three subsections. Subsection (a) permits the holder of a contingent claim to file it in the probate court and prove it. Doubtless one purpose of subsection (a) is to enable the contingent creditor to prove his claim while the supporting evidence is still available.
We are concerned with subsections (b) and (c), which read as follows:
b. Claims Which Become Absolute During Administration.
A contingent claim which becomes absolute six months or more prior to the order of final distribution shall be presented for allowance within six months after becoming absolute; and when so allowed shall be deemed an absolute claim as against assets which have not been distributed or distribution whereof has not been approved, and shall be entitled to the benefit of the provisions of subsection c as to assets which do not re main in the hands or subject to the control of the personal representative.
c. When Barred Against the Estate. Contingent claims not presented within the time prescribed by Section 110 [§ 62-2601], or subsection b hereof, shall be barred as against the estate, but within the time now or hereafter permitted by law for bringing actions thereon, may be enforced against distributees of the estate to the extent of the assets of the estate or the proceeds thereof, remaining in the hands of such distributees. [Ark. Stat. Ann. § 62-2610.]
The correct interpretation of the statute is not entirely free from doubt. Huff argues that subsection (b) is merely permissive as to claims becoming absolute more than six months before the order of final distribution, leaving such a creditor free to pursue a remedy against the distributees, under subsection (c), without having filed a claim under (b). In making that argument Huff relies upon the reference in subsection (c) to “claims not presented within the time prescribed by ... subsection b hereof.” He also stresses the statement in the Committee Comment that subsection (c) covers “the rights of the holders of contingent claims who were not required to and did not present their claims (whose rights are not barred thereby) and whose claims become absolute more four italics] than six months prior to the order of final distribution.”
In construing the slightly conflicting language of the statute and of the Comment to require the filing of claims that become absolute more than six months before the final order of distribution, we are strongly influenced — as we should be — by the practical desirability of that interpretation. We must assume that the draftsmen of the Code and the legislators who approved it intended a good result, not a bad one.
In the first place, the Code fixes six months as the basic period allowed for the filing of claims. § 62-2601. It is fair and reasonable to allow that same period for the filing of a contingent claim after it becomes absolute. Otherwise a creditor whose claim was due when the notice to creditors was published would have only six months for the assertion of his demand, but a creditor whose contingent claim became absolute one week after that publication would have extra months and even years in which to act. Such a protracted period of uncertainty about the liability of the estate or of the distributees is to be avoided.
In the second place, there are decided advantages in requiring that claims be asserted against the estate rather than against the distributees. The various beneficiaries of an estate are often residents of two or more jurisdictions. Thus the assertion of a single demand against them might entail a multiplicity of suits. There might also be problems about the comparative value of the property received by the several distributees and the extent to which they still had the property or its proceeds. All such difficulties are avoided if the claim must, whenever reasonably possible, be asserted against the estate.
The considerations just mentioned are supported by the presence of mandatory language in the statute and Comment. Subsection (b) provides that contingent claims that become absolute six months or more before the order of final distribution “shall” be presented for allowance within six months after becoming absolute. “Shall” is frequently used as a synonym of “must” rather than as a future auxiliary verb. Fort Smith Gas Co. v. Kincannon, 202 Ark. 216, 150 S.W. 2d 968 (1941). The Comment, in referring to subsection (b), recognizes “the requirement” that claims becoming absolute at least six months before the final order of distribution be filed. Colonel Adrian Williamson, one of the draftsmen of the Code, regarded subsection (b) as mandatory. In his words: “If the claim becomes absolute six months prior to the final distribution, it must be filed within six months after it became absolute.” Panel on Experience Under the Arkansas Probate Code, 12 Ark. L. Rev. 38, 56 (1957). We made a similar statement in Whitener v. Whitener, 227 Ark. 1038, 304 S.W. 2d 260 (1957), although the point was not directly at issue.
We are not persuaded that the many reasons favoring a mandatory interpretation of subsection (b) are overcome by the arguments urged by the appellant. In particular, we agree with the appellees’ suggestion that the word “more,” which we italicized in quoting subsection (c), was inadvertently used instead of “less.” Unless that view is taken, the statute and the Comment are hopelessly self-contradictory. We cannot believe such a result to have been the legislative intention.
Affirmed.
Byrd, J., dissents. | [
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John A. Fogleman, Justice.
Appellant James Matthews was found guilty of burglary and grand larceny. At his trial, a confession was introduced in evidence after the trial judge had held that it was voluntary. The sole point for reversal is the contention that the court erred in so holding.
Appellant contends that his confession in this case was involuntary, not because he was not advised of his rights when he confessed on December 28; 1975, or because the confession was the result of threats, physical force or inducements offered at that time, but because he contends that he was under the influence of coercion some 11 months earlier, when he confessed to a crime for which he was never prosecuted.
Appellant is 21 years of age and reached the ninth grade in school. He was arrested and questioned by Deputy Sheriffs Stan Ledbetter and Cecil Dobbs. Dobbs said that he was out of the room during part of the time the interrogation was conducted and the confession obtained. Matthews testified that he was arrested in January of 1975, taken to the sheriff’s office for the investigation of burglaries and saw Deputy Sheriffs Ledbetter, Pierce and West physically abusing Ricky Hood, who was also being interrogated about these burglaries. He said he saw them pull Hood’s hair and hit him in the stomach and later heard Hood scream when they took him behind closed doors. Matthews said that when he was being interrogated, they pulled his hair and hit him on the back with a blackjack and also used their hands to hit him on the back. He had been arrested about 9:00 p.m. on Monday, confessed about 3:00 p.m. on Wednesday to having taken a CB radio from a car on a roadside and had been released at 5:00 p.m. on the same date, according to his testimony. He was not prosecuted for that crime and never heard about it again. He said that his current confession was induced solely because of what had happened on the previous occasion; that he was afraid of Ledbetter, Dobbs and Pierce, and was afraid that if he did not confess he would be beaten up again.
There was corroboration of the mistreatment of Ricky Hood by Hood and Michael Castleman, then an attorney in the public defender’s office. Hood said that he and Matthews were at the sheriff’s office on the same day and that when Jimmy and two others came out of the interrogation room into which they had been taken one at a time, their hair was “sticking out all over.” Castleman testified about the physical condition and appearance of Hood after having been interrogated on this occasion. The only contradiction of this testimony was by Ledbetter, who denied that he had ever made any threats to Matthews at any time, that he had been in the presence of anyone who did or that he had been present when any member of the sheriff’s office struck Matthews or pulled his hair. He was not sure whether he was present when Ricky Hood was interrogated, but did not see any officers strike him in an effort to get him to make a statement. He could not remember who else was present and did not know whether either Pierce or West was present. He could not remember the date, because Ricky Hood had been brought into the office at different times in connection with different offenses.
The real question presented is whether the state met its burden of proof. In Smith v. State, 254 Ark. 538, 494 S.W. 2d 489, we held that whenever the accused offers testimony that his confession was induced by violence, threats or coercion, then the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence. We held in Smith v. State, 256 Ark. 67, 505 S.W. 2d 504 and Russey & Way v. State, 257 Ark. 570, 519 S.W. 2d 751 that an objection to the absence of officers who participated was not necessary; that an objection to the confession as being involuntary was sufficient to require the state to present all material witnesses or adequately explain their absence. In Northern v. State, 257 Ark. 549, 518 S.W. 2d 482, we held that it was up to the state, not the defendant, to produce the absent witnesses and applied the rule as to the burden on the state. Of course, neither Pierce nor West participated in obtaining the controverted confession.
It is well established that coercion can be accomplished psychologically as well as physically. Whether psychological coercion exists depends upon a weighing of circumstances of pressure against the power of resistance of the confessor. The question may be answered only by reviewing all the circumstances surrounding the confession. Whether a confession subsequent to one obtained by unlawful pressure is voluntary depends upon whether an inference as to the continuing effect of the coercive practices may fairly be drawn from the surrounding circumstances and is determined by a conclusion as to whether the accused, at the time of the second confession, was in possession of mental freedom to confess or deny his suspected participation in a crime. The effect of earlier abuse may be so clear as to forbid any inference other than that the later confession is involuntary. On the other hand, one making a confession which is involuntary is not perpetually disabled from making a voluntary confession after the conditions of abuse have been removed. Lapse of time is an important consideration. See Annot, 1 L. Ed. 2d 1735 (1957); 4 L. Ed. 2d 1833 (1960); 12 L. Ed. 2d 1340 (1965); 16 L. Ed. 2d 1294 (1967); 29 Am. Jur. 2d 595, Evidence § 543; 23 CJS 194, Criminal Law § 817 (10).
We cannot say that the holding of the trial court was clearly against the preponderance of the evidence before it. The question whether the previous incident was too remote to consider in connection with an interrogation about a wholly unrelated crime was a matter for the trial court’s determination after hearing the witnesses and we cannot say that the trial judge erred in that respect. We decline to extend the rule of Smitk, Smith, Russey and Northern to a case where the accused has been at liberty for eleven months after his alleged mistreatment and the interrogation is about a wholly unrelated crime.
The judgment is affirmed. | [
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George Rose Smith, Justice.
Charged with possession of marihuana, Newberry was first convicted in municipal court and sentenced to six months in jail and a $500 fine. The municipal judge suspended five months and nine days of the jail sentence and half of the fine. Newberry appealed to the circuit court, where he was again convicted and sentenced to six months in jail and a $250 fine, without any suspension. He asserts three points for reversal.
First, the State’s testimony is amply sufficient to support the verdict. An officer testified that he saw Newberry take something from the trunk of a car, unlock the car, and get in, with two girls. When the officer approached the car he saw next to Newberry a package that proved to be marihuana. Newberry, upon being placed under arrest, spontaneously said, “Oh, hey man, that’s my marihuana; keep the girls out of it. ” Despite the contradicting testimony for the defense, the jury had a sufficient basis for its verdict.
Second, at the beginning of the circuit court trial the defense asked that it be permitted to withdraw the appeal and let the municipal court judgment be affirmed. The circuit judge denied the request, explaining that a pretrial date had been set and that counsel had been notified that all pretrial motions should be lodged on that date. At the pretrial conference the defense entered a plea of not guilty and announced that the cause was ready for trial.
The court did not abuse its discretion in denying the motion to dismiss the appeal. When an appeal takes a case to a purely appellate court, for a review of the judgment of a trial court, the appellant has a right to dismiss the appeal and submit to the judgment, if there is no prejudice to the appellee. Bush v. Barksdale, 122 Ark. 262, 183 S.W. 171, L.R.A. 1917A, 111 (1916). But when the appeal is to an intermediate court for a trial de novo, the prosecution is as much a party to the transaction as it was in the court below. The intermediate court, and not the accused, is then vested with the power of dismissal. State v. Collins, 195 Kan. 695 (1966); Dressman v. Commonwealth, 204 Ky. 668, 265 S.W. 2 (1924); Seay v. Commonwealth, 155 Va. 1087, 156 S.E. 574 (1931). The court might, for example, find the original sentence to be inappropriate or think a trial to be a necessary step toward discouraging dilatory appeals. In the case at bar we perceive no basis for saying that the circuit judge abused his discretion in the matter.
Third, as the witnesses were being sworn the court asked defense counsel if he wished to have his client sworn at that particular time. Counsel, without responding directly, said that he had a motion to make. Later on, outside the presence of the jury, counsel moved for a mistrial, on the ground that the court’s inquiry unduly emphasized the accused’s right to testify or not to testify.
The court was right in refusing to grant a mistrial. Counsel relies upon Munn v. State, 257 Ark. 1057, 521 S.W. 2d 535 (1975), but the cases are significantly different. There the trial judge, in reply to counsel’s statement that the accused had a right to be sworn at a later time, remarked: “Sure. Sure. He doesn’t have to take the stand at all if he doesn’t want to.” That positive assertion erroneously brought to the jury’s attention the defendant’s right to testify or to remain silent. Here, by contrast, the court’s routine inquiry was not an affirmative assertion of fact. Even if we shodld take the view that the inquiry should not have been made, the error was certainly harmless.
Affirmed. | [
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Conley Byrd, Justice.
Dr. John Hundley, an orthopedic specialist, on direct examination testified that his total bill for treating appellant Evelyn Hubbard was $2,200.50. He considered his charges to be reasonable and necessary. On cross-examination and over the objection of appellant, Dr. Hundley testified that he was a member of the Arkansas Medical Society. He admitted that his charges for the treatment of one of his patients had recently been reviewed by a committee of the Arkansas Medical Society and that he was notified that his charges were three times the maximum charged by the average orthopedist. The letter from the reviewing committee of the Arkansas Medical Society was not introduced or read into evidence.
Appellant contends that the cross-examination of Dr. Hundley was in violation of the hearsay rule and that the evidence was irrelevant. The Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, Rule 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The cross-examination here only elicited from Dr. Hundley that other experts in his same field had considered his charges in the past to be unreasonable. This was a fact within the knowledge of Dr. Hundley and would not be hearsay within the definition set out in Rule 801(c), supra. Our cases readily recognize that an expert on cross-examination may be examined to see how his opinion on the matter in issue compares with other recognized authorities for purposes of ascertaining the weight the fact finder should give to his opinion, Scullin v. Vining, 127 Ark. 124, 191 S.W. 924 (1917).
The characterization of Dr. Hundley’s charges by the Arkansas Medical Society as being three times as high as that charged by the average orthopedist was certainly relevant within the definition of Ark. Stat. Ann. § 28-1001, Rule 401, to the credibility of Dr. Hundley’s assertion that his total bill of $2,200.50 for the treatment of appellant was reasonable.
Affirmed.
We agree: Harris, C.J., and Fogleman and Hickman, JJ. | [
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George Rose Smith, Justice.
This appeal is from a decree granting' a divorce to the appellant on the ground of three years separation, awarding her the custody of the parties’ three children, increasing a prior support allowance from $70 to $100 a month, reducing the husband’s previous delinquent payments to judgment, dissolving the tenancy by the entirety that formerly existed as to the family homestead, and directing that the homestead be sold and the proceeds be divided between the parties.
The appellant makes two contentions for reversal. First, she argues that the monthly support allowance should have been increased to $150 instead of to $100. This argument is based upon the appellee’s testimony that it takes at least $150 a month to provide support for the children. That, however, is not the sole pertinent consideration. The husband’s ability to pay must also be taken into account. Williams testified without contradiction that he earns only $56.01 a week and that his own living expenses exceed that amount. The decree requires him to pay $100 a month for the children’s support and to carry hospitalization coverage for their bene fit, which costs $12.55 a month. We are unable to say that the chancellor’s decision is against the weight of the evidence. His division of the available income appears to be as fair as the circumstances permit.
Secondly, the appellant contends that her money judgment for delinquent support payments should have been declared to be a lien upon the appellee’s share of the proceeds to be derived from the sale of the homestead. The court was right in rejecting that contention. The constitution is specific in declaring that the homestead shall not be subject to the lien of any judgment or decree, with certain exceptions that do not apply here. Ark. Const., Art. 9, § 3. In Massengale v. Massengale, 186 Ark. 917, 56 SW. 2d 763 (1933), we held that a judgment for accrued alimony “was of no more force than any other judgment, and had no more validity against the homestead than any other judgment.” The principle of that case is controlling, because neither a judgment for alimony nor a judgment for child support is among the enumerated exceptions to the homestead exemption.
Affirmed. | [
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Elsijane T. Roy, Justice.
Appellee Grand Prairie Savings and Loan Association filed an application for a charter to operate a savings and loan association at Stuttgart. Appellant First Federal Savings and Loan Association of Stuttgart filed a protest to the application.
At a hearing on the application November 18, 1975, only four of the five members, including the chairman, of appellant Arkansas Savings and Loan Association Board were present. At the conclusion of the proceedings two members of the Board voted to grant the application and one member voted to deny it. The chairman then voted to deny it and stated that “by a vote of two to two the application must fail.”
The decision of the Board was appealed to the Pulaski Circuit Court which decided the application had received the requisite number of votes under the provisions of Rule II (A) (4), adopted by the Board on August 27, 1973, and directed the Board on remand to enter an order granting the application. It is from the decision of the Pulaski Circuit Court that the Board has taken this appeal.
Rule II (A)(4) reads:
A quorum shall be required for any meeti ig of the Board and shall consist of not less than a majority of the authorized number of members of the Board. At least three Board members eligible to vote must be present in order to consider any matter before the Board. A majority vote of the Board members present and eligible to vote shall be required for approval of any action. All members present except the Chairman shall be allowed to vote on all matters submitted to a vote of the Board. The Chairman can (but is not obligated to) vote whenever his vote will affect the result; that is, he can vote to break a tie or when his vote is necessary to determine a majority vote of the Board.
Protestant First Federal was granted permission to intervene in the appeal, and the points for reversal urged by it and the Board will be discussed together.
The first issue presented is whether the trial court erred in holding the chairman of the Board illegally cast his vote to cause a tie vote.
Appellants cite cases holding that an administrative agency’s interpretation of its own rule is controlling unless plainly erroneous or inconsistent. We recognize a state agency’s interpretation of its regulations is highly persuasive but not controlling. Brawley School District No. 38 v. Kight, 206 Ark. 87, 173 S.W. 2d 125 (1943). Courts look to the administrative construction of a regulation “if the meaning of the words used is in doubt.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S. Ct. 1215, 89 L. Ed. 1700 (1945).
However, we do not find the meaning of the words in doubt and agree with the conclusion of the trial court that the Rule does prohibit the chairman from voting except when his vote is necessary to break a tie or to determine a majority vote of the Board.
In view of this determination of the meaning of the Rule it is unnecessary for us to discuss other arguments made by appellants concerning its construction.
