text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Battle, J.
This action was instituted by the state of Arkansas and Thomas J. Watson against Franklin Whittaker, in the Jackson circuit court, to contest the election of the defendant to the office of mayor of the city of Newport, and to recover that office for Watson. They alleged in their complaint and the amendments thereof that Watson is a citizen of Newport, and a qualified elector; that at the election held at Newport on the fifth day of April, 1898, there were cast for the office of mayor of said city 507 votes; that Watson, Whit- taker and Thomas Ward, being candidates for that office, received of said votes as follows: Watson, 216; Whittaker, 218; and Ward, 73; that Whittaker, having received the greatest number of votes, as shown by. the returns, received the certificate of election; that Whittaker was not legally elected, because of the votes cast and counted for him forty-four were cast by persons who had not paid their poll tax and were not entitled to vote, eight were cast by persons who were non-residents of the city at the time of the election, and three by persons who had been convicted of larceny; that Watson received of said votes 216, which was the greatest number of legal votes cast for any one for the office of mayor at that election, and was duly elected; and that, notwithstanding this fact, Whittaker] has usurped the office, and excluded Watson therefrom. And plaintiffs asked that the election be inquired into, and that the legal votes be counted, and that Watson be declared elected, and that the defendant be ousted from the office, and for other relief.
The. defendant answered, and denied that Watson was elected, and alleged that he was, and that Watson had received of the votes cast at the election fourteen which were cast by persons who had not paid their poll tax and were not qualified electors, twenty-eight of which were cast by non-residents of the city, and one east by a person convicted of a felony.
After hearing the evidence, the' court found, in part, as follows:
“1. That there was a regular election duly held in the city of Newport, Jackson county, .Arkansas, on Tuesday, the 5th day of April, 1898, for the purpose of electing a mayor and other officers of said city * * * for the ensuing term of two years, and at said election Thomas J. Watson, Franklin Whittaker and T. T. Ward were candidates for mayor, * * * and were the only persons for whom votes were cast for the office of- mayor.
“ 2. That the commissioners of election f or Jackson coun ty, on the returns made to them by the judges and clerks of said election, declared that Franklin Whittaker had received 218 votes for the office of mayor of the city of Newport, that T, J. Watson had received 216 votes, * * * and T. T. Ward had received 73 votes. * * * And that said commissioners issued a certificate of election to said Franklin Whittaker. Whereupon he received a commission as mayor of said city, and thereupon assumed to exercise said office of mayor of said city, and was prior to and at the time of the institution of this proceeding, and is now, exercising' said office.” And it is further found that Whittaker received at said election for said office 156 legal votes and no more, and Watson 197 — 41 more than were received by the defendant, and 124 more than Ward; and rendered judgment in favor of Watson for the office; and the defendant appealed.
This action is based upon chapter 153 of Sandels & Hill’s Digest, the object of which is to provide a remedy for usurpation of office or franchise. The statutes and laws of this state do not provide for the contests of elections for mayor in any manner except as provided in the chapter named. No other court being vested with the right to hear and determine such contests, the circuit court has jurisdiction to do so; and chapter 153 of Sand. & H. Dig. furnishes a remedy. Lambert v. Gallagher, 28 Ark. 451; Payne v. Rittman, 66 Ark. 201; McCrary, Elections (4th Ed.) 369; 2 Dillon, Municipal Corporations (4th Ed.) § 892.
Appellant insists that there was a misjoinder of parties plaintiff, because Sand. & H. Dig., § 7366, provides that “whenever a person usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the state or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise.” While it authorizes either party to institute the action, there is nothing in it prohibiting both from doing so. Either being authorized to do so, we see no reason why both cannot join in bringing the action, or how the defendant can be prejudiced by such joinder.
Many persons voted for the appellant for mayor at the election in question who had not paid their poll taxes, or previously requested or subsequently undertaken to reimburse those who had done so. Other persons paid the tax for them, and delivered to them a receipt of the collector showing that the tax had been paid. Upon exhibiting these receipts to the judges of the election, they were permitted to vote. Appellant contends that they had the right to vote, and their votes should be counted; and appellees insist that they should not be.
The constitution of this state declares that “every male citizen of the United States, or male person who has declared his intention of becoming a citizen of the same, of the age of twenty-one years, who has resided in the state twelve months, in the county six months, and- in the precinct or ward one n^ontli, next preceding any election at which he may propose to vote, except such persons as may for the commission of some felony be deprived of the right to vote by law passed by the general assembly, and who shall exhibit a poll tax receipt or other evidence that he has paid his poll tax at the time of collecting taxes next preceding such election, shall be allowed to vote at any election in the state of Arkansas,”etc. Arndt. No. 2. The object of the requirement of the receipt or other evidence of the payment of the poll tax is to make the payment of the tax by the elector a condition upon which he "shall be allowed to vote, and to prohibit him from voting until he does so. We conceive the object and intent of this provision of the constitution to be not only to induce the citizen to whom the right of suffrage is granted to contribute to the support of the common schools, for which the tax is levied, but to exclude from voting the citizen who does not take an interest in the welfare of his country or value his vote sufficiently to pay a poll tax. He, however, need not pay the tax in person, but may in good faith authorize another to pay it for him, or, if another has done so without having been previously authorized, he may adopt or ratify the act, but he must do so with a bona fide intent and promise to reimburse him. In this way only can the voter be secured in the free and untrammeled exercise of his right of suffrage. The acceptance of the payment of a poll tax as a gift tends to induce him to so vote as to please the partisan, candidate or other person, who paid the same for him. This is contrary to the spirit of the requirement of the constitution. Contested Election of Harry White, 4 Pa. Dist. Rep. 363, 372, 373; Humphrey v. Kingman, 5 Met. 162; McCrary on Elections (4th Ed.) §§ 109, 110:
In Pennsylvania the organic law declares: “Every male citizen, if twenty-two years of age or upwards, who shall have paid a state or county tax which shall have been assessed at least two months, and paid at least one month before the election, shall be entitled to vote at all elections.”' 'In speaking of this provision, the court, in' Contested Election of Harry White, supra, said: “The plain intent of the law is to secure the purity of the ballot and the freedom of the voter in his right of suffrage. The voter is supposed to have either a defined political faith to which he adheres, or the candidate is possessed of qualifications which the voter admires, and, if permitted to have freedom in his choice, he will cast his ballot either in support of the principles of his political faith, or for the candidate or candidates whose qualifications for office he recognizes as superior. Now, anything, either in payment of taxes for him or in any other way, which will induce the voter to cast his ballot; contrary to his will, and his choice unchanged, is but a species' of bribery, and cannot be tolerated by the law. It may, by some, be said that there are voters who do not have any political faith or choice as to candidates. In reply to such, we say that if there are voters of this character, and they wish to exercise the right of suffrage, they should be encouraged to make a choice by political committees, partisans and candidates refraining from offering to them any inducement by paying their taxes, or in any other way, to secure their votes.” These remarks of the Pennsylvania court are appropriate in this case.
Excluding the votes of those persons who had not paid their poll taxes, as required by the constitution, and all other illegal ballots, and counting only the legal, we think the evidence shows that Watson was elected mayor; and that the judgment of the circuit court should be affirmed; and it is so ordered. | [
116,
108,
-72,
46,
58,
0,
18,
40,
10,
-119,
-26,
-45,
-23,
-63,
1,
57,
-69,
125,
-15,
89,
-28,
-89,
3,
98,
-94,
-41,
-21,
-57,
-77,
-59,
-3,
-1,
92,
120,
-54,
-35,
-58,
110,
-113,
-36,
-58,
-85,
-85,
108,
90,
66,
48,
123,
114,
-117,
113,
46,
-7,
46,
21,
-37,
-20,
36,
-39,
-108,
-55,
59,
-56,
93,
77,
22,
-127,
38,
-101,
-125,
90,
46,
-40,
49,
-60,
-8,
115,
-90,
2,
-44,
69,
-103,
12,
98,
102,
56,
-3,
-81,
-88,
-117,
44,
-90,
-99,
-90,
-106,
97,
75,
8,
-74,
-105,
94,
-112,
-123,
-10,
33,
-28,
17,
46,
6,
-49,
-108,
-85,
79,
32,
-108,
3,
-39,
31,
52,
116,
-51,
114,
-44,
71,
50,
-101,
-121,
-48
] |
Thomas C. Trimble, Jr.,
Special Justice. Appellee, State of Arkansas, through her Attorney General, filed suit against the State Note Board, attacking as unconstitutional § 17 of act No. 15, passed at the second extraordinary session of the Legislature of 1932, the same being in words and figures as follows, to-wit:
“ Section 17. It shall be the duty of the State Note Board to issue short-term notes in lieu of all legal vouchers or warrants now or hereafter issued for work, labor, materials, or supplies, heretofore done or furnished by any contractor, subcontractor, materialman or laborer in the construction, maintenance or repair of the State Highways or for the State Highway Department upon request being made therefor by the legal holder or holders of any such obligations; such short-term notes to be in substantially the form of the short-term notes heretofore sold by said State Note Board for the State Highway Commission and executed in the same manner, bearing-interest at the rate of 5 per cent, per annum from the date of issuance, and not more than $750,000 worth of snch notes shall mature on February 1, 1934, and the maturities of the balance thereof shall be equally divided, one-half to mature on February 1, 1935, and one-half to mature on February 1,1936. The State Note Board shall use its discretion in arranging the maturity dates of the various notes issued so that any of such legal holders of said obligations shall not be given preference as to the maturity date of the notes issued to him. Said short-term notes shall be in denominations of $100, $500 and $1,000, and, if the amount due any of the legal holders of such obligations is less than the amount which can he paid by notes of those denominations, then such legal holder may pay the difference in cash and receive such note, or he may take from the State Highway Commission a voucher showing the balance that is due him and which cannot be paid in notes of that description, and which voucher shall be paid as soon as there shall be in the State Highway funds moneys available for the purpose; provided, this act shall not validate any claim, voucher, or warrant or other evidence of indebtedness issued under or pursuant to an illegal contract, and provided further that no note or notes shall be issued in lieu of any such claim in excess of $150, where such claim is based on a cost-plus contract or a contract not let on competitive bidding until such claim is approved and the issuance of such notes are authorized by the State Highway Audit Commission, or until the validity of such claim is finally adjudicated and determined by a court of competent jurisdiction. No additional highway bonds or highway notes shall be authorized, issued or sold in the calendar year of 1932, except those highway notes provided for in this section of this act to be issued in lieu of legal vouchers or warrants for work, labor, material or supplies heretofore done or furnished by any contractor, subcontractor, laborer or materialman in the construction, maintenance or repair of the State Highways, or for the State Highway Department, and not more than $1,750,000 worth of highway bonds shall be issued in the calendar year of 1933 or in any calendar year thereafter, this being the approximate amount necessary to match Federal aid and thereby prevent the loss of such aid; and no highway bonds shall hereafter be issued except with the approval of a majority of the State Note Board including the Governor, or with the approval of at least seven members of the State Note Board, nor shall any highway bonds be issued in any year in excess of the amount of Federal aid allotted to Arkansas under Acts of Congress for that particular year. No bonds or other evidences of indebtedness shall ever be sold under the provisions of this act for less than par.”
The ground upon which the validity of the statute was assailed being that said section was not within the purview of the Governor’s proclamation convening the General Assembly, and asking that the State Note Board, which met and adopted resolutions for the issuance of $2,100,000 in short-term State notes as provided under said section of said act No. 15, be forever enjoined and restrained from causing the printing or lithographing of said State notes and from issuing the same.
Appellant demurred to the complaint because it did not state a cause of action, and that the appellee was not entitled to the relief prayed for, and that the said State Note Board was acting within its authority in issuing the notes mentioned in the complaint.
The demurrer to the complaint was overruled, and the appellant elected to stand on its demurrer, and a decree was rendered perpetually enjoining the board from issuing said short-term notes.
The sole question involved is whether or not the provisions of § 17 of said act are reasonably within the purposes specified within the Governor’s call.
The Constitution of 1874, in reference to extraordinary sessions of the General Assembly, contains the following provisions, to-wit: “The Governor may, by proclamation, on extraordinary occasion convene the General Assembly at the seat of government or at a different place, if that shall have become, since their last adjournment, dangerous from any enemy or contagions disease, and lie shall specify in Ms proclamation the purposes for which they are convened, and no other business than that set forth therein shall be transacted until the same shall have been disposed of, after which they may, by vote of two-thirds of all the members elected to both houses, entered upon their journals, remain in session not exceeding fifteen days.”
The General Assembly of the State of Arkansas convened in special session on March 15, 1932, by proclamation of the Governor of the State of Arkansas, same having been issued on March 12, 1932, that part of the call affecting this suit being as follows, to-wit:
“First. To authorize the issuance of revenue bonds that will bring about an extension of the maturity dates of the road district bonds which the State is now paying under the Martineau road law and thereby prevent a default in the payment of such bonds, and render available sufficient funds for the maintenance of the State Highways and for matching Federal aid for new construction. ’ ’
As will be observed from the proclamation of the Governor, and the act passed by the General Assembly, said call was made for the following reasons: First, to prevent a default in the payment of the road district bonds which the State was paying under the Martineau road law. Second, to render available sufficient funds for the maintenance of the State Highways. Third, to render available sufficient funds for matching Federal aid for new construction.
All of the above subjects are so closely connected and dependent upon each other that no one of them can be entirely segregated from the whole and treated by itself. Act No. 15 embraced all of the subjects and made provisions for each.