However, we find merit in appellants’ contention that it was error for the circuit court to remand this matter to the Savings and Loan Board with direction to grant a charter without reviewing the findings of fact and legal conclusions of the Board. In effect, the review of the circuit court amounted to an interlocutory ruling involving procedure only and was not a complete judicial review.
The findings of fact entered by the Board supported denial of the application. The conclusions of law of the Board state inter alia that appellee did not establish the following:
(1) That there is a public need for the proposed association ....
(2) That the operation of the proposed association will not unduly harm any other existing association ....
Therefore, it was inappropriate for the circuit court to direct the granting of a charter since the only findings in the record are in support of a denial of the charter, not in support of granting one.
For the same reasons it would be inappropriate on the record before us for this Court to decide whether the charter should be granted.
In First State Building & Loan Assn. v. Ark. S&L Bd., 257 Ark. 599, 518 S.W. 2d 507 (1975), we stated:
* * * We do not know, from the Order, what specific facts the Board relied upon in granting the application and we will not attempt to supply the deficiencies in an administrative Order by weighing evidence which is the responsibility of the administrative agencies. (Italics supplied.)
# $ jfc
This Court held in Arkansas Savings and Loan Board et al v. Central Arkansas Savings and Loan, 256 Ark. 846 (1974) that the requirements of Ark. Stat. Ann. § 5-710, Supp. 1973, are primarily for the benefit of the reviewing Court and cannot be waived by the parties.
* * *
The judgment is reversed and the cause remanded through the Circuit Court to the Board for such further proceedings as may be necessary.
Accordingly this cause is also remanded to the circuit court with directions to remand to the Board for such further proceedings as may be necessary.
We agree. Harris, C.J., and Fogleman and Hickman, JJ-
Use of the word “appellants” will include appellant-intervenor and the Board. | [
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Conley Byrd, Justice.
From a jury verdict finding appellant Jimmy Roy Johnson guilty of selling a controlled substance (marijuana) and fixing the penalty at 8 years and a fine of $10,000 comes this appeal raising the issues hereinafter discussed.
POINT I. Appellant contends that the penalty provisions of Ark. Stat. Ann. § 82-2617 (a) (1) (ii) (Supp. 1975) and of Ark. Stat. Ann. § 82-2618 (a) (2) (Supp. 1975) are in irreconcilable conflict because the former makes selling and distribution of marijuana a felony while the latter makes it a misdemeanor. Therefore, under the rule that penal laws are to be strictly construed in favor of the defendant, appellant contends that he was entitled to have the conflict resolved in his favor — thus reducing the penalty imposed to the misdemeanor proscribed in Section 82-2618 (a) (2), supra. In making his contentions that the two sections are in irreconcilable conflict and that we should apply the rule of strict construction in favor of the defendant in criminal cases, appellant overlooks other rules of construction such as that set out in Morrison v. State, 40 Ark. 448 (1883), where we said:
“It is an established rule in construing statutes that all acts passed upon the same subject, or in pari materia, must be taken and construed together, and made to stand, if capable of being reconciled; ... If any of their provisions are in irreconcilable conflict the provisions which are the latest expressions of the legislative will must prevail.”
In connection with the rule that the latest expression of the legislative will must prevail, we note that Ark. Stat. Ann. § 82-2617 (a) (1) (ii), supra, was amended by Acts 1973, No. 186 to specifically provide that a delivery of marijuana would constitute a felony and since that is the latest expression of the legislative will it should supersede any conflict between the two provisions. See Patty v. State, 260 Ark. 539, 542 S.W. 2d 494 (1976).
POINT II. Appellant here contends that the trial court erred in allowing the State to strike a juror that had previously been accepted by both the State and the defense. The record shows that the juror had attended high school with the defendant and was an in-law of defendant’s attorney. Furthermore, the record shows that the State had somewhat reluctantly accepted the juror at first in a good faith effort to get a jury from the existing panel and that the tardy request to strike came after it was apparent that additional prospective jurors had been called. Under the circumstances, we cannot say that the trial court abused its discretion in permitting the tardy strike by the State. See Ark. Stat. Ann. § 43-1914 (Repl. 1964).
POINT III. Appellant here contends that he was entitled to a mistrial because of some leading questions of the State upon redirect of the undercover policeman. The record shows that when the State started making leading inquiries, appellant at first objected generally. At that point the objection was overruled by the court who explained that appellant had opened up the subject. Thereafter, in connection with an objection that the State was leading the witness, the court did sustain an objection. Finally, the court instructed the jury to disregard all of the testimony relative to the search of appellant’s home. Under the circumstances and as against the objections made, we cannot say that on the record before us, the trial court erred in failing to grant a mistrial. As has often been pointed out, a mistrial is a rather drastic measure and one in which a trial court has a wide latitude of discretion.
Finally, appellant asserts that he should have been permitted to call the sheriff to rebut the testimony elicited by the State through leading questions. However, in view of the fact that the trial court struck all such evidence, we cannot say that error was committed in the refusal to permit appellant to rebut that which the jury was told to disregard.
POINT IV. Appellant here lists a number of occasions in which he contends that the trial court erred in allowing the State to ask leading questions. We have noted in a number of decisions that the existence of a leading question in a trial record does not necessarily indicate prejudicial error and that some utilization of leading questions is within the discretion of the trial court. See West v. State, 209 Ark. 691, 192 S.W. 2d 135 (1946). On the record before us we cannot say that the trial court abused its discretion in the matter.
Affirmed
We agree: Harris, C.J., and George Rose Smith and Holt, JJ. | [
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George Rose Smith, Justice.
The appellant, 30, was charged with a misdemeanor: possession of six tablets of sodium butisol, a Schedule III controlled substance. Ark. Stat. Ann. § 82-2609 (Repl. 1976). The jury found him guilty and imposed the maximum sentence, imprisonment in the county jail for one year and a $250 fine. For reversal he contends that the trial court should have allowed him to prove that the retail value of the pills was about four cents each.
The pivotal issue of fact was whether Brady had possession of the pills. Two police officers testified that, acting upon a tip, they concealed themselves, watched a certain grassy area in Corning, nnd saw Brady drive up, drop a small bottle that was found to contain the pills, and drive away. Brady testified positively that he does not use drugs, he did not drop the bottle of pills, and the officers’ story was fabricated.
Defense counsel, in his opening statement to the jury, stated that expert testimony would show that the pills were worth less than thirty cents. The State, in presenting its case in chief, elicited the sheriff’s opinion that the street value of the pills was two dollars each. Defense counsel did not object to that testimony. Later on the defense proffered, in chambers, the testimony of a pharmacist that the pills were tranquilizers worth about four cents each and were frequently prescribed by physicians. The court sustained the State’s objection, on the ground that possession of any quantity of the drug, regardless of price, was a violation of law unless obtained by prescription.
Counsel for the appellant argues that the proffered proof, even if ordinarily inadmissible, should have been received in rebuttal of the State’s evidence of street value. That contention may very well be meritorious. Wigmore on Evidence, § 15 (3d ed., 1940); McCormick on Evidence, § 57 (2d ed., 1972). We prefer, however, to rest our decision upon a simpler rule.
When, as in Arkansas, the jury fixes the punishment for criminal offenses, evidence in aggravation or mitigation of an offense is often admissible to assist the jury in arriving at a fair verdict. Wilson v. State, 247 Ind. 680, 221 N.E. 2d 347 (1966); Dobbins v. State, 21 Old. Cr. 403, 208 P. 1056 (1922); Stroud v. State, 159 Tenn. 263, 17 S.W. 2d 899 (1929). Here the prosecution, pursuant to that rule, had introduced evidence of street value, tending to suggest that Brady was a “pusher.” That testimony is now challenged as being based on hearsay, but the trial judge found that the sheriff was qualified to state an expert opinion, which may be derived from facts learned by hearsay. Ark. State Highway Commn. v. Russell, 240 Ark. 21, 398 S.W. 2d 201 (1966). Brady should have been permitted to prove in mitigation that the pills were merely tranquilizers of nominal value. It certainly cannot be said with confidence that the error was not prejudicial. Brady had no prior criminal record, but the jury imposed the maximum sentence — a year in jail and á $250 fine — for what might have been found to be a trivial offense if the proffered proof had been admitted.
Reversed and remanded for a new trial.
We agree. Harris, C.J., and Byrd and Holt, JJ. | [
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George Rose Smith, Justice.
In April, 1971, the appellants, as landlords, rented about 4,000 acres of farmland in Crittenden and Cross counties to Frank and Louis Alpe and Alpe Farms, Inc. The lease, to run for the rest of the calendar year, was for a cash rental of $59,560, payable November 15, 1971. The Alpes were members of Riceland Foods, Inc., an agricultural co-operative. In the fall the crops — rice and soybeans — were sold by the Alpes to Riceland and its affiliated association. Riceland made the purchase-money checks payable to the Alpes and to the Farmers Home Administration, which held a recorded security agreement to secure its advances to the Alpes for making the crop.
The Alpes paid only about $16,000 upon the rent, leaving a deficit of almost $43,000. This suit for that amount was brought by the landowners against the Alpes and also against Riceland, on the theory that Riceland had paid for the crops without making any provision for the satisfaction of the plaintiffs’ statutory landlord’s lien. Ark. Stat. Ann. § 51-201 (Repl. 1971). The chancellor entered judgment against the Alpes, but held that the landlords, by their conduct in prior years, had waived their lien as far as Riceland is concerned.
It is settled, of couse, that if a tenant sells the crop to a purchaser without notice of the landlord’s lien, the buyer takes title free of the lien. Van Etten v. Lesser-Goldman Cotton Co,, 158 Ark. 432, 250 S.W. 338 (1923); Puckett v. Reed, 31 Ark. 131 (1876). Here, however, it cannot be — and indeed is not — seriously contended that Riceland had no notice that the crops had been grown by the Alpes as tenants. Louis Alpe testified that he so informed Riceland. Moreover, attached to the FHA security agreement were waivers by which the various landlords to some extent subordinated their liens to the FHA’s advances. Riceland checked the records every year in June or July to discover liens against its members. Presumably the FHA’s security agreement, with the attached subordination forms, was known to Riceland, as it included FHA in its purchase-money checks. Riceland’s officers testified candidly that they seldom made any inquiry, about landlord’s liens: “That’s really none of our business.” Under our reasoning in Merchants & Planters Bank v. Meyer, 56 Ark. 499, 20 S.W. 406 (1892), Riceland had more than sufficient information to require it to make a reasonable inquiry, which would have disclosed the landlord-tenant relationship.
Riceland argues, however, that the appellants waived their lien. The essential facts are not in dispute. The appellants, two sisters who live in Tennessee, inherited the land. The Alpes were their tenants for some five years, ending in 1971. In 1967 and 1968 no rent was due, as the Alpes cleared land in lieu of paying rent. In 1969 the rent was paid in full. In 1970 all except a small carry-over of about $900 was paid. The fifth year is the one now in issue.
On cross-examination the appellant Jean Holmes, who is an attorney and acted for herself and her sister, testified that she never gave the Alpes any instructions about how, when, or where to sell the crops. She did not ask the Alpes to have the purchase money made payable jointly. She assumed, and can be found to have known, that the crops were being sold to Riceland, but she never gave Riceland any notice of her claim, as landlord. The appellees rely primarily upon Missouri, Mississippi, and Texas cases in arguing that Mrs. Holmes’s conduct had the effect of waiving the lien.
We cannot accept that view. It must be remembered that the Alpes, as tenants renting the land for cash, were the owners of the crops and had the right to sell them. Barnhardt v. State, 169 Ark. 567, 275 S.W. 909 (1925); Robinson v. Kruse, 29 Ark. 575 (1874). In this respect the situation differs from that of a sharecropping arrangement, under which the landowner has the title to the crop and is entitled to market it.
The question naturally arises: What did Mrs. Holmes do in 1969 and 1970 that indicated any intention to waive her lien, either then or in a later year? The Alpes had the absolute right to sell the crops. They did so. They paid the rent. No action on the part of Mrs. Holmes was demanded. No occasion arose (except possibly as to the $900 carryover) that would even have enabled her to assert her lien, much less require her to do so; so what significance can be attached to her conduct? Certainly Riceland was not misled, for its fixed policy was to pay no attention to the possibility that produce brought to it by its members might be subject to a landlord’s lien. There was no burden on Mrs. Holmes to inform possible purchasers in the two counties of her lien. We have said that “one will not be held to have waived a lien unless the intent be express or very plain and clear. The presumption is always against it.” Blackwood v. Farmers Bank & Tr. Co., 200 Ark. 738, 141 S.W. 2d 1 (1940). As we have seen, Riceland was unquestionably on notice that the lien existed. We can find no basis for saying that Riceland was entitled to ignore it.
We do not overlook our holding in Planters Production Credit Assn. v. Bowles, 256 Ark. 1063, 511 S.W. 2d 645 (1974), where we agreed with Iowa and New Mexico decisions to the effect that a credit association’s policy of allowing its members to sell their crops at will waived the association’s security interest. Our holding, however, was immediately set aside by an amendment to the Uniform Commercial Code, Ark. Stat. Ann. § 85-9-306 (2) (Supp. 1975), which decidedly impairs the strength of Planters as a precedent.
Reversed.
FocjLeman, J., not participating.
Harris, C.J., dissents. | [
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Mehaffy, J.
The appellant, Perry County, on June 26, 1931, filed in the chancery court of Perry County the following complaint:
“MOTION POE SUMMARY JUDGMENT AGAINST SHERIFF OF YELL COUNTY, ARKANSAS
‘‘Plaintiff states that:
“Plaintiff is the owner of a valid and subsisting judgment against Morgan Utilities, Inc., in the sum of $10,276.94 obtained in this canse on the first day of September, 1930, which now remains wholly unpaid.
“On or about the.day of November, 1930, the plaintiff caused to be issued by the clerk of this court an execution upon said judgment, which said execution was directed to the sheriff of Yell County, Arkansas. Said sheriff was by said execution commanded to make of the estate of said Morgan Utilities, Inc., the sum of $10,-276.94, with interest at the rate of 4 per cent, per annum from April 22,1930, together with $27.70 costs.
“Said execution was promptly delivered to Baxter Gratlin, who was then sheriff of Yell County, but the said Baxter Gratlin has wholly failed and refused to return said execution to the clerk of this court, and plaintiff is therefore entitled to summary judgment against said Baxter Gratlin, and his bondsmen, J. W. Lewis, J. W. Wilson, Lynn Wilson, and C. C. Sharpe, in the sum of $11,577.77, which is the amount called for in said execution plus 10 per cent, penalties.
“A certified copy of the bond of the said Baxter Gatlin, as the former sheriff of Yell County, and signed by said J. W. Wilson, Lynn Wilson, J. W. Lewis and C. C. Sharpe, is filed herein, marked Exhibit A and made part hereof.
“Wherefore plaintiff prays that it be given summary judgment against Baxter Gatlin, J. W. Wilson, Lynn Wilson, J. W. Lewis and C. C. Sharpe in the sum of $11,577.77, together with any and all other legal and equitable relief to which plaintiff may be made to appear entitled, whether specifically herein prayed for or not.”
A copy of the official bond of Baxter Gatlin as the former sheriff of Yell County, principal, and J. W. Wilson, Lynn Wilson, J. W. Lewis and C. C. Sharpe as sureties is.attached.
The motion for summary judgment against the sheriff of Yell County,- Arkansas, and his bondsmen, above set forth, was filed in the 'chancery case of Perry County, plaintiff, against S. R. Morgan et al., defendants, in the Perry Chancery Court, on the 26th day of June, 1931.
On that day the plaintiff in that case, tie appellant here, caused the clerk of the Perry Chancery Court to issue the following summons requiring Baxter Gatlin, «T. W. Wilson, Lynn Wilson, J. W. Lewis and C. C. Sharpe to answer the summary motion above set forth:
“IN THE CHANCERY COURT OF PERRY COUNTY, ARKANSAS
“Perry County...Plaintiff, v. No. 1006
“S. R. Morgan et al..Defendants.
“The State of Arkansas to the sheriff of Yell County:
“You are hereby commanded to summon Baxter Gat-lin, J. W. Wilson, Lynn Wilson, J. W. Lewis, C. C. Sharpe to answer in twenty days after the service of this summons upon them a complaint filed against them by Perry County in the chancery court of Perry County, Arkansas, and warn them that same will be taken for confessed; and you will make due return of this summons on the first day that said court is in session after ten days after the issuance hereof.
“Witness my hand and the seal of this court this '26th day of June, 1931.
“J. R. McBath, Clerk.”
This summons was directed to the sheriff of Yell County and was sent to him or delivered to him. It was served by the sheriff of Yell County in Yell County upon each of the appellees on the 6th day of July, 1931, as shown by the following return which was filed in the office of the clerk of the Perry Chancery Court on the 17th day of July, 1931.
“State of Arkansas, County of Yell.
“On the sixth day of July, 1931, I have duly served the within by delivering a copy, and stating the substance thereof, to the within named Baxter Gatlin, J. W. Wilson, J. W. Lewis, Lynn Wilson and C. C. Sharpe,-as I am herein commanded.
“Buford Compton, Sheriff,
“By J. C. Caviness, D. S.”
On July 17th, appellees filed a petition for permission to appear for a special purpose. The petition was granted, and appellees filed the following motion to dismiss petition for summary judgment:
“MOTION TO DISMISS MOTION FOB STTMMABY JUDGMENT
“Comes now Baxter Gatlin, J. W. Wilson, J. W. Lewis, C. C. Sharpe and Lynn Wilson, by permission of this court, for the special purpose of this motion only, and move the court to dismiss the motion for summary judgment filed in this cause, and to quash the writ issued thereon, and for grounds state:
‘ ‘ That the cause of action, if any, of plaintiff in said summary proceeding, arose in Yell County, and that the venue is wrongfully laid in Perry County, Arkansas.
“That plaintiff obtained the issuance of summons for your petitioners from the clerk of the court, directed to the sheriff of Yell County, where service was had.
“Your petitioners pray this court to dismiss plaintiff’s motion and quash the writ issued thereon for want of jurisdiction.
“Wilson & Wilson,
“Solicitors for Petitioners.”
The court sustained appellee’s motion to dismiss, to which ruling of the court the appellant objected and saved its exceptions, and the case is here on appeal.
Appellee first contends that the case should be affirmed because appellant did not comply with rule IX. Appellant made a general statement of the issues, but, even if insufficient, the abstract by the appellees supplies this deficiency.
It is contended by the appellee that the Perry County Chancery Court had no jurisdiction because the defendants lived in Yell County, and were all served in Yell County, and they cite Milor v. Farrelly, 25 Ark. 353. That was a case brought in the Pulaski Circuit Court, and Milor was sheriff of Sebastian County, and the court said:
“The law under which, these proceedings were had is silent as to where the motion should be made, and as nothing can be taken by intendment, and as the general law of the State provides that suits he commenced in the county where the defendant resides or may be found, and as the remedy created is against the securities as well as the sheriff, and as only three days’ notice is required, we cannot place a construction upon the statute which would require parties living in one part of the State to appear before the circuit court of a distant county upon only three days’ notice, especially when such, a construction can only he made by supplying by intendment what the statute does not express.”
In the case of Smith v. Drake, 174 Ark. 715, 297 S. W. 817, in discussing the jurisdiction of the court, where judgment was issued on an execution in one county, and served upon the sheriff and the sureties on his bond in another county, we said: “The circuit court of Jackson County had jurisdiction in this case. There was no suit pending in any other county, and, to hold that the Jackson Circuit Court, the court out of which the execution issued, did not have jurisdiction, would be to deprive the judgment plaintiff of the. remedy given to him by statute.”
The same may be said in this case. This judgment was in the court in Perry County, and, unless the judg’ment creditor can file his motion in Perry County, where the judgment is, he would be deprived of the remedy given him by statute. We therefore hold that the court in Perry County had jurisdiction, and that it is the only court where a motion for a summary judgment against these defendants could be filed. There is no judgment in any other court.
“In most of these States, proceedings for the enforcement of the officer’s liability are of a summary character. No new or independent action need be commenced. A motion may be made in the suit in which the execution issued, and a judgment obtained therein against the officer and his sureties for the penalty prescribed by statute.” 3 Freeman on Executions, 368; Smith v. Drake, supra.
In a case referred to by the appellee, Edwards v. Jackson, 176 Ark. 107, 2 S. W. (2d) 44, the question we have before us now was not involved. That is a case where a suit was brought in Pulaski County against the sheriff of Montgomery County, his deputy, and members of his posse, and the sureties on his official bond for damages for the alleged wrongful act of the sheriff, and wilful, wanton and negligent killing of her husband, Carl Edwards, in Montgomery County, Arkansas.
It will be observed that this was an original independent suit against the sheriff and the sureties on his bond, and the statute expressly provides that suits of this character must be brought in the county where the cause of action, or some part of it, arose.
This case, as to procedure, is controlled by the case of Smith v. Drake, supra.
The court erred in sustaining the motion to quash service and in dismissing the motion.
The decree of the chancery court is reversed, and the cause remanded with directions to overrule motion of appellees, and permit them to plead, and to proceed with the trial of the case according to law, and not inconsistent with the principles herein announced. | [
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BtttleR, J.
The appellee, Henry Manee, was a negro laborer who lived in the city of West Helena and was employed as a cotton picker on the farm operated by the appellant, A1 Haraway, and a Mr. Latten, which farm was about forty miles from Helena. Haraway owned a Model A, iy2-tori Ford truck which was used to haul cotton pickers from their homes to the plantation and return. This truck was operated by a negro, Granville Shields, who was hired by Haraway to secure cotton pickers, telling them how much they would receive for their work and transporting them to and from the plantation.
On the morning of the 4th of January, 1932, Shields secured about thirty cotton pickers in West Helena, among whom was the appellee, and conveyed them from West Helena to the plantation, where all engaged in picking cotton until about three or four o’clock in the afternoon, when it began to rain. Mr. Fatten, whose business it was to weigh and pay for the cotton picked, paid the' appellee and the others for the cotton picked that day. and Shields then loaded them into the truck and started on the return journey. On the way there was a collision between the truck driven by Shields and a truck driven by one Harvey Wallace, belonging to and engaged in the business of the Grear Trucking Company, which truck was coming in the'opposite direction from that in which the truck driven by Shields was traveling. The appellee was severely injured, and brought suit against both Wallace, the driver of the G-rear truck, and the appellant.
The appellee alleged negligence on the part of the drivers of both trucks as the proximate cause of the injury he received. The trial resulted in a verdict and judgment in favor of the appellee against both defendants, from which judgment is this appeal.
For reversal, it is urged that the trial court erred in refusing to direct a verdict for the defendant, Hara-way, the grounds for the alleged error being, first, that the appellee and the truck driver employed by the appellant were fellow-servants; second, that the undisputed facts disclosed by the evidence established contributory negligence on the part of the appellee; and, third, that there was no substantial testimony tending to show any negligence on the part of Shields, the driver of the appellant’s truck.
1. The appellant insists that the facts in the instant case bring.it within the rule announced in St. Louis, A. & T. Ry. Co. v. Triplett, 54 Ark. 289, 15 S. W. 831, 16 S. W. 266, and’ therefore there was no responsibility on the part of the appellant for injuries inflicted upon the appellee for the reason that, if there was any negligence on the part of the driver, it was the act of a fellow-servant. The fellow-servant doctrine has been abrogated by statute as to corporations, but still obtains where the employer is an individual or a partnership such as in the case at bar. The important question, is whether Shields was the fellow-servant of the appellee. If so, there could be no recovery against the employer for his negligent act. This is well settled by the decisions of this court which, at an early date, recognized the fellow-servant doctrine in the case of Fones v. Phillips, 39 Ark. 17, 43 Am. Rep. 264, which has been followed and approved in all subsequent cases.
It is not easy to lay down a well-defined rule as to who are and who are not fellow-servants, so that it may be universally applicable. The ordinary definition of fellow-servant is that those engaged under the control of the same master, in the same common business, the purpose of which is to accomplish a single result, are deemed to be fellow-servants, and negligence of one fellow-servant resulting in injury to another fellow-servant will not render the master liable; but, as is said in Ry. Co. v. Triplett, supra, at page 294: “When we undertake to determine what is essential to render the service common to all, we find the cases numerous and contradictory.” It therefore seems that the tests approximately applicable to all cases can be found only in the reason in which the rule itself is based, which is that one who voluntarily engages in the service of another presumably assumes all the risks ordinarily incident to that service, including that of the negligent acts of those who are his fellows while they are engaged in the prosecution of a common purpose, which negligent acts are not the result of some breach of duty which the master primarily and personally owes to the servant. In regard to the last-mentioned duty, we find also, as in determining who are fellow-servants, no rule which will cover all classes of cases and he of universal application. The generalization which most nearly approaches to it is quoted with approval in Fones v. Phillips, supra, as follows: “Whenever a master delegates to another the performance of a duty to his servants, which the master has impliedly contracted to perform in person, or which rests upon him as an absolute duty, he is liable for the manner in which that duty is performed by the middleman whom he has selected as his agent, and, to the extent of the discharge of these duties by the middleman, he stands in the place of the master; but, as to all other matters, he is a merel co-servant, and the question is not whether the master reserved oversight and discretion to himself, but whether he did in fact clothe the middleman with power to perform his duties to the servant injured.” Wood on Master & Servant, p.. 860. This rule was approved by the court in the following language: “This seems to us to embrace all the conditions under which, by the current and superior weight of authority, the master has been held liable for the acts of negligence of one employee, by which another has been injured.”
In order to determine the question, we must therefore examine the relation which the evidence showed Shields sustained to the master and to the appellee. On this phase of the case there is no conflict. Shields testified that he was' employed by the appellant, Haraway, to drive the truck and transport cotton pickers to and from the plantation; that he would go out in the morning and get a load of people, none of whom he knew by name, and getting different ones each morning; that he would tell those he met that they would receive fifty cents per hundred for picking cotton, and be taken to and from the plantation; that these were all his duties, for which he was paid $1.50 per day by Mr. .Haraway, the owner of the truck and the man who had hired him. Appellee testified that he lived in West Helena, and that every morning Shields was out “hollering for cotton pickers”; that witness asked him what he was paying, and Shields said, “Fifty cents a hundred and carry you there and bring you hack.”
The testimony of Manee and Shields regarding the duties of the latter was not disputed, and these facts, it is insisted by the appellant, make the fellow-servant doctrine applicable to this case, and that to hold otherwise would call for the abrogation or modification of the rule announced in Ry. Co. v. Triplett, supra, and in Walsh v. Eubanks, 183 Ark. 34, 34 S. W. (2d) 762; Williamson & Williams v. Gates, Ib. 579, 37 S. W. (2d) 88, and Parham v. Parker, Ib. 674, 37 S. W. (2d) 879. To further sustain this contention, reliance is had on the case of St. L. S. W. Ry. Co. v. Henson, 61 Ark. 302, 32 S. W. 1079. We do not think, however, that the proved facts in the case at bar bring it within the fellow-servant doctrine;-but rather establish a state of case where a duty which the master has impliedly contracted to perform in person is performed by another under authority from the master for whose negligent act the master is liable as if he were present personally and himself breached the duty. In all the cases cited from our court and relied upon by the appellant, there is a marked distinction between them and the instant case. In St. L. S. W. Ry. Co. v. Henson, supra, the plaintiff was employed by the railroad company in the bridge-building department, and the servant who injured him was an engineer in the transportation department. Plaintiff was furnished a boxcar for his use while engaged in the discharge of his duties, which car was hauled from place to place on the defendant’s line whenever necessary. The car, while thus being hauled, was derailed, and the plaintiff injured and a part of his g-oods destroyed, the immediate result of the negligence of an engineer on another train which occasioned a head-on collision. The court held that the fact that the employees belonged to separate departments was of no consequence other then tending to show whether or not the injury complained of was a risk ordinarily incident to the ser vice undertaken. After discussing the relative duties of the two employees, the court concluded as follows: ‘1 There was nothing of the master’s duty in the work of running the engine. The doctrine announced by this court in Railway Co. v. Triplett, 54 Ark. 289, [16 S. W. 266, 11 L. R. A. 773], applied to the facts of this record, determines the relation of the plaintiff and the defaulting engineer as that of fellow-servants.”
In Walsh v. Eubanks, supra, the negligent employee, who was held to he a fellow-servant of the one injured, was a common laborer and engaged in performing such duties as he was bidden at whatever place necessary to carry into effect the common purpose for which they were both employed and in which they were both engaged. A part of his duty was to drive a truck to haul material to be used in the work, and, at the time of the injury, he and the employee injured, with other employees, were going from the place of work in a truck driven by him, to unload a car of cement to be used in the construction of the work.
In Parham v. Parker, supra,, it was shown that Parker was employed by Parham and was injured while attempting to board a moving truck in which he and other employees were riding. There was a conflict in the testimony as to who employed the driver and whether he bore any relationship to Parham. The point decided in that case, as stated in the opinion, was that there was “no evidence that the master was guilty of any negligence in any respect,” and “this injury occurred.when the appellee attempted to get back on the truck while it was moving, and his foot was caught in the wire, causing it to be run over by the truck. It was an unfortunate accident for which no one was liable.” The reference in that case regarding- liability of a servant injured by the negligent act of a fellow-servant is dictum.
In Williamson & Williams v. Cates, supra, the contention was that one Mitchell was for the time being the foreman of the injured employee under whose direction he was working and for whose negligence the master was liable. The evidence, however, on that contention was merely that Mitchell showed his fellow-servant the place where they were to work and informed him of the character of the work to be done, which was to cut down bushes. Mitchell did not show his fellow how to' cut the bushes, and the injury .which resulted was not because of failure of duty on the part of Mitchell as the representative of the master, but the negligence, if any, was the failure of Mitchell to use ordinary care in cutting the bushes at the same time and place with such fellow in which work they were merely fellow-servants.
In the instant case, when the master undertook to transport the laborers from their homes to his plantation and to return them when the day’s work was done, there rested upon him the duty imposed by law to exercise ordinary care for their protection, and, while they were not passengers within the common meaning of the term, this duty still remained, and for the breach of such duty he was responsible. St. L. I. M. & S. Ry. Co. v. Harman, 85 Ark. 503, 109 S. W. 295; St. L. I. M. & S. Ry. Co. v. Wiggam, 98 Ark. 259, 135 S. W. 889; Oak Leaf Oil Mill Co. v. Smith, Ib. 34, 135 S. W. 333. The discharge of this duty was intrusted to Granville Shields, who not only acted as the agent of the appellant in the transportation of the laborers, but in the employment of the cotton pickers, and his default was that of the master. Bloyd v. Ry. Co., 58 Ark. 66, 22 S. W. 1089; Bryant Lbr. Co. v. Stastney, 87 Ark. 321, 112 S W. 740; Archer-Foster Const. Co. v. Vaughan, 79 Ark. 20, 94 S. W. 717; Western C. & M. Co. v. Buchanan, 82 Ark. 499, 106 S. W. 694; Headline v, G. N. Ry. Co., 113 Minn. 74.
In every case in which the facts are clearly established and show precisely what were the respective duties of the injured and delinquent employees and what relation they bore to each other and to the master, it is for the court to say whether or not the negligent employee was a vice-principal or a fellow-servant, and, as such is the state of case in the record before us, the court did not err in declining to declare the law to he that Shields was the fellow-servant of the appellee.
It will be remembered that the plantation was some forty miles from the home of the appellee, and that,, late in the afternoon of a rainy day early in January, 1932, Shields started from the plantation on his return journey to West Helena with a load of cotton pickers. After he had proceeded approximately half of the distance his truck was overturned and badly damaged on account of some happening, the particulars of which the testimony does not disclose. The truck was righted by the driver assisted by the passengers. The sides and top of the truck had been broken, and the debris was piled on the floor of the truck. Into this thirty negro laborers loaded and disposed themselves as best they could. As stated, this was a Model A, 1%-ton truck, and it is apparent that it was overloaded by actual weight, for these thirty negroes must have weighed approximately 1,000 pounds beyond the capacity of the truck. It is reasonable that it must have been difficult for them to find room in the truck even before the wreck and before the broken top and sides of the truck had been piled upon the floor of the same. The evidence shows that some of the laborers were sitting with their feet hanging off the end, some were standing, and others disposed themselves about in various positions. The defendant, with several others, took a place on the left edge of the truck with their legs hanging down on the outside. It is because he took this place and remained in this position as he continued the journey and until he was hurt, that appellant contends he was guilty as a matter of law of contributory negligence.
In considering this contention, it must be borne in mind that it seems to have been reasonably necessary for some of those on the truck to ride in this manner and through no fault of theirs. In the first place, it is clear that more persons were invited by appellant’s agent to ride on the truck than it could accommodate, and, secondly, the overturning of the truck and the placing of the wreckage on its floor aggravated the situation and made it still more inconvenient for the laborers to ride upon it. It seems that it was: a choice of two evils which appellee and his companions had to make; either ride on in the place and manner, which as subsequently proved was fraught with danger, or be left on the roadside, far from home, on an inclement winter night to pursue their homeward journey as best they might. Appellee’s choice proved disastrous to him, but under the circumstances created through no fault of his, and, in part at least, by appellant’s agent, can it be said that all reasonable minds would agree, that no ordinarily prudent person, situated as was appellee, would have acted as he did? As we view the evidence, we are of the opinion that the court below rightly left that question for the jury to answer.
It is contended, in the last place, that the testimony is insufficient to establish any negligence on the part of Shields in the operation of the truck. On this question the evidence is in direct conflict. That on the part of the appellant tends to show that Shields was traveling on his side of the road, and, as he approached the truck of the Orear Company, he swerved still further to the right until his right-hand wheels were off the pavement and on the shoulder of the highway, and that, while in this position, the truck of the Grear Company swung to the wrong side of the road causing the injury to the appellee. All of this is strongly disputed by the driver of the Grear Company truck, and his testimony is corroborated by that of other witnesses to the effect that it was the Grear truck which was being driven on the proper side of the road, and that it was the improper driving of the truck of the appellant which caused the injury. There is other testimony which we think sustains the finding of the jury that they were both negligent, and that this concurring negligence was the proximate cause of the injury.
These were all questions for the jury, which, under well-settled rules, is the sole judge of the credibility of witnesses and the weight to be given their testimony, and, since there was some substantial evidence to justify the verdict, it must stand.
It follows that the judgment of the trial court is correct, and it is therefore affirmed. | [
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Hughes, J.,
(after stating the facts.) We find no provision in our statute authorizing the county to refund the purchase money of lands sold by the state, the title to whieh has failed by reason of the fact that the land was forfeited to the state upon an assessment of it for taxation whieh was void. Sections 6700, 6701, Sand. & H. Dig., do not apply to this case. The state did not warrant the title, and gave only a quitclaim deed to The land. Section 4569, San dels & Hill’s Digest, same as section 4246 Mansfield’s Digest, referred to in the ease of Scott v. Mills, 49 Ark. 275.
Under a quitclaim deed a grantee cannot recover the purchase money, upon failure of title. 3 Kerr on Real Property, p. 322. It is sometimes thought that in such case the grantee has or should have strong equities to have his purchase mon-ry money refunded. While this may be so, there is no provision of law allowing it. Counties have been said to be “quasi corporations possessing no power and incurring no obligations save those especially conferred or imposed by statute.” Granger v. Pulaski County, 26 Ark. 39.
The judgment of the circuit court is reversed, and the action is dismissed. | [
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Bunn, C. J.
This is a suit for damages for injury suffered by plaintiff, by reason of the rough and uncouth conduct of one of the street car conductors of defendant, and manifest indifference to her rights, exhibited by him towards her while a passenger on his car some time in June, 1897. Damages laid at $5,000. Trial by jury, and verdict for $200, and defendant appealed.
The evidence shows that plaintiff boarded one of the street cars of defendant at Fifth and Main streets, intending to go on Main and West Markham to Cross street; and the plaintiff’s evidence showed that on boarding the car she asked the conductor if that car went to West Markham, or was for West Markham, and, being answered in the affirmative by him, she paid her fare, but that, on arriving at Markham street and turning the corner, the car was stopped in front of the Metropolitan Hotel, when and where the conductor informed her that his car would go no further, but that an approaching car indicated to her by him would take her on West Markham. It does not appear that anything else was said by the conductor or by the plaintiff, and the latter got off the first car and stood on the street or side walk in front of the Metropolitan Hotel until that car moved back out of the way, and the second car ;moved up and took its place, when plaintiff boarded that one; 'and it proceeded on West Markham until, somewhere between Center and Spring, the conductor came around and demanded his fare of plaintiff, who refused to pay the same, informing him that she had paid her fare on the car from which she had alighted as stated. He informed her that she would have to pay or get off, and after some other words he informed her that he would see that she was put off if she would not pay her fare,- and, this being refused, he ran the car back to police headquarters, and called to his assistance a policeman; but nothing was done by the latter, as the chief of police appeared on the scene at this time, and asked the plaintiff what was the matter, and, on being informed by her, he paid the plaintiff’s fare to the conductor, and the plaintiff and conductor boarded the car and proceeded on their way without further trouble. The conductor on the first car testified that he had no conversation with plaintiff as to the running of his car, except at the intersection of Main and Markham as detailed by plaintiff. The conductor on the second car denies all rudeness of conduct toward the plaintiff, and that he did anything more than he was required to do in a case where a passenger refused to pay fare or present a transfer ticket. The plaintiff’s evidence tends to show that a considerable crowd had gathered at police headquarters, and that she was thus made the object of their gaze and attention, to her great humiliation. Nothing very definite is shown as to the numbers so collected together, and nothing as to their conduct. Plaintiff herself testifies that the conductor on this second car almost disputed her word, but in what connection or in what respect she fails to state. There is much other evidence, but this is all that is necessary to rehearse at this juncture at least.
The court gave on its own motion Several general instructions of the usual and merely formal kind, and at the instance of the plaintiff, the following, numbered 1, to-wit: “If you believe from the evidence that it was the rule or custom of the company to require a transfer ticket at the point at which plaintiff made the change, but you should further find that her entering the car without procuring a transfer ticket was the result of the negligent conduct of the conductor of the first car, and that the plaintiff, as a reasonably prudent person, had a right, under the circumstances, to assume from the condnc and statements of the first conductor that she would be carried on West Markham without such transfer ticket or further payment of fare, then she was entitled to be carried by the second ear without further payment of fare.”
The defendant asked nine several instructions based on its evidence and in support of this theory of the case, only one of which (the fourth, as to punitive damages) was given by the court. The others were refused, but afterwards the seventh and ninth were modified by the court, and then given as modified. They are as follows, with the modifications expressed in italics, and the other portions embodying what was asked by the defendant, to-wit: “7. The regulation of the defendant company that persons transferred from one car to another can ride upon the second car without paying fare only upon the production of a transfer check from the conductor of the first ear is a reasonable, valid and binding regulation; and if the plaintiff knew of it, and transferred from one car to another without asking the conductor for a transfer check, and without his telling her none was necessary, she cannot recover, unless she teas induced to do so by the conduct and statements of the conductor oj the first car.” The testimony of H. G. Fleming, which wtis substantially uncontradieted, was to the effect that he had been manager of defendant’s street car service since 1893, aud was well acquainted with its rules and regulations, and that “a conductor is not authorized to pass a passenger from another ear without the production of such ticket, except in case of emergency, such as a break down or something of that kind. If a car was running extra from Fifteenth street to Main and Markham, and a passenger on it wished to go out West Markham [such was the case in this instance], the conductor on the latter car has no authority to pass him except on a transfer ticket.” “If any person, having paid on one car, wishes to ride on another without paying a second fare, he must ask and get a transfer ticket.” He also stated that these rules and regulations were kept posted in all the cars for a long time, and they were so posted at Ninth and Main up to the time of testifying. The plaintiff herself testified that she was well acquainted with and knew the rules as to transfers; that she knew that when she went from one car to another she had .to pay or have a transfer; that there was a notice in the cars, stating that persons wanting to transfer must ask the conductor for a transfer check. There was ample evidence to sustain the instruction as asked, and the defendant was entitled to it, without the modification, as presenting its ease or its side of the case. The same may be said of the ninth instruction, which is as follows: “9. The court instructs the jury that if, by the custom or regulation of the defendant company, passengers paying on one car could ride on another one by presenting upon the second car a transfer check procured from the first, and the plaintiff failed to procure such transfer check and present it on the car to which she transferred, then she was not entitled to ride on the car to which she transferred, without the payment of fare. The conductor was not authorized to allow her to ride on his car without the payment of fare or the presentation of such transfer check, and the company would not be liable unless the jury should find that her entering the car ivas the result of the conduct of the conductor on the Main street car, and further find that she, as a usually prudent and business person, had a right to suppose from the conduct and statement of the first car conductor that she vvould be carried on West Marleham ivithout such transfer tichet or further payment of fare.” The modification changes the issue from that made in the complaint and answer, from mistreatment on the part of the conductor on the second car, as charged in the complaint, to a charge against the conductor of the first car to the effect that he had in some way produced or been the cause of the alleged injury to plaintiff on the second car. There is no evidence to support that theory. What was said by the conductor of the first car to the plaintiff before his car reached Markham street, according to her testimony, had reference solely to the running of his ear, and not transfers. What he said to her after his car reached Markham was a simple statement that his ear went no further, and that the approaching car would take her on West Markham. Neither plaintiff nor the first conductor seems to have given any thought to the subject of transfer, or of procuring a transfer ticket. Which of the two should have taken the initiative in regard to the transfer ticket is a matter of dispute between the plaintiff and defendant, and can only be settled by the evidence and instructions thereon. The court gave the plaintiff an instruction on her evidence and theory of the case, but refused to give any instruction to the defendant presenting its side of the controversy, and upon its evidence as to that part.
The instructions, as given, were confusing. The only conduct or statement of the first car conductor made to plaintiff, upon which she claims she had a right to rely in going from one to the other, and to ride thereon without payment of additional fare, was a misstatement merely as to the running of his car_ If it is sought to make the statements of the first car conductor serve the place of representations which would justify the plaintiff in refusing to present a transfer ticket or pay fare on the second car, as seems to be the effort in this connection, it cannot be permitted, for the plaintiff ought not to rely on representations of the servant which she knew were in contravention of the rules and regulations of the company on the subject.
To try the issue made by the complaint and answer, the simple inquiry was whether or not plaintiff had a right under the circumstances to refuse to pay her fare or present a transfer ticket to the conductor of the second car. If she had such a right, that ends the case for her, leaving only an assessment of damages to be had on the evidence in relation thereto. If she had not such right, then the case is ended against her. That was purely a question of fact. The court gave plaintiff’s instruction on her theory and evidence of the case, and should have given the defendant’s instruction on its theory, without the modifications, and, failing to do so, its judgment is reversed, and the cause remanded for a new trial. | [
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Butler, J.
Action on an alleged oral contract of insurance ; trial and judgment in court below for the plaintiff.
Among the errors assigned and argued here by the appellant is that the trial court erred in refusing to grant its motion for a directed verdict in its favor. The reasons assigned are: (1) The agent, who it is claimed made the oral contract, was merely a “soliciting1 agent” and there was no competent substantial evidence that he had apparent authority to hind the appellant by his alleged act; (2) there was no premium paid and no consideration for the contract; and (3) that by the express agreement of plaintiff, if any valid agreement had been made, it ceased to exist before the date of the injury -for which liability is claimed.
The trial court submitted to the jury the question of the agent’s apparent authority by instructions which are correct if based upon substantial evidence. We discover no essential conflict in the testimony, and as to all the material facts it may be said that the evidence is undisputed.
One Collins was the agent of the appellant to solicit and obtain applications from railway employees for insurance against accident and sickness and to transmit such to the appellant’s home office for its acceptance or rejection. This was the extent of his authority, and in the face of the application he was designated as a “soliciting agent” in this way; at the head of the application was a statement that the blanks were to be filled in and signed by “the soliciting agent,” and in the blank left for the signature appeared the name of Collins.
On September 8, 1931, Collins solicited and obtained the signature of the appellee, who at that time was a railroad employee,'to an application for insurance and told him that the insurance would be effective and begin on that date. The application was received at the home office of the appellant on September 14, 1931, and after some investigation it declined to issue its policy, but wrote Collins on September 18, following that waiver of claim for a certain ailment which it knew appellee at one time suffered be obtained, and stated that, upon the receipt of the signed waiver, “the matter of the policy issue will have our. further attention.”
In the meantime (September 10th) appellee had been “laid off” by the railroad company and while working at Ms home had suffered an injury (September 18th) to his leg which caused him to enter a hospital for treatment some days later, where he was when Collins got appellant’s letter. This letter and the unsigned waiver he returned with the notation “applicant is now in the hospital with an injured leg. ’ ’ After receipt of the unsigned waiver and the information relating to appellee’s condition no further action was taken and no premium was demanded or received. In this connection it may be stated that accompanying the application was a written instrument signed by the appellee to his employer directing it to pay out of appellee’s wages the monthly premiums as they became due. The first premium payment was to be deducted out of his October wages. In this order the following stipulation was made: “I understand and agree as to the duration of my said insurance: (1) that after my policy takes effect the payment of each installment of premium shall continue it in force as stated in “Period Schedule” appearing below, all such periods to be computed successively from the date of the policy; (2) that the failure to pay any installment of premium for- any reason whatsoever shall terminate my said policy as of the expiration of the period from the wages of which such installment was to have been paid, except as it may be continued in force by reason of premium previously paid; (3) that if I shall cease to be in the service of the employer to whom this order is directed, this insurance shall terminate at once without notice, except as it may be continued in force by reason of premium previously paid.”
On September 29 appellee made proof of his disability and demand for the disability benefit. It appears that at a prior time appellee had a policy with appellant company under which he had received payment for disability benefits, but which afterwards he had allowed to forfeit for failure to pay the monthly premiums. Replying to appellee’s demand, appellant called attention to this fact and advised him that there was no insurance outstanding. Appellee wrote in reply that he was not claim ing on that policy but on “a new contract” made by Collins, its agent, on September 8th.
In support of his contention, appellee argues (a) that in the correspondence last above mentioned there was an effort to deceive and an indication that Collins had authority to make the agreement that insurance should be in force on and after September 8, and as a further indication of this it is argued that a previous policy bore the same date as the application. These further proved facts are urged as evidence that in making the agreement Collins was acting within the apparent scope of his authority, namely, (b) that in settlement of a previous claim he had received from Collins a draft drawn on appellant for the amount of the claim less a due premium; (c) that he knew what authority Collins had from what he said, and that while in the hospital he had been told by Collins that the insurance was in effect; (d) that the order on the railway company for deduction from wages for insurance premiums had been retained by appellant; (e) that while in the hospital he had been given by Collins the form for his preliminary notice of disability; and (f) principally, that the form of the requisition of appellant to the Commissioner of Insurance of the State of Arkansas and the latter’s license issued thereon was sufficient to submit to the jury the question of the apparent authority of Collins to contract for and bind the appellant by the act in question.
Giving to these facts their greatest weight and indulging in every legitimate inference reasonably deducible from them we cannot see anything which would fairly sustain appellee’s view.
(A) For the sake of brevity we refrain from setting out the correspondence relative to the present demand of the appellee as we cannot see how any fair interpretation of this correspondence can be construed as an effort on the part of the appellant to deceive him, or how it could have deterred him from asserting whatever rights he might have had, as it has developed he was in possession of the knowledge of all the facts known by the appellant and of others of which at the time appellant did not know, and conld not he expected to have known.
(B) That in the consummation of a previous transaction Collins had drawn a draft upon the appellant for the sum due, as agreed upon by the insurer and the insured, appears to us to have in it no element which would lead a reasonable person to believe that he had authority to do any act which bore no relation to this transaction. Neither could the fact that a previous policy bore the same date as the previous application indicate that in a subsequent transaction Collins would have the authority to make an oral agreement that the insurance should be in force from the date of that application.
(C) What Collins might have said to the appellee regarding the extent of his agency and the binding force of his verbal agreement is unavailing to the appellee, and the evidence of it incompetent under the well-known rule that the extent and nature of an agent’s authority to act for and bind the principal cannot be proved by his declaration made in the absence of the party to be affected by them. Turner v. Huff, 46 Ark. 222; Dennis v. Young, 85 Ark. 252, 107 S. W. 994.
(D) The order given on the railway company for deduction from wages for insurance premiums was valuable only if and when the policy was written, and, as the application was not accepted, it would be immaterial what became of it and its disposition would have no evidentiary value.
(E) While appellee was in the hospital, he requested Collins to procure for him the form for giving his “preliminary notice.” This Collins did — how or where he obtained it was not shown, but however it was obtained there is no showing that, prior to the date of the oral contract or at the time of it, Collins had these forms in his possession, or, if so, that appellee knew of it. Whatever was done after the application could not have influenced the action and belief of the parties at or before the time.
(F) Appellee relies principally on the requisitions for and license issued to Collins as evidence warranting the submission to the jury of the question of Collins’ apparent authority. The requisition and the license are as follows: “This is to certify that the Continental Casualty Company of Hammond, Indiana, has appointed Paul Collins of Little Rock, Arkansas, agent for the transaction of its authorized business of insurance in the State of Arkansas for the term ending March 1, 1932.”
“Whereas, the Continental Casualty Company of Hammond, Indiana, is authorized until March 1, 1932, to transact the business of insurance in this State in accordance with license issued to said company,
“Therefore, I, the undersigned, Commissioner of Insurance of the State of Arkansas, in pursuance of instructions received from said company, do hereby license Paul Collins of Little Rock, Arkansas, as the agent of said company in the conduct of its authorized business in this State, untl March 1, 1932, unless his appointment as such be sooner revoked or otherwise terminated.”
These were on forms which were not the work of the appellant, but which were prepared in compliance with §§ 6060 and 6062 of subdivision 5 of chapter 98 of Crawford & Moses’ Digest, under the title “Insurance,” which the insurance companies were required to use. These statutes recognize that there are different classes of agents representing insurance companies, and require that they be regarded as agents of such and render ineffective any provision in the applications or policies to the contrary and are as follows:
“Section 6060. No person shall act as agent or solicitor in this State of any insurance company of another State or foreign government, in any manner whatever relating to risks, until the provisions of this act have been complied with on the part of the company or association, and there has been granted to said company *or association, by the Insurance Commissioner, a certificate of authority showing that the company or association is authorized to transact business in this .State.”
“Section 6062: Companies to which certificates of authority are issued, as provided by § 6060, shall from time to time certify to tlie Insurance Commissioner and State Fire Marshal the names of .the agents appointed by them to solicit risks, issue policies or receive applications in this State; and no such agent shall transact business until he has.procured from the Insurance Commissioner and State Fire Marshal a certificate showing that the company has complied with the requirements of this act, and that the person named in said certificate has been duly appointed its agent.”
Since the requisition and license were not prepared by the appellant company but by the Insurance Commissioner and are based on the above statutes, they can have no greater or other effect than the statute itself. It seems settled that statutes such as those quoted supra are not intended to, and do not, have any effect upon the agent’s powers to bind the principal, nor do they change the general laws of agency, the powers of an agent being and remaining those only which his principal has expressly or impliedly conferred upon him, to be determined by the applicable principles of the common law relating to principal and agent. Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613, 36 S. Ct. 676; Sun Ins. Co. v. Scott, 284 U. S. 177, 52 S. Ct. 72; Eikelberger v. Ins. Co. of N. A., (1920) 107 Kan. 9, 190 Pac. 611; Md. Gas. Co. v. Seay, 56 Fed. (2d) 322; Wood v. Fireman’s Fire Ins. Co., 126 Mass. 316.
Counsel for appellee appear to concede the correctness of the rule stated, but argue that the form and language of the requisition and license extend the real or apparent scope of authority so as to bind the principal for all of the agent’s acts, or at least raise the question of fact to be determined by the jury from the language used. The case of Mass. Bond & Ins. Co. v. Vance, 74 Okla. 261, 180 Pac. 693, 15 A. L. R., page 981, is cited as sustaining this contention. In that case the requisition of the appellant company on the Insurance Commission for agent’s license is the one point of similarity of it with the case at bar, and whether or not the applicant knew of it or was acquainted with its language before or at the time his application for insurance was made is not dis closed. There, the applicant, a traveling salesman, who habitually carried accident insurance, remembering that his policy was about to expire, was directed to one Evans as an insurance agent and had an interview with him in the office and in the presence of the company’s district manager. He told Evans that, unless the insurance would take effect at once, he did not want it. Evans, in the presence of the district manager, assured him that the insurance would take effect immediately, and the application was accordingly signed and a part of the first premium then and there paid and the remainder taken the next morning to the office of the district manager where it was paid to a person in charge of the office who delivered to the applicant the agent’s receipt prepared by him and left in the office the preceding evening. There was a delay in the acceptance by the company of the application and of the issuance of the policy and in the interval an injury occurred. Liability was denied, but the premium was retained, and no offer made to return it until after suit was filed and just before the trial. On this evidence a recovery was allowed, and in the course of the opinion upholding the judgment of the court below appears language which indicates that the submission to the jury of the case would have been warranted on said requisition alone. Were we disposed to follow all the implication contained in that opinion in a similar state of case, we do not in the case at bar, if for no other reason, because of the difference in the facts.
In order for any conduct of a principal with respect to the agent, or of the agent, known or which ought to have 'been known to the principal, to bind the former for the latter’s act as done within the apparent scope of the agent’s powers, such conduct must have been of that character as would justify the reasonable belief of the agent’s authority, and that those dealing with the agent knew of the conduct of the principal or of the agent and relied upon it. The rule is thus stated at page 574, § 213, 2 C. J.: “It is essential to the application of the above general rule (as to apparent authority) that two important facts be clearly established: (1) that tbei principal held tbe agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as haying such authority ; and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority.”
The application of this doctrine to the facts in the instant case makes the form of the requisition and license unavailing to the appellee, for according to his own admission he had no knowledge of the existence of either until after this controversy arose, and therefore could not have been influenced by them in judging what was the apparent scope of the agent’s authority.
On an examination of Gibson v. Continental Casualty Co., 178 Ark. 1091, 13 S. W. (2d) 621, the principal case from this court relied upon by the appellee, it will be seen that the act from which the agent’s power was determined. was performed in the course of the taking of the application. This was the filling in of blank forms furnished by the principal to the agent for that purpose, one of the blank lines being for the date the policy was to become effective. In New Hampshire Fire Ins. Co. v. Walker, 178 Ark. 319, 11 S. W. (2d) 772, it was held that the fact that an agent of a fire insurance company had authority to write insurance and issue policies at one place was not sufficient to warrant the submission of the apparent authority of that agent to write insurance in another territory and bind his company by an oral contract for insurance.
In Gibson v. Continental Casualty Co., supra, the court, in differentiating that case from the case of New Hampshire Fire Ins. Co. v. Walker, supra, said: “There is no- testimony in the instant case that disputes the authority of the agent Henderson to fill the blank, thereby stating the date when the accident policy became effective. We have already said that this action on the part of the agent was within the apparent scope of his author ity. Of course, if be bad no right to make this, and bad not bad tbe blanks for tbe purpose of filling them up, or if tbe undisputed proof showed that be bad no authority to fill tbe blanks or to make tbe contract, then, of course, it would be controlled by tbe case of New Hampshire Fire Ins. Co. v. Walker, supra.”
In tbe case at bar, as already observed, tbe proof is uncontradicted that Collins bad no actual authority to make tbe oral contract and performed no act before tbe application from which bis authority might be inferred as was tbe fact in tbe Gribson case.
In addition iit may be said, if a valid contract bad been made with railroad employees, such as was tbe applicant, it could continue only so long as did the employment. This was tbe express agreement of tbe appel-lee which; has already been quoted.
Appellee ceased to work for thé railroad two days after tbe application was signed and before the injury was received, and drew all bis wages before tbe insurance company could have collected any premiums. Hence, in any view of tbe case, there was no valid existing contract, and tbe court should have directed a verdict for tbe appellant as requested by it.
Tbe judgment is therefore reversed, and, as the case appears to have been fully developed, it is hereby dismissed. | [
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Smith, J.
Pulaski County entered into a contract for the construction of a county road with appellants, under which contract there was due the sum of $13,229.51. A claim therefor against the county was disallowed by the county court on August 31,1931, for the reason that there were no county funds available for its payment. The circuit court so found upon an appeal from the disallowance order by the county court, and the judgment of the circuit court, from which is this appeal, recites that the claim was disallowed for the reason that the condition of the county’s finances would not permit its payment, under amendment to the Constitution, No. 10, 184 Ark., page xxix.
The provisions of this amendment No. 10 have been construed so frequently and so recently that it must now be treated as definitely settled that it is not within the power of a county court to allow any claim against the county, however just and meritorious it may be, when, by such allowance, the total revenue for the current fiscal year, from all sources, will be exceeded. Pulaski County v. Board of Trustees, ante p. 61.
Tbe case of Burke v. Gulledge, 184 Ark. 366, 42 S. W. (2d) 397, arose under very similar facts. In that case allowances were made against Phillips County on account of tbe construction cost of certain rural roads, in payment of wbicb warrants were drawn on tbe “Special County Road Tax Fund.” At tbe time tbe allowances were made, tbe county’s expenditures bad exceeded its revenues for tbe then current year. Tbe “Special County Road Tax Fund,” against wbicb tbe warrants were drawn, was composed of revenues derived from several sources, tbe tbree-mill road tax being a part thereof, as was also tbe county’s proportionate part of tbe “State Turnback Money,” wbicb last-named fund was derived by tbe county under tbe appropriations made pursuant to act 63 of tbe Acts of 1931 (Acts 1931, page 171). It was held, in this Burke case, supra, that the allowance of“ a claim against a county was void when, by such allowance, tbe total revenues for tbe current fiscal year, from all sources, were exceeded, and tbe judgment of tbe circuit court directing tbe payment of such a claim against tbe county was reversed.
It was pointed out, however, in tbe Burke case, supra, that it bad been held in tbe case of Anderson v. American State Bank, 178 Ark. 652, 11 S. W. (2d) 444, that amendment No. 10 did not apply to funds paid over to tbe counties by tbe State pursuant to tbe act 63 of tbe Acts of 1931, as that fund was not county revenue within tbe meaning of tbe amendment. It was therefore held, in the Burke case, supra, that, while tbe demands there involved could not be allowed against tbe county and paid out of county funds, it might be allowed and paid out of tbe county turnback money derived under tbe act of 1931, as a gratuity from tbe State.
Tbe present appeal may be disposed of, however, by bolding, as we do bold, that tbe claim against tbe county was properly disallowed by reason of the inhibition of amendment No. 10, above recited.
The judgment of the court below must therefore be affirmed, and it is so ordered. | [
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Btjtleb, J.
On May 5, I960, Dr. Charles S. Holt entered into a contract with the duly authorized agent of the appellees for the purchase of a lot with the building situated thereon in the city of Fort Smith, for the sum of $35,000. The property was incumbered by a mortgage which the purchaser was to assume, the balance of the purchase price to be paid in cash with a deposit made at the time of the execution of the contract of $1,000' with Eugene Henderson, agent of the sellers, which sum was to be held by him until the consummation of the sale or to be returned if tbe sellers failed to carry out the contract. In the contract was the following stipulation: “Seller to furnish a warranty deed and abstract showing good merchantable title and property free of incumbrances except as above specified. Purchaser’s attorney shall have at least ten days in which to examine the title prior to closing.” The abstract of title was promptly furnished by the sellers, which was examined by the attorney of the purchaser within the ten days, who gave it as his opinion that the title was defective. After conferring with another attorney who advised that the opinion of the examining attorney should be accepted, the purchaser immediately notified the agent of the sellers that he would not take the property and complete the purchase. Suit was instituted by the sellers in the chancery court in order to remove the objections made by the attorney who examined the title. This suit proceeded to judgment, after which the attorney pronounced the title good, and, the purchaser still continuing to refuse to complete the purchase, an action was instituted against him for specific performance of his contract.
Several questions were raised in the court below which are argued here, but which we think it unnecessary to consider because it is our opinion that the title tendered by the sellers was a merchantable one, and that the decree for specific performance is correct, regardless of the grounds upon which the chancellor based his conclusion. There is a unanimity of opinion as to what constitutes a merchantable title, but courts having that question before them have given various definitions of what is deemed to be such. In all of these, however, in the final analysis a merchantable title is held to be one which imports such ownership as enables and insures to the owner the peaceable control and use of the property as against every one else. It imports something more than a title which might ultimately prove impervious to assault. This court has approved the following definition of a merchantable title: “A marketable title is one that is free from reasonable doubt. There is reasonable doubt when there is uncertainty as to some defects appearing in the course of its deduction, and the doubt must he such as affects the value of the land or that mil interfere with its sale. ” Griffith v. Maxwell, 63 Ark. 548, 39 S. W. 852. And in Fenner v. Reeher, 148 Ark. 553, 230 S. W. 581, we quoted with approval the following: “The court will never compel a purchaser to take a title where the point on which it depends is too doubtful to be settled without litigation, or where the purchase would expose him to the hazard of such proceedings; or, as it is usually expressed, it will not compel him to buy a lawsuit.” To the same effect is the holding of the court in a number of subse-craent cases which were approved and restated in Crow Creek Gravel & Sand Co. v. Dooley, 182 Ark. 1009, 33 S. W. (2d) 369.
There was a large estate embracing the parcel of land in controversy left in trust by the will of the ancestor to the appellees and others. Suit was instituted in the chancery court of Sebastian County for the purpose of terminating the trust and vesting the title freed from it in the devisees in the will and their descendants, and for partition. One of the original devisees, Edward T. Hurley, had died before the institution of the suit, leaving a widow, Mrs. Lena Hurley, and two children, Edward Thomas Hurley and Hilda Jean Hurley, both of whom were minors under the age of fourteen years at the time of the institution of the suit and the owners of an undivided interest in the estate, and who are still minors. In that suit a decree was rendered terminating the trust, decreeing partition, and appointing commissioners who allotted to the minors a certain portion of the estate and the lot in question to the appellees. The alleged defect in that title was because, as it is claimed, the minor heirs were not properly served with process in that case as appeared from an examination of the original papers and decree. The examining attorney, in his letter to the appellant disapproving the title, said: “The decree shown at sheet A-2 (referring to the abstract) recites that there was proper service of summons on these two minor de fendants. Bnt, upon examining the return of service of said summons, I find that that recital is not correct. The sheriff’s return of service indorsed on the summons fails to show that the summons was served on the minors in the manner prescribed by the statute. The question raised may be a close question of law. But, in the absence of proper service on the minors, I do not think that the proceedings in said suit and the partition of the property pursuant to said proceedings are binding upon said minor defendants. ’ ’
The return upon which the attorney based his opinion is as follows:
"State of Arkansas,
"County of Sebastian.
"I have this 2d day of September, 1922, duly served the within summons by delivering a true copy thereof to each of the within named, C. L. Hurley, Annie Hurley, Harold Hurley, Mary Hurley Magruder, Edna Hurley, Mrs. Lena Hurley, widow of Edward T. Hurley, Hilda Jean Hurley and Thomas Edward Hurley, in the Fort Smith District.
"Blake Harper, Sheriff.
‘ ‘By A. J. Berry, Deputy. ’ ’
Indorsed: "Returned and filed this 12th day of September A. D., 1922.
"S. A. Lynch, Clerk.
"By Claude Hoffman, D. C.”
The important question in this case is this: Is the state of the record in the decree ordering partition, and which is a link in appellee’s chain of title, sufficient to create a reasonable doubt as to the sufficiency of the title ? It is not sufficient to create a reasonable doubt that the owner might be exposed merely to idle litigation, but it must be a reasonable apprehension that the purchaser-taking the title might be subjected to litigation of a substantial nature from which his title might be placed in jeopardy. In determining whether or not reasonable doubt exists, it appears to be the general rule that the opinion of an attorney that the title to property is bad is not sufficient to raise such a doubt, although., as in the instant case, the attorney may he one of admitted standing and ability. Such opinion that the title is invalid, if erroneous, will not justify the purchaser in receding from his contract. LeRoy v. Hornwood, 119 Ark. 418, 178 S. W. 427; Lone Rock Bank v. Pipkin, 169 Ark. 491, 276 S. W. 588; Tudor v. Bank of Lincoln, 184 Ark. 1110, 44 S. W. (2d) 1091; Montgomery v. Pacific Coast, etc., 94 Cal. 284, 29 Pac. 640, 28 Am. St. Rep. 122; Buchan v. G. A. L. Co., 180 Ia. 911, 164 N. W. 119, L. R. A. 1918 A., 84; Brackenridge v. Claridge, 91 Tex. 527, 44 S. W. 819, 43 L. R. A. 593. If it should appear to the court, upon general and familiar principles of law, that the title is valid, then the doubt as to the title would be unfounded, and there could be no basis for any reasonable apprehension that the purchaser would be subjected to substantial litigation.
The record of the proceedings in the suit for partition show that on November 11, 1922, the following order was made and entered: “Upon due service on the minor defendants herein, Mrs. Lena Hurley is by the court appointed guardian ad litem for the said defendants, and now, on this day, files her answer as such guardian. V The answer made specific denial of all the material allegations of the complaint.
The decree adjudging that the trust be terminated and decreeing partition as prayed was made and entered on November 15, 1922, and contains the following recital: “The court finds that the allegations of the bill of complaint are true, and finds that actual service was had on the minors, Hilda Jean Hurley and Edward T. Hurley, by delivering to each of them and to Lena Hurley, their mother and guardian, a copy of the summons herein. The court further finds that thereafter an attorney and guardian ad litem was appointed in this cause for said minors, and an answer was filed by said attorney for said.minors as required by law.”
The method of service on infant defendants is prescribed by § 1153 of Crawford & Moses’ Digest, which provides that, where the minor defendant is under the age of fourteen years, service must he upon him and upon his father or guardian, or, if neither of these can be found, then upon his mother, etc.
It is a familiar law that the recitals and judgment of a court of superior jurisdiction as to service will be conclusive unless it is in conflict with other official evidence in the record. The complaint affirmatively showed that Edward T. Hurley, the father of the minors, was dead, and that Mrs. Lena Hurley was their mother, and in that state of case the law required that a copy of summons be served upon each of them and their mother. There is nothing in the return of the sheriff to indicate that this law was not complied with. On the contrary, the fact is evident that actual service was had on the minors by delivering to each of them a copy of the summons and a copy to their mother, Mrs. Lena Hurley. It is true, the return does not state in so many words that Edward T. Hurley and Hilda Jean Hurley were minors or that Lena Hurley was their mother, but, as a matter of fact, they were minors, and Lena Hurley was their mother, and therefore service was had in substantial compliance with the law, although the officer failed to describe with particularity its method. The return of the sheriff does not contradict the recitals in the decree, but supports and confirms them. We have held that a literal compliance with the statute is unnecessary if there is a substantial compliance, Huggins v. Dabbs, 57 Ark. 628, 22 S. W. 563. And in Boyd v. Roane, 49 Ark. 397, 5 S. W. 704, which was a suit by heirs to vacate a decree rendered when they were minors on the ground that they had not been served with summons, the complaint was dismissed, although the decree recited the appointment of a guardian ad litem after service of process on them and that the guardian answered. In that case the court held that this recital in the record raised a conclusive presumption of service. Counsel for the appellees have cited a number of cases which support the view we have taken, but which we deem it unnecessary to notice, as-in'our opinion the above case is controlling, and that on well-settled principles of law there conld have been no reasonable doubt as to the validity of the title, and that the judgment of the trial conrt decreeing specific performance of the contract is affirmed.
Engene Henderson was a party to the proceeding-in the conrt below, and the court awarded him judgment in the sum of $1,000 against the appellees as his fee for procuring the purchaser, and from that judgment the appellees were'granted a cross-appeal. It is admitted by the appellees that Henderson is entitled to the $1,000 as his fee, but it is contended he would not be entitled to judgment against them unless specific performance should be awarded. Henderson has already in his possession the amount of his fee, and, since he will not be required to return the money to the appellant, the question as to him is unimportant, and the judgment in his favor will also be affirmed. | [
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Hughes, J.,
(after stating the facts.) Section 1 of the act of March 18, 1887, provided that “no conveyance, mortgage or instrument affecting the homestead of any married man shall be of any validity unless his wife joins in the execution of such instrument and acknowledges the same.” The mortgage or deed of trust involved in this case was" void under this act, and this is conceded by appellant. Blit the act of the 13th of April, 1893, provides “that all deeds, conveyances, instruments of writing affecting, or purporting to affect, the title to real estate, which have been executed since the 18th day of Márch, 1887, and which are defective or ineffectual by reason of section 1 of an an act entitled ‘An act to render more effectual the constitutional exemption of homesteads,’ approved March 18, 1887, be, and the same, and the records thereof, are hereby declared as valid and as effectual as though said act had never been passed.” Section 743, Sand. & H. Dig. This cimed and made valid and effectual the deed of trust under consideration, it having been made prior to the act of April 13, 1893, and subsequent to the act of March 18, 1887. Under the act of April 13, 1893, the appellee’s rights under the trust deed vested, and could not be divested by subsequent legislation. Therefore the act of April 19, 1899, repealing the act of April 13, 1893, did not have the effect to divest the rights of the appellee, which vested under the said act of April 13, 1893. An act of the legislature will not be construed to have a retroactive effect, if susceptible of any other construction. Couch v. McKee, 6 Ark. 484; Fayetteville B. & L. Assn. v. Bowlin, 63 Ark. 573; Cooley, Constitutional Lim. (4th Ed.) 411, and cases cited. “Rights conferred by statutes are determined according to the law which was in force when the right accrued, and are not in any manner affected by subsequent legislation.” Porter v. Hanley, 10 Ark. 195; St. L. I. M. & S. Ry. Co. v. Alexander, 49 Ark. 192; Wade, Retroactive Laws, § 34. The legislature possesses no power to divest legal or equitable rights previously vested. Brown v. Morison, 5 Ark. 217; Dash v. Van Kleeck, 7 Johns. 477.
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Wood, J.,
(after stating the facts.) The object of plaintiff’s complaint was to cancel a deed of trust, which she claims was a cloud upou her title. She makes the deed of trust an exhibit to her complaint. A deed made an exhibit and referred to in a complaint in equity, and thereby made part of the record, would control the averments of the complaint. Buckner v. Davis, 29 Ark. 444; Beavers v. Baucum, 33 Ark. 722. Here the deed of trust exhibited with plaintiff’s complaint contains an express covenant to pay the debt of appellants, exactly similar to that contained in the deed of trust passed on by this court in New England Mortgage Security Co. v. Reding, 65 Ark. 489, where we held that, the mortgage being under seal, and containing a promise to pay the debt, the right of action upon it was ten years. The averment in plaintiff’s bill that “said trust deed is barred by the statute of limitations” was controlled by the stipulations and recitals in the trust deed itself, which showed such averment to be untrue. The court therefore erred in rendering a decree pro confesso cancelling the deed of trust. The decree was. not based upon a complaint which showed a good cause of action. It was therefore erroneous. Chaffin v. McFadden, 41 Ark, 42; Benton v. Holliday, 44 Ark. 6.
The judgment is reversed, and the complaint is dismissed for want of equity. | [
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Wood, J.,
(after stating the facts.) The prima facie case of negligence resulting from the killing was not overcome by the proof of the engineer, nor the witness for plaintiff who saw the killing. The track was straight, and the engine had a fine head light. The engineer says he saw the cow step on the track in front of the engine, but he does not say that he did not see her upon the right of way, or near to the track before she came upon the same. If he did see the cow, and she was so near as to indicate danger to her, he was negligent in not sounding the alarm, slowing up, or doing whatever else was necessary to frighten the cow from the track. If he could have seen her before she came upon the track in time by the use of the stock alarm, or other necessary precautions, in the exercise of ordinary care, to have avoided injuring her, and failed to do so, he was still guilty of negligence. These propositions are not rebutted by his evidence, nor by the plaintiff's witness, because she says she was not looking for the cow. For aught that appears to the contrary, the cow was or might have been seen by the engineer before she came upon the track in time to have avoided killing her by the use of the ordinary precautions.
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McHaNey, J.
This appeal is prosecuted from an order of the circuit court denying the petition of appellants for an attorney’s lien under § 628-, Crawford & Moses’ Digest. The petition was filed in a proceeding tried in the circuit court, wherein the Camden Gas Corporation was plaintiff and the city of Camden, the mayor, and members of the city council were defendants, in which plaintiff sought to enjoin the enforcement of a city ordinance lowering gas rates in said city to domestic consumers of gas. In that case the mayor, by authority of the council, employed appellants to represent the city and the domestic consumers of gas as attorneys in that litigation. The ordinance fixing the maximum rates to be charged domestic consumers was adopted April 1, 1929. The Camden Gas Corporation refused to accept the new rates fixed by said ordinance, and brought suit attacking its validity. An injunction was issued suspending the new rates, and a bond was given by the gas corporation guaranteeing a refund of the difference to domestic consumers between the old rates and the new, in the event it was finally determined the ordinance of April 1 was valid. The ordinance was sustained. See Camden Gas Corporation v. Camden, 184 Ark. 34, 41 S. W. (2d) 979. Tke result was tkat during tke pendency of tkat litigation tkere was a fund accumulated in tke kands of tke Camden G-as Corporation in tke sum of $17,819.17, for wkick amount judgment was rendered. Tke judgment reads: “Tkat tke defendant, city of Camden, Arkansas, do kave and recover of and from tke plaintiff tke sum of $17,819.17 for tke use and benefit of tke domestic consumers of gas witkin tke city of Camden, Arkansas.”
At a mass meeting of tke domestic consumers of gas, an agreement in writing was reacked between appellants, and nearly all tke domestic consumers, wkereby appellants were allowed a fee of 20 per cent, of tke money due tke consumers as a refund from tke gas company. However, tkis petition for a lien was filed. Tke Camden G-as Corporation is ready, willing and able to pay, but one consumer, for kimself and others, filed objection to tke claim of lien on tke ground tkat appellants kad no contract witk tke consumers, either express or implied, but their contract was witk tke city, and not for or on behalf of tke consumers; tkat, if tke city employed them on behalf of tke consumers, its act was ultra vires, null and void and not binding on tke consumers. It was admitted by tke intervener tkat appellants were employed by a large number of tke domestic consumers, but says said employment was a voluntary arrangement between them, wkick did not affect tke rights of those consumers who did not employ them. Tke court held appellants were not entitled to a lien on tke fund due interveners, and dismissed its petition.
Every act of tke mayor and members of tke council in tke defense of tke action to nullify tke ordinance, including tke employment of attorneys, was on tke behalf and for tke benefit of the domestic consumers of gas in tke city of Camden. Not a single cent of benefit did accrue or could kave accrued to tke city of Camden, as a corporation. If tke new rates fixed in tke ordinance of April 1, 1929, were sustained, all tke benefit therefrom would accrue to the domestic consumers. The bond given was for their benefit, and tbe final judgment rendered was one in favor of tbe city “for tbe use and benefit of tbe domestic consumers of g’as.” Tbe city employed counsel to defend an action, not for its benefit, but for tbe benefit of these consumers, with their knowledge, and, if not with their actual consent, with their implied consent. In other words, tbe action of tbe city was as tbe representative or agent of tbe consumers who stood by and, without objection' accepted tbe service and its beneficial result. Under such circumstances the law implies an agreement, or that tbe agreement made by tbe city in employing counsel bad been ratified. In either case tbe domestic consumers would be liable to pay counsel for their services a reasonable fee, and, if any should refuse to do so, tbe court should declare a lien on tbe fruits of tbe litigation. Compare Board of Education of Lonoke Comity v. Lonoke County, 181 Ark. 1046, 29 S. W. (2d) 268.
Tbe judgment will be- reversed, and tbe cause remanded with directions to declare a lien in appellant’s favor to tbe extent of 20 per cent, on tbe fund in tbe bands of tbe Camden G-as Corporation. | [
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Butler, J.
On the 12th day of July, 1916, John Emrich and Katie E. Emrich conveyed to the appellant’s predecessor in title a right-of-way across 240 acres of land to be used for the laying and maintenance of pipe lines for the transportation of oil and gas, and the privilege of erecting and maintaining telegraph and telephone lines, if necessary. Reservation was made by the grantors for the use of the premises, except for the purposes specified in the grant, that they might recover damages arising to the crops and fences if the same were injured by the grantees in the exercise of the easement. The consideration named in the deed for the grant of the right- of-way was tlie sum of $1 “and tlie further consideration of all gas used by grantors for domestic use free of charge, to be paid when such grant shall be used or occupied. ’ ’
After the execution of the conveyance the way for a pipe line was located and laid across the property of the grantors, some two or three hundred feet distant from a residence then occupied by Mr. and Mrs. Emrich. Em-rich made connection with the pipe line, and laid a pipe from it to his home, and he and Mrs. Emrich nsed the gas for domestic purposes until they died some years later. After they died the residence was in charge of a caretaker for a time, who only used the basement. The lands were devised to a granddaughter, who, in August, 1931, conveyed five acres out of the tract, and on which the Emrich residence was located, to the appellees, no part of which was on the rig’ht-of-way. Shortly after this, a gas meter was installed by the appellants and a charge made for the use of the gas as was made to other customers in the city of Fort Smith. This resulted in the bringing of this action by the appellees to restrain the appellants from discontinuing the furnishing of natural gas for domestic purposes to the appellees in the Emrich dwelling, and for a mandatory injunction requiring them to furnish said gas free of charge.
The chancellor heard the case on the pleadings and testimony and found that the right to the use of gas free of charge was a covenant running with the land and became annexed and appurtenant' to the dwelling house on the tract of land purchased by the appellees, and therefore they were entitled under their deed to the use of gas free of charge. The appellants seek a reversal of the decree on three grounds: first, that there was no covenant in the conveyance by Emrich of the right-of-way running with the land; second, that there could be no specific performance of the contract; and, third, that the contract is void as against public policy. We need consider only the first contention as our view of that is determinative of this litigation.
It is our opinion that the stipulation in the conveyance quoted, supra, was personal to the‘grantors and not a covenant real as is insisted hy the appellees. We have examined with care all of the authorities cited in the splendid brief of counsel for the appellees which he contends support the view that the use of gas for domestic purposes mentioned in the conveyance of the right-of-way was a covenant running with the land and appurtenant to the Emrich residence. To sustain the view that a covenant to furnish gas is one to run with the land, counsel cite Indiana Natural Gas Co. v. Harper, 50 Ind. App. 555, 98 N. E. 743; Harper v. Hope Natural Gas Co., 76 W. Va. 207, 84 S. E. 770, L. R. A. 1915E 570; Indiana Natural Gas Co. v. Hinton, 159 Ind. 398, 64 N. E. 224; and Thornton on Oil & Gas, (2d ed.) §§ 92 and 93 (now § 99, vol. 1, 4th ed.). An examination of these cases shows that all of them arose out of contract for lease of land for the exploration or production of oil and gas, and the furnishing of gas free of charge was a part of the rent issuing out of the demised premises.
The cases of Johnson v. American Gas Co., 8 Ohio App. 124, and Anderson v. Empire Natural Gas Co., 116 Kan. 501, 227 Pac. 347, 41 A. L. R. 253, cited by appellees, appear to he more nearly in point, but in the Johnson case the contract under consideration was one where the gas company was granted an easement over a certain farm in consideration of the sum of $1 and the furnishing of free gas in the residence of the grantor. The court in discussing the consideration, said: “Beyond question, the real consideration was the gas to he furnished * * * and this ‘in the residence of John McLandsborough,’ not to or for John McLandsborough, hut in the residence; therefore, the name ‘John McLandsborough’ is descriptive of the residence in which the gas was to be furnished.”
In the Alderson case, supra, the grant was the right of laying a gas pipe across the real estate of the grantor, and as part of the consideration therefor the grantee agreed to furnish gas “for use on the premises” at a certain rate. Construing the language of the contract, the court said: ’“The only reasonable construction of the contract is that gas was to be furnished on the premises leased for use in the buildings thereon by whoever might be the owner thereof at any time in the future, so long as the land is occupied by the pipe lines of the defendant.”
Murphy v. Kerr, 5 Fed. (2d) 908, 41 A. L. R. 1359, cited by the appellees, was a case where a stipulation in a deed to furnish water on the tract of land conveyed was held to be a covenant running with the land, but the tract conveyed was without water and without means of obtaining it save in the mode existing at the time of the conveyance as mentioned in the deed. At the time the land was conveyed to the g’rantee, water was being conveyed into a reservoir then established on the land through pipes already laid connecting the reservoir with water on another parcel of land owned by the grantor. Here the easement was in esse at the time of the grant, and was not only beneficial, but essential to the use of the land conveyed. So, in the case of Hess v. Kennedy, a New Jersey case, 69 N. J. Eq. 138, 61 Atl. 464, where a deed conveyed a certain lot on which there was a residence with water fixtures and a drain pipe crossing another parcel of land belonging to the grantor and emptying into a public sewer, and where the deed contained no specific mention of the drain but the usual clause conveying “ways, waters, privileges, with the appurtenances, etc,” it was held that the drain then existing was an easement appurtenant to the lot conveyed and passed to the grantee and those holding under him because it was in being at the time of the grant and necessary for the enjoyment of 'the land conveyed.
In Southern Pac. Ry. Co. v. Spring Valley Water Co., 173 Cal. 291, 159 Pac. 865, L. R. A. 1917E 680, relied on by appellee, the question involved was whether the language of the instrument constituted an agreement by the water company to furnish water to the railroad company, and, if so, whether an enforcement of it would be opposed to public policy. The grant of the easement was “in consideration of the construction and maintenance of a highway at Newark Station and the free nse of water therefrom for fire and station and all other railroad purposes.” The court merely held that the stipulation contained such an agreement, and that the same was not contrary to public policy.
The facts in Toothe v. Bryce, 50 N. J. Eq. 589, 25 Atl. 182, and the principle involved are similar to the cases of Murphy v. Kerr and Hess v. Kennedy, supra. In none of these cases is the covenant like that in the case at bar. The two cases most nearly approaching this, as has been said, are Johnson v. American Gas Co. and Alderson v. Empire Gas Co., supra, but it is to be noted that in both of these cases, as has been said, the reference is made to “the premises” or “the residence” where the gas is to be used. It is the general rule that those covenants which are held to run with the land and to inure to the benefit of those succeeding in title to the grantee are such as generally affect the land itself and confer a benefit on the grantor, but where the covenant imposes a burden on real estate for the benefit of the grantor personally it does not follow the land into the possession of an assignee.
It is the contention of the appellants that the agreement to furnish the gas free of charge in consideration of the conveyance of the right-of-way was a personal right to the grantor, and to this view we assent. The consideration named in the conveyance was “all gas used by grantors for domestic use.” It does not limit the use of gas to the grantor in his residence, or at any other place, but makes it personal to him to be used where and when it may be convenient, so long as its use is applied for domestic purposes. We are of the opinion, with the appellants, that the case of Field v. Morris, 88 Ark. 148, 114 S. W. 206, controls the case at bar, and the principle announced in Washburn on Easements, page 17, § 1, there quoted with approval by the court, applies here: “ A right in gross (a personal right), whether an easement or a profit in the land, is clearly not assignable or inheritable if it is created by a grant in which the right is given to the grantee, without any mention of heirs or assigns or successors, etc., or other words which show an intent to extend the right beyond the person of the grantee. Such a grant conveys only a personal right to the grantee, and when he dies the right is extinguished, and no attempt which he may make in his lifetime to assign or transfer the right will be successful.” In the Field case the grantor inserted in the deed the following words: “Reserving to ourselves the use of one and one-half acres free of rent, where the mill and gin stands in southwest corner of said tract, with the privilege of removing buildings and machinery therefrom, * * * and we are to have the use of one and one-half acres free of rent as long as we or others holding under us may want to use same for running machinery at said point.” And, in commenting upon this, the court said: “The last quotation from the deed shows only how long Darter and wife were to have the use of the land free of rent. ‘ Others holding under us ’ refers to persons holding like tenants. No mention of heirs, assigns, or successor, or words of the same import, is made in the reservation. It is exclusively to Darter and his wife, was personal, and died with Darter; his wife having had only the right of dower in the land and joined with him in executing the deed for purpose of relinquishing dower.”
It is argued that words of inheritance in connection with the covenant are not a prerequisite to a covenant running with the land, and that, by the terms of § 1498 of the Digest, such words are not necessary to convey an estate in fee simple; all this may be, but here the covenant is not real but personal, and there was no attempt by any one to convey Mr. and Mrs. Emrich an estate in fee, and the statute can have no application.
Reliance is placed by appellee on several cases of this court to sustain his contention that the covenant in the conveyance from Emrich is one which will inure to his successors in title, to-wit, Railway Co. v. O’Baugh, 49 Ark. 418, 5 S. W. 711; St. L., I. M. & S. R. Co. v. San ders, 91 Ark. 133, 121 S. W. 337; Rugg v. Lemley, 78 Ark. 65, 93 S. W. 570; Bank of Hoxie v. Meriwether, 166 Ark. 39, 265 S. W. 642; Holtoff v. Joyce, 174 Ark. 248, 294 S. W. 1006. But in none of these cases was the covenant like or similar to that in the Emrich conveyance; the first two involved the interpretation of agreements relating to the erection and mode of payment of “party walls”; the second two related to agreements under which dams and levies were built on the grantor’s lands, and the last case (174 Ark. 248) was a covenant for an easement in an alley to be carved out of lands of the grantor adjoining as a way of ingress and egress to the parcel conveyed. In all of these cases the benefit was to the land, and the provisions in the several deeds were real covenants, as defined in Bank of Hoxie v. Meriwether, supra, as those which relate to the realty and having for its main object some benefit inuring to it.
In the instant case, as in Field v. Morris, supra, no mention is made in the deed of heirs, assigns or successors, or words of similar import used. The language used in the grant under consideration interprets itself. No premises or places are mentioned where the gas was to be used, nor are any words used indicating that it was for the benefit of any one but the grantors alone. Therefore, it was personal to the Emrichs and died with them. It makes little difference what the value of the right-of-way really was, or whether Emrich received more or less than its value in his lifetime, and the evidence on this issue we deem immaterial and unnecessary to set out, as we think that the language of the instrument itself must govern.
It follows from the views expressed that the trial court erred, and its decree must be reversed, and the cause remanded with directions to dismiss the complaint of the appellees for want of equity. It is so ordered. | [
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Humphreys, J.
Appellees, husband and wife, recovered judgment for damages in the total sum of $905 in the circuit court of Cross County against appellant on account of an injury received by the wife, causing her to miscarry, through the alleged negligence of appellant, from which is this appeal.
A reversal of the judgment is sought upon the alleged ground that there is no substantial evidence in the record to support it. The argument is made that the evidence wholly fails to show that the injury received was the proximate cause of the miscarriage.
Appellees purchased tickets at Fairoaks, Arkansas, for transportation to Wynne, Arkansas. According to the testimony introduced by them, they boarded appellant’s train at eleven o'clock a. m., and about the time the wife reached a seat, and before she had time to sit down, the train started with a jerk, which caused her to fall and strike her side against the arm of the seat; that she was pregnant and had been for three months; that the lick in her side produced great pain in her stomach, causing nausea and a hemorrhage from the genital organs; that, upon arrival at Wynne, she repaired to Stewart’s Drug Store, where she had additional hemorrhages, causing her to suffer great physical and .mental pain, and to become faint; that, after receiving medical attention, she was carried in a taxi to the home of a friend, where she remained for four hours in bed and in a semi-conscious condition, and then was carried to the home of her sister, where she continued to have hemorrhages and suffer until about five o’clock the next morning, at which time she miscarried; that, after being delivered of the fetus, she continued to suffer and was confined to her bed for ten days or more.
Dr. Stewart testified, in response to a hypothetical question, that, in his opinion, the miscarriage might have resulted from the injury.
Dr. Wilson testified on behalf of' appellant, in response to a hypothetical question, that in his opinion the miscarriage did not result from the injury, because the injury was not inflicted on the uterus, and because sufficient time had not elapsed between the time of the injury and the delivery of the fetus for the injury to have been the proximate cause of the miscarriage.
The testimony detailed above justified the court in submitting to the jury the issue of whether the injury was the proximate cause of the miscarriage. Courts are not required to accept opinions of expert witnesses as absolutely true, and peremptorily instruct verdicts based upon their opinion regardless of all other facts and circumstances in the case tending to conflict with such opinion. Expert witnesses themselves frequently differ in conclusions and opinions in response to identical hypothetical questions; hence their opinions do not rise to the level of physical facts.
In the instant case, the testimony of the lay-witnesses tends to show that the injury was the direct cause of the miscarriage, and is supported to some extent by the testimony of Dr. Stewart.
The testimony of Dr. Wilson, appellant’s expert witness, tends to show that the injury was not the proximate cause of the miscarriage.
This produced a conflict in the testimony for determination by the jury and not the court. The peremptory instruction therefore requested by appellant was properly refused.
Appellant also urges that the amount of recovery is excessive and the result of passion and prejudice. We cannot agree with learned counsel in this contention. The wife was entitled to recover for mental anguish as well as physical pain and suffering. According to the evidence adduced by appellees, she began to suffer acute and severe pain coincident with the injury, which continued in its intensity until four or five o’clock the following morning, at which time she miscarried. Her suffering was so great that she had fainting spells, and at times became unconscious. She continued to suffer physically thereafter for ten days or more. When these facts are' considered in connection with the mental anguish a woman must necessarily suffer in having a miscarriage instead of a child born alive, we cannot say that a verdict for $905 is the result of passion and prejudice.
No error appearing, the judgment is affirmed. | [
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Butler, J.
Tbe record and briefs in this case are voluminous, but tbe essential facts may be briefly stated as follows:
Tbe appellee, W. A. Tollerson, bad been in tbe employ of tbe appellant and an associated company for several years. He was engaged in laying tracks on log roads and spurs thereof and taking up tbe same when they bad served their purpose and locating them in other places. He had been promoted from time to time until, at the time of his injury which was the occasion of this suit, he was foreman of the steel gang and acting as conductor on the work train which transported his crew and material. On May 3, 1929, he was in charge of a work train consisting of a locomotive, a caboose attached thereto, and four flat cars attached to the caboose. It was the appellee’s intention to proceed from the main log road on to a spur for the purpose of taking up this spur and removing the same. When his train reached the spur, it was backed on to it, the four flat cars being first, the caboose next, and the locomotive last. In this order the train was backed along the spur track. The locomotive was in charge of an engineer and a fireman. The steel gang was in the caboose, or immediately outside of it on its vestibule or approach, except one of them named Davis, who was stationed on the last flat car from the engine and the appellee who was on the third flat car from the caboose and next to the end flat car on which Davis was riding. While they were occupying these positions, the train continued backing along the spur track until it had gone some distance from the main line when Davis discovered a fallen tree lying on the track. He signaled to the appellee to attract his attention. The appellee also saw the tree and in turn attempted to signal the engineer and fireman to warn them of the obstruction ahead in order that the train might be stopped. The expected response to these signals was not made, and the train continued to be backed at the same rate of speed at which it had been moving until the last flat car came in contact with the tree and was derailed. Just before this occurred, Davis and the appellee sprang from the cars on which they were riding to the ground. The appellee’s foot was badly injured, and it was for this injury that he brought suit, recovering the judgment that is here on appeal.
It is the theory of the appellee that he was occupying a proper place on the train, and that it was the duty of the engineer and fireman to keep a lookout in the direction in which the train was moving for such signals as might be given; that they failed in this duty, and because of snob failure tbe signals given were not seen or obeyed, and that tbis was negligence on tbeir part and tbe proximate cause of tbe injury suffered.
Tbe appellant, on tbe contrary, insists that tbe ap-pellee wrongfully took tbe position be was occupying at tbe time of bis injury, and that bis signals given from tbis place ¡could not be seen by tbe engineer and fireman, because tbe caboose between tbe locomotive and flat cars, being wider than tbe cab in wbicb they were riding, obstructed their view; that tbe place provided for tbe appellee and where it was bis duty to be was in a cupola on tbe caboose. Tbis cupola was provided with windows and an automatic air brake to enable one occupying tbe cupola in case of emergency to slow down and stop the train himself. Appellant maintained that, if the appellee bad been occupying tbis position, as they claimed it was bis duty to do, bis signals might have been observed by tbe operatives on tbe locomotives, and, if they bad not been seen, tbe appellee himself .could have prevented tbe accident by an application of tbe automatic air brake; that because be was occupying tbe position on tbe flat car was tbe proximate and sole cause of bis injury.
Tbe evidence was in sharp conflict; that on behalf of tbe appellant tending to sustain its contention, and that on behalf of tbe appellee tending to show, as claimed by him, that be was occupying a proper place on tbe train in accordance with instructions of bis superiors, and that tbe engineer and fireman could have seen bis signals in time to stop tbe train, bad they been keeping a proper lookout. The jury are tbe sole judges of tbe .credibility of tbe witnesses and tbe weight to be given their testimony, and, tbe testimony adduced by tbe ap-pellee being accepted as true, we are bound by the verdict of tbe jury, since on appeal tbe evidence tending to sustain tbe contention of tbe appellee must be viewed by us in its most favorable light. These rules are so well settled that we deem tbe citation of authorities unnecessary. There was sufficient evidence to sustain tbe ver- diet, and the judgment of the court in accordance therewith must therefore he affirmed, unless some substantial error appears in the conduct of the trial. Because of the fact that it is difficult in the confusion and hurry of trial to prevent errors from occurring, it is a rule of universal application that errors complained of must be substantial and prejudicial to the rights of the party complaining ; else they will be disregarded.
In this case-numerous assignments of error are made 'because of the admission of incompetent testimony, all of which we do not set-out and review in detail as to do so would unduly lengthen this opinion. We have examined the evidence said to be incompetent and have concluded that, if this is indeed true, no prejudice resulted thereby. The most serious contention made is relative to the action of the court in permitting the appellee to introduce a book of rules and to read to the jury rule No. 102 as follows: “When cars are pushed by an engine (except when shifting or making up trains in yards), a flagman must take a conspicuous position on the front of the leading car and signal the engine man in case of need”; also, in permitting the appellee to testify that such a book containing that rule was given him for his guidance by the railroad master of the Choctaw Lumber Company during the time he worked for that company from 1920 to 1923 as steel gang foreman. It is clear that, if this testimony had stood alone, it would have been incompetent. 'Before its introduction, however, J. M. Campbell was called to testify on behalf of the appellee and stated that he was the superintendent of the logging department for the appellant company and the Choctaw Lumber Company, and that he had held this position for both these companies for about twenty years; that the appellee worked in his department for the Choctaw Lumber Company during 1922 and 1923, and that the rules of the two companies governing the operation of the steel gang on the spur tracks were practically the same. Witnesses for the appellant testified that this book of rules and the specific rule read to the .jury governed the operation of trains on the tracks of two railroad companies which were separate and distinct corporations from the appellant, and that these rules had no application to the operation of log trains on the spur tracks of the appellant, and that no such hook of rules was ever given to the appellee for his guidance. This testimony did not render the admission of the hook of rules incompetent, but simply raised a question of fact as to whether or not such a hook had been given the appellee for his guidance, and that such rule applied to the conduct of employees of appellant.
It will he noticed that the rule read to the jury prescribes the position to be taken by one who should signal the engine man, and that this position is on the front of the leading car. Before the introduction of these rules, the appellee had testified without objection that he had been directed by his foreman to “ride out on one of these cars when the work train was backing out on the spur and there to watch for obstructions and see that the track was clear;’’ and, further, that at the time of, and just preceding, the accident appellee was keeping the position on the flat car as it was his custom to do and in accordance with orders he had received.
It appears that the facts sought to be established by the introduction of the book of rules had already been put in evidence by the testimony of the appellee without objection, and, if the introduction of the rule was erroneous, it was not prejudicial, because other evidence admitted tended to prove the same fact sought to be established by the introduction of the rule. Maxey v. State, 76 Ark. 276, 88 S. W. 1009; Thurston v. Payne, 148 Ark. 456, 230 S. W. 561; Chancellor v. Stephens, 136 Ark. 175, 206 S. W. 145; Ark. P. & L. Co. v. Orr, 175 Ark. 246, 298 S. W. 1029.
It is urged that the testimony of Campbell above referred to was incompetent because it related to rules in effect ten years before the time at which he testified. When his testimony however is considered in its entirety, it is manifest that he was testifying about rules in effect ten years before, and also that the same rules were in effect at the time of the accident in question. Therefore his testimony was not incompetent, although it may have been irrelevant, since the rules under which the appel-lee was working, according to his testimony, were the directions given him by his foreman.
The appellee was permitted to testify over the objection of the appellant that he had been fired by Hulse, appellant’s claim agent, because he would not agree to a settlement of his damages. The reason assigned for the incompetency of this testimony was that it tended to arouse th‘e prejudice of the jury and could have no bearing on the real question in issue. We agree with learned counsel that this evidence was incompetent, but it appears, when the amount of the verdict is considered in connection with the testimony relative to the injury of the appellee, that such verdict was amply justified, as the evidence might have warranted the assessment of a larger sum. The verdict does not appear to have been the result of passion or prejudice and the testimony complained of, while incompetent, was not prejudicial. St. L. I. M. & S. R. Co. v. Brown, 100 Ark. 107, 140 S. W. 279.
Objections were made and exceptions saved to the admission of other testimony which we have examined and find without merit.
The court gave a number of instructions at the request of the appellant, and the appellee and refused to give certain instructions requested by the appellant. Exceptions were saved to the giving of each of the instructions requested and given on behalf of the appellee and to the action of the court in refusing to give certain other instructions requested by the appellant.
Instruction No. 1, given at the request of the appel-lee, was long and involved, and submitted to the jury many questions about which there was no dispute, but we are of the opinion that the instruction on the whole was a correct declaration of law, and the error consisted in submitting to the jury questions which in fact were undis puted, and tlie instruction therefore was more favorable to the appellant than to the appellee. Specific objection was made to this instruction that it ignored the question of the duty of appellee to exercise due care for his own safety. This might be a valid objection were this suit not one against a corporation. Contributory negligence is no longer a defense in an action against a corporation (% 7145, Crawford & Closes’ Digest), and the jury might well find for the appellee, although it might appear that he was guilty of negligence contributing to his injury. Instruction No. 1 simply presented the theory of the appellee under the allegations of his complaint, and the theory of the appellant was also given in instructions requested by it.
There was no error committed by the court in overruling and refusing to grant other instructions requested, as they were fully covered by instructions given.
The instruction on the measure of damages of which appellant complains is one that has been frequently approved by this court, and we find it unnecessary to set it out. After a careful examination of all the instructions given and refused, we are of the opinion that the court gave the law to the jury in instructions as favorable to the appellant as it was entitled to.
Finding no substantial error in the rulings of the trial court, and, the verdict of the jury being supported by substantial testimony, both as to liability and the amount of damage, the judgment below should be and is affirmed. | [
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Butler, J.
In 1921 Mrs. Grant Crawford died, leaving surviving her husband, the appellant, and three children, a son about four years old, a little girl just younger and a baby boy about seven weeks old. Immediately after Mrs. Crawford’s death, Mr. and Mrs. Hopper, at the request of the appellant, moved into his home with the understanding that Mrs. Hopper was to take care of his small children, and she and her husband were to have a home. They lived together under this arrangement for a short time when Mrs. Hopper took the baby and went to Missouri. The appellant had Mr. Hopper arrested charged with kidnapping the baby, but after a time he was released upon the promise that he would secure the return of the child. Hopper then also went to Missouri, but did not bring the child back. The appellant attempted to locate the Hoppers without success until August, 1929, when they returned to Boone County, Arkansas.
Appellant filed a proceeding in the chancery court to obtain the custody of the child, who was then about eight years old. After hearing the evidence, the chancellor made certain findings of fact, in which he recited the testimony tending to show that the mother had before her death given her baby to her sister to be kept by her and reared as her own. He recited other facts which the evidence tended to establish, and concluded that the attempted gift of the child was void, but that under the circumstances the father was not entitled to the exclusive custody of the child. He divided the custody of the child between the Hoppers and the appellant, awarding the care and custody of the child during the time he attended school, — i. e., from September 1st to June 1st, to Mr. and Mrs. Hopper, and for that period from June 1st to September 1st to the father and requiring the expenses of transportation from the home of the Hoppers to that of the appellant to he borne equally by the appellant and the Hoppers; that Mr. and Mrs. Hopper should execute a bond in the sum of $2,000 obligating themselves to return the infant to the jurisdiction of the court and to perform the judgment of the court at that time or which might thereafter be made.
The order of the court made at its proceedings in August, 1929, was acquiesced in by both parties. The child remained with Mr. and Mrs. Hopper at their home in Muncie, Indiana, where he attended school from September to June, and was then sent each year to his fathei; for the summer vacation. This arrangement continued until some time in August, 1932, when the appellant filed a petition in the Boone Chancery Court asking that the order made in 1929, be modified, and that he be given the exclusive and permanent care and custody of his child. At the hearing, a letter was introduced written by the child to his foster parents in which letter he expressed apprehension that his father was planning not to allow him to return to them in Indiana. The child also stated to the chancellor that he preferred to live with his foster parents. It was shown that Mr. Crawford was a good man, and that there was a good school in his vicinity; that he had remarried, and that he was able to properly care for the child. It was also shown that Mr. and Mrs.' Hopper were good people, and that they were not only willing and able to care for the child, but that they had done so all his life and had sent him regularly to a good school, and that at the time of the examination he had advanced to the 6th grade in school; that during all this time, according to the testimony of Mrs. Hopper, which was not disputed, the father had contributed nothing to the support or education of the child.
The conditions had not materially changed since the order of the court in August, 1929, and the chancellor refused to modify that order. On appeal it is insisted that, as a father at common law is the natural guardian of his minor child, he is entitled to its sole care and custody unless it is shown that he is incompetent or unfit for such duties. A number of our oases are cited in support of this contention, but this rule is not absolute and may be interpreted and inforced by the court placing the interest of the minor as of paramount importance. It is argued by the appellee that, in consideration of all the facts before the court in the habeas corpus proceeding first instituted and on the hearing from which comes this appeal, the father had practically abandoned the child and forfeited his right to its custody. We deem it unnecessary to review the facts in detail, for the reason that the chancellor had all the parties and witnesses bef ore him in the two proceedings, which occurred in the county of his residence, and we are not disposed to differ from the conclusions he has reached unless it appears that this action w#s arbitrary and against- the preponderance of the testimony. This we do not find to be the case, and, as he still has jurisdiction in the future to make such orders as equity in the case warrants, his order will be upheld and affirmed. | [
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Humphreys, J.
The pleadings in this case are as follows: First, an intervention of appellee in the proceedings for the liquidation of the American Exchange Trust Company in the chancery court of Pulaski County, alleging its right to an offset, of $15,527.19, against a note for $20,000 it owed said hank on the day the bank ceased to do business; second, the answers of appellant banks denying the right of appellee to set off the bank’s indebtedness to it against said note to the extent of their alleged respective interests therein, and their cross-complaint alleging a preference over appellee and the general creditors in the funds to be derived from said note, and in the cash funds of said bank; and, third, the answer of the Bank Commissioner denying the right of set-off by appellee, except the difference between the participation certificates and the $20,000 note, and the right of appellant banks to the preference claimed by them.
The cause was submitted upon the issues joined by the pleadings and an agreed statement of facts, from which the court found and decreed that the appellee was entitled to a set-off in the sum claimed against its note, and appellant banks were entitled to a preference prb rata in the excess paid by appellee in the settlement of its note, from which is this appeal.
The agreed statement of facts is as follows:
“The parties to this action agree that the following is a complete statement of undisputed facts upon which the issues of law are based, and, as such, submit same to the court:
“The American Exchange Trust Company held the note of the Arkansas Democrat Company in the sum of $20,000, which note was due February 6, 1931.
“On November 10,1930, it sold to the First National Bank of Junction City, Arkansas, what was called a participating contract in the amount of $4,000, the form of which is as follows, to-wit:
“ ‘NO:. $..
“ ‘Certificate of Participation
“ ‘THE AMERICAN EXCHANGE TRUST COMPANY, Little Rock, Arkansas, has allotted to... .a-participation of. .dollars in a loan for.made to. secured by....dated....due . — ..with interest at..per annum.
“ ‘In allotting participation to its customers and others, in loans made by it and in the handling of the same, including substitutions or withdrawals of collat-erals, with or without reductions of the loans, the American Exchange Trust Company endeavors to exercise the same care that it exercises in the making and handling of loans for its own account, but it does not assume further responsibility. Such allotments and the handling of the loans, including substitutions and withdrawals of collateral, are for the account and risk of the participants.
“ ‘American Exchange Trust Company,
“ ‘Vice-Pres. “ ‘Asst. Secy.
‘ ‘ ‘ This certificate should be sent direct to the American Exchange Trust Company for collection a few days before maturity.’
“On November 14, 1930, it sold a similar contract to the People’s Bank of Mammoth Spring, Arkansas, for $2,500, and on the same day sold a similar contract for $5,000 to the Calhoun County Bank, of Harrell, Arkansas.
“The only evidénce of said transactions were the participating contracts. There was no indorsement on said note, which remains in the hands of the American Exchange Trnst Company, and was in its hands at the time it was taken over by the Bank Commissioner.
“At the time of said suspension the Arkansas Democrat Company had on deposit with the American Exchange Trnst Company the sum of $15,127.89, and said bank was indebted to the Arkansas Democrat Company in the sum of $399.30, making a total amount due the Arkansas Democrat Company of $15,527.19. If the Arkansas Democrat had been allowed to offset its account against the bank, it would still owe the bank $4,472.81 on February 6, 1931, the date said note became due. On said date, the Arkansas Democrat tendered to the bank commissioner said amount of $4,472.81 and demanded its note. The 'bank commissioner refused to accept said tender and payment, and refused to surrender said note, but credited said note with $8,500, which was the amount of said note, less the amount of the participating contracts it had sold, and set off said sum against the above-mentioned claim of the Arkansas Democrat Company.
“The banks buying the participating contracts had deposits with the American Exchange Trust Company, and, in making these investments, ordered it to charge the amounts invested to their respective accounts..
“There was more than $300,000 in cash in the American Exchange Trust Company when it was taken over by the Bank Commissioner.”
The undisputed facts reflect that the $20,000 note which appellee owed the American Exchange Trust Company had not been negotiated in the manner required by §§ 7796, 7797 and 7798 of Crawford & Moses’ Digest, and that it was held intact by said bank when the Commissioner took charge of the assets of the bank for liquidation. Appellant banks having failed to acquire an interest in the $20,000 note in accordance with the provisions aforesaid of the Negotiable Instruments Act, were and are in no position to challenge appellee’s right to offset the bank’s indebtedness to it against its indebtedness to said bank. There is nothing in the agreed statement of facts tending to show that appellee knew of, or consented to, an assignment of an. interest in the $20,000 note it owed the hank hy the execution of participation certificates therein to appellant banks; hence was not estopped to claim its right of set-off hy an assignment of a part of the note in manner contrary to the Negotiable Instruments Act. In order to have deprived appellee of its right of set-off, the note must have been negotiated in accordance with the provisions of the Negotiable Instruments Act, or else appellee must have assented to or acquiesced in the issuance of certificates of participation by said bank.
Appellant hanks, however, contend that, under and by virtue of the participation certificates in the $20,000 note that they acquired by purchase from the American Exchange Trust Company, they are entitled, in any event, to a preference pro rata in the amount owed by appellee upon its note after its claim against said bank has been deducted therefrom. The chancellor so found, and decrees upon the theory that the participation certificates created an express trust between appellant banks and the American Exchange Trust Company. Subdivision 5 of § 1 of act 107 of the Acts of 1927 provides for a preference in the assets of a defunct bank to beneficiaries of an express written trust. There are no words in the participation certificates evidencing an intention to create a trust. The res or subject-matter is not characterized as a trust fund, and the American Exchange Trust Company is not desig--nated therein as a trustee. This court announced in the case of Kansas City Life Insurance Co. v. Taylor, 184 Ark. 772, 43 S. W. (2d) 372, that (quoting syllabus one): “To create an express trust, there must be some act on the part of the creator expressive of an intention to create a trust and to make a designated party a trustee.”
The certificates are nothing more than evidences of indebtedness entitling appellant banks to participate in the funds of the bank as general creditors.
That part of the decree allowing appellee a set-off and declaring appellant banks general creditors is affirmed, but that part awarding appellant banks the difference between the face of the note and the set-off is reversed, and the cause is remanded with directions to the chancellor to enter a decree in accordance with this opinion.
Mr. Justice Kieby dissents.
Mr. Justice McHaney dissents as to modification. | [
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Smith, J.
Appellants sought, by injunction, to compel the appellee railway company to open certain streets in the city of Hot Springs at the junction of Valley Creek, Elm Creek and Olive streets, upon which the property of appellants abutted. It was alleged in the complaint, which appellants filed, that on July 7, 1914, the city of Hot Springs had passed an ordinance granting to the railway company a right-of-way over certain streets, and closing portions of these streets to public travel; that, pursuant to this ordinance, and without condemnation proceedings, the railway company had taken possession of the portions of the street mentioned in the ordinance, and had erected depots, fences, sheds, tracks, embankments, and other permanent structures in said streets, and had torn out a bridge which had been used as a public crossing, thereby damaging the property of appellants by rendering it less accessible and inflicting upon them a damage not sustained by the public in common with themselves.
The answer contained a general denial of the allegations of the complaint, and specifically alleged, by way of defense, that appellants had stood idly by while the railway company built its depot and laid its tracks, wherefore they should not now be heard to ask the relief prayed, and that a complete remedy at law existed to compensate any damages sustained by appellants which had not been sustained in common with the public. It was further alleged that the city council had passed ordinances in 1894 and in 1899, granting the right to use these streets to another railroad company, the predecessor of the appellee railway company, and had passed the ordinance of July 7, 1914, “granting said streets to defendant railway company and vacating same. ” As a further defense, it was alleged that, upon a petition filed for that purpose, the Railroad Commission had, in August, 1915, refused to grant the prayer of the petition that the street crossings in question be opened.
Considerable testimony was taken, and the learned chancellor prepared an elaborate opinion, containing numerous findings of fact, and, among other findings, that the railway company had made extensive and expensive improvements, of a permanent nature, which were necessary for the safety and dispatch of the company’s business.
It is earnestly insisted by the railway company that appellants have not sufficient title to maintain this suit, and that they have not sustained any special damages for which they are entitled to sue; but the record contains the following agreement in regard to damages: “ It is agreed that any finding that the court may make with reference to damage to the plaintiffs shall not be binding upon the defendants in future litigation with reference to same; it being agreed that the question of damage shall remain in abeyance to be passed on in the future; it being understood that the question of damages may be settled independently of the finding of the court as to the right or wrong of the company in erecting the structures in the street; in other words the defendants do not agree that plaintiffs, or any of them, are damaged; but it is understood that the witness (W. H. Hall) has testified that all of the plaintiffs have received some damage from the acts complained of. ’ ’
We will consider, therefore, only the question of appellants’ right to the relief prayed in the court below.
The chancellor denied the relief prayed upon two grounds. The first was that appellants were remitted to their action for damages. And the second was that the action of the Railroad Commission, in failing to grant the relief prayed, is decisive against the right of relief by injunction.
We will not stop to consider the correctness of the court’s action in denying injunctive relief insofar as that action is predicated upon the finding of the Railroad Commission and its refusal to grant the relief prayed.
We agree with the chancellor in his finding on the first ground, and base our decision, in affirming his decree, upon that ground alone.
The court found that three separate ordinances had been passed by the city council in regard to the streets in question. The first ordinance was passed in 1894; the second in 1899; and the third in 1914. That these ordinances granted to the railway company, and its predecessor, the right to the use of the streets for railroad purposes, and the rights so granted were immediately used, and that depots, shed, tracks, and other improvements, of an expensive and permanent nature, had been erected, and that, under the ordinance of 1914, the grade line of the railroad tracks had been changed and three new tracks had been laid, and a new depot built, in the year 1915, during all of which time appellants took no action, except to correspond with the railway company in regard to a claim for damages, until the filing of this suit on March 1,1916.
Under the facts stated, we must hold that appellants are remitted to their suit at law for damages to compensate any injury sustained by them. Although one may-arrest the first step toward the appropriation of his property until compensation is made, he does not forfeit his right to compensation because he takes no action until the appropriation has actually been made. But, if he stands by and fails to exercise the precedent right of being compensated for his property before it is taken, he, can thereafter only have compensation for his damages. Such is the effect of the decisions of this court in the cases of Organ v. Memphis & L. R. Rd. Co., 51 Ark. 235; Reichert v. St. Louis & S. F. Ry. Co., 51 Ark. 491; Ashley v. Little Rock, 56 Ark. 370; Beebe v. Little Rock, 68 Ark. 62; McKennon v. St. Louis, I. M. & S. Ry. Co., 69 Ark. 104; Warren & Ouachita Valley R. Co. v. Garrison, 74 Ark. 136; Ark., La., & G. R. Co. v. Kennedy, 84 Ark. 364; Union Sawmill Co. v. Felsenthal L. & T. Co., 87 Ark. 117; Cook v. St. Louis, I. M. & S. Ry. Co., 103 Ark. 326; Dobbs v. Town of Gillett, 119 Ark. 398; see also Lewis on Eminent Domain (3 ed.), § 929, and cases there cited.
It follows, therefore, that the decree of the court below must be affirmed. | [
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Smith, J.
Dr. S. A. Scott was, for several years, a customer of appellees, who are commission merchants in the city of Memphis, and, during that time, he bor-r rowed a large amount of money from this firm, which was repaid in part by the shipment of cotton. A dispute ■ which arose over the balance due led to the litigation which is reported in 119 Ark. 133.
Doctor Scott had control of his wife’s property, and sold a number of lots belonging to her, and invested portions of the proceeds of these sales in other property, the title to which was taken in his own name. He made other uses of other portions of this property. Finally he executed a deed of trust to certain property for the alleged purpose of securing and repaying the money he had used which belonged to his wife. This conveyance was attacked upon the ground that it had been executed in fraud of creditors, and the chancery court canceled it upon that ground. The decree appealed from in that case was affirmed by us in an opinion appearing in 119 Ark. p. 492. Property there uncovered was sold, but the proceeds of the sale proved insufficient to discharge the original judgment against Doctor Scott, and this suit was brought against Mrs. M. Scott, the wife of Doctor Scott, upon the theory that Doctor Scott had sold certain portions of the property so fraudulently conveyed, and had placed the proceeds of such sales to the credit of Mrs. Scott in banks, where accounts were carried in her name. Such accounts were kept with the Bank of Commerce, and the England National Bank, in Little Rock, and with the Merchants & Planters Bank of Eudora.
It appears, from the testimony of Doctor Scott, taken both in this and in the former litigation, that he placed in these banks proceeds of the sale of property covered by the deed of trust which was adjudged to have been executed in fraud of creditors. It is said, therefore, that, inasmuch as Mrs. Scott has derived the benefit of the proceeds of the sale of the property so fraudulently conveyed to her, she is liable to the creditors of Doctor Scott to the extent of the money so received.
Doctor Scott was examined and cross-examined at great length, without objection, by both court and counsel, and the court found that Mrs. Scott had received enough of the proceeds of the sales of land uncovered in the second suit to pay the balance due on the original judgment, and adjudged that she held said money as trustee for the benefit of the judgment plaintiff, and a decree was rendered against her separate estate upon that theory, and this appeal has been prosecuted to reverse that decree.
Mrs. Scott’s defense was made by a guardian who was appointed upon the allegation made in her behalf that she was an insane person. It is insisted in her behalf that she is insane, and that she had no knowledge of, nor part in, the transactions which have been carried on in her name. Physicians of eminence testified that Mrs. Scott is now, and for a number of years past has been, insane, and there is other evidence strongly corroborating this expert testimony. At any rate, it is undisputed that she is a confirmed invalid, and has been for many years, and that, as a result of this illness, she has but little mentality, and we are left in much doubt, under the evidence in this case, whether she has sufficient intelligence to comprehend the purpose and effect of her actions. The notary public, who took her acknowledgments to the conveyances executed by her, stated that she answered intelligently the question he asked her each time when the acknowledgments were taken. However, he said he had no conversation with her on any of these occasions, and he testified that he did not have an opinion as to her sanity, for he thought nothing about this question when called upon to take the acknowledgments.
The officers of the banks where the deposits were made testified that they did not know Mrs. Scott, and conld not say whether there was such a person, as she made none of the deposits, and never drew a check against the accounts. It is undisputed that, while the accounts were opened in the name of M. Scott, the deposits were made by Doctor Scott, and all the checks against the accounts were drawn by him. These checks were offered in evidence, and Doctor Scott explained the purpose for which the checks were drawn where that purpose did not appear from the face of the checks themselves. A consideration of this evidence makes it clear that these funds were not withdrawn for the use or benefit of Mrs. Scott, and we are even more certain that she knew nothing whatever about any of these transactions. It appears, from these checks, and the evidence explaining them, that the funds they represented were used by Doctor Scott in various enterprises in which he was engaged, and all for his own purposes and uses.
It is said, however, that this proof is made by Doctor Scott, and that his evidence is incompetent, inasmuch as he could not be the agent of his wife in the misappropriation of her funds, and that, if this testimony is excluded-there is no evidence to show the uses made of a sufficiently large amount of these funds to discharge’appellee’s debt; and that, in the absence of such evidence, the presumption must be indulged that funds deposited in the name of Mrs. Scott were, in fact, applied for her benefit. It appears, however, that no objection to the testimony of Doctor Scott was offered in the court below, and that much of this evidence was brought out by appellees in the examination of Doctor Scott as a witness for the purpose of explaining these transactions; that Doctor Scott gave testimony tending to establish a necessary part of appellee’s case, and no objection to the competency of other portions of his evidence having been made in the court below, such objection can not now be considered here. Fidelity-Phenix Fire Ins. Co. v. Friedman, 117 Ark. 80. There is no inherent incompetency in this testimony, and no objection was made to the competency of the witness.
No contention is made in this case that credit was extended to Doctor. Scott upon any mistaken assumption of ownership of Mrs. Scott’s separate property. The theory upon which the case was tried, and up'on which the decree was based, is that Mrs. Scott was a fraudulent grantee, and had been the beneficiary of the sales of property so fraudulently conveyed to her. We think, however, that the finding to this effect is clearly against the preponderance of the evidence. There has been a sale under the directions of the decree upon the second appeal in this litigation, in which the conveyance from Doctor Scott to his wife was held to have been made in fraud of his creditors, and, at this sale, the property so fraudulently conveyed, which was then on hand, was sold; the proceeds of the said property previously sold form the subject-matter of this litigation; and we are of opinion that Mrs. Scott had no information in regard to these transactions and derived no benefit from them. Doctor Scott explains his failure to make, in the second suit, some of the explanations made here by saying that he was then unwilling to disclose his wife’s mental condition, and that she never, in fact, knew anything of the former litigation, and that he directed the sheriff to make return of service of the summons in that case when the summons had only been delivered to him, and that he did this because of his apprehension of the disquieting effect the service of process would have upon his wife. He did not tell the sheriff of her condition, however, and made no issue as to her sanity in that case, and he testified that he does so now only because of the attempt here being made to subject her individual estate to the payment of his personal obligations. However that may be, and whatever his motive may have been, for making now a defense which he failed to make in the former case, we are of opinion that the testimony does not show that Mrs. Scott received the benefit of the sale of lands in question, or that she had any knowledge of the transaction in regard thereto, and the decree of the court below will, therefore, be reversed.
McCulloch, C. J., disqualified and not participating. | [
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Butler, J.
This is an action brought by appellant order under subdivision 7 of § 6290 of Crawford & Moses’ Digest, in accordance with the procedure prescribed in § 6292 of the Digest to vacate a judgment of the Lee Circuit Court rendered at a former term. To the petition filed to vacate, response was made, and the court, after hearing the testimony on the issues joined, entered its judgment, denying the prayer of the petition and refusing to vacate the judgment theretofore rendered. To that action of the court, the appellant petitioner filed the following exceptions:
I. Defendant, United Order of Good Samaritans, excepts to the ruling of the court on the ground that the record shows an unavoidable casualty or misfortune preventing the defendant from presenting his defense, together with a prima facie showing of meritorious defense.
2. Defendant excepts on the ground that the judgment was partially void on the uncontradicted face of the record as shown by the by-laws of defendant society.
Whereupon, the defendant prayed an appeal to the Supreme Court, and was by the court allowed ninety days 'within which to file hill of exceptions. Bill of exceptions were filed July 9,1932.
The appellant here argues that the judgment of the lower court refusing to vacate its former judgment should be reversed for the reasons, (1) that the undisputed record showed that the appellant was prevented from appearing and presenting his defense because of unavoidable casualty within the meaning of § 6290, supra; and (2) that the records of the company and the statements in the proof of death established the liability of the company, if any, in a sum not to exceed $150'.
The appellee takes the position that it is necessary in proceedings of this nature to file a motion for a new trial as in other suits at law, and obtain the ruling of the court upon that, in order that the testimony taken on the petition to vacate may be brought into the record here and considered by us. Under § 6292, supra, the proceeding’ to vacate or modify a judgment on the grounds mentioned in the seventh subdivision of § 6290, supra, are the same as in ordinary adversary proceedings, i. e., by verified complaint upon which a summons shall issue and be served and other proceedings had as in an action at law. It therefore appears that the procedure prescribed by § 6292, supra, makes this an independent proceeding, and the judgment rendered upon it is final and appealable, and, in order that we may be able to review the judgment of the trial court vacating a former judgment, a motion for a new trial is necessary, and the same must be incorporated with the action of the court thereon in the record; and, when such motion is not made and a rehearing on it obtained, it must be presumed that the judgment of the trial court was based upon sufficient evidence. Martin v. Pierce Petroleum Corporation, 174 Ark. 1161, 298 S. W. 494; Loyal Protective Ins. Co. v. Edwards, 124 Okla. 240, 255 Pac. 700.
The policy sued on provided that, in the event of death of the insured after he had passed a certain age, the beneficiary would be entitled to recover only one-balf of the policy, which would be $150, and it is insisted that the record on its face shows that the insured had reached that” age before he died. However, it appears in the .judgment sought to be vacated that the court heard testimony on this issue, and we must presume that the testimony was sufficient to warrant the finding that the beneficiary was entitled to the sum awarded.
Even should the exceptions filed to the judgment appealed from be treated as a motion for a new trial, we still think that the same should not be disturbed. The trial court is clothed with sound judicial discretion in such matters, and, if we may consider the evidence, we are of the opinion that it was sufficient to warrant the court in its finding that no unavoidable casualty within the meaning of § 6290, supra, has been shown.
Judgment affirmed. | [
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