The rule announced in decisions of this court, in the cases of Jones v. State, 154 Ark. 288, 242 S. W. 377, and Sims v. Weldon, 165 Ark. 18, 263 S. W. 42, are to the effect that lawmakers when convened in extraordinary session, “may act freely within the call and legislate upon any or all of the subjects specified, or upon any part of a subject; and every presumption will be made in favor of the regularity of its action,” and that the provisions of the Constitution in question merely require the Governor “to confine legislation to particular subjects and not to restrict the details springing out of the subjects enumerated in the call,” and is supported by many other authorities. 59 C. J. 527; State v. Shores, 7 S. E. 31 W. Va. 491, 413, 13 Am. St. Rep. 875; Stockard v. Reid, 57 Tex. Civ. App. 126, 121 S. W. 1144; In re Governor’s Proclamation, 19 Colo. 333, 35 Pac. 530; In re Amendments of Legislative Bills, 19 Colo. 356, 35 Pac. 917; McKee v. English, 147 Ark. 449, 228 S. W. 43; Road Imp. Dist. v. Sayle, 154 Ark. 551, 243 S. W. 825.
The subject embraced in the call should be considered and construed in its entirety and not in subdivisions or detached parts, giving the language its ordinary meaning. In re Likins, 223 Pa. 456, 72 Atl. 858.
As has been observed, the purposes, as indicated in the proclamation, for the calling of said extraordinary session of the General Assembly, were for the three reasons above set forth. The use of the language authorizing the Legislature to issue revenue bonds was merely a suggestion as to how to dispose of the subject-matter designated in the call, and while the Governor may make such suggestions, such suggestions or directions are not binding on the Legislature or restrictive of the legislative power, and the action of the Governor in prescribing in his call the character of bonds to be issued to bring about the necessary legislation is treated as being merely advisory. 25 R. C. L. 805.
“It was never contemplated by the Constitution that the Governor should restrict the Legislature as to details, methods or manner in bringing about the end sought.” Ex parte Fulton, 86 Tex. Cr. R. 149, 215 S. W. 331.
“Specific instructions on the subject-matter in the call can, at best, be regarded only as advisory and not as limiting* the character of legislation that might be had upon the general subject.” People v. Johnson, 23 Colo. 150, 46 Pac. 681.
We are not unmindful of the fact that the construction of the Legislature is not conclusive upon the court, and too great a latitude might abrogate the restrictions of the Constitution, yet it is entitled to the highest consideration by the court. Long v. State, 58 Tex. Cr. R. 209, 127 S. W. 208.
In the case of State v. Clancy, 30 Mont. 529, 77 Pac. 314, the court said:1‘ The Governor can not in advance tie the hands of the Legislature. Any enactment which will meet the ends sought to be accomplished in his call must be deemed to be embraced within the limits of the subjects submitted for consideration. That a liberal rule for interpretation of these proclamations has been generally applied, to the end that the legislation enacted in pursuance thereof be operative, is apparent from adjudicated eases.”
We are therefore of the opinion that said § 17 of act No. 15 is within the purview of the Governor’s call, and that a fair, reasonable and correct construction of the proclamation authorized the legislation in question. This case will therefore be reversed, remanded with directions to sustain the demurrer, and for further proceedings according to law and the principles of equity and not inconsistent with this opinion.
Kirby and Mehaffy, JJ., dissent.
Humphreys, J., disqualified and not participating. | [
48,
107,
-44,
124,
11,
97,
26,
-102,
83,
-93,
37,
83,
-23,
-64,
20,
73,
-17,
-19,
117,
104,
-25,
-73,
119,
72,
50,
-13,
-7,
-43,
125,
95,
-4,
87,
72,
112,
-54,
85,
71,
-30,
-63,
92,
78,
40,
-119,
-24,
-39,
-39,
48,
-1,
82,
-113,
113,
-57,
-31,
45,
16,
79,
108,
45,
89,
58,
-63,
-78,
-101,
-115,
125,
20,
-109,
39,
-102,
7,
-40,
15,
-104,
51,
-111,
-8,
114,
-90,
-62,
68,
109,
-103,
8,
98,
102,
18,
53,
-25,
-100,
-88,
54,
-14,
-83,
-89,
18,
121,
10,
12,
-106,
-108,
124,
-108,
66,
94,
-22,
5,
31,
108,
15,
-118,
-76,
-95,
-113,
108,
-108,
3,
-17,
-125,
48,
117,
-52,
-11,
93,
87,
58,
-101,
-114,
-111
] |
Smith, J.
This is a suit between two sisters over the distribution of the estate of Denny Reed, their father, and involves also a controversy over a balance of unpaid purchase money alleged to be due appellee, who was-, the plaintiff below, by appellant;
The only question we need now consider is the competency of the evidence by which appellee sought to show the amount of property owned by her father at the time of his death.
The estate which formed the subject-matter of this litigation was not a valuable one. Appellee alleged that her father, owned, at the time of his death, $360 in money, and various notes, payable to his order, a list of which is set out in the complaint, and it was charged that appellant had appropriated this money, as well as the proceeds of several of the notes which she had collected, and that the uncollected notes were in appellant’s possession and claimed by her individually.
The sheriff of the county was appointed administrator of Reed’s estate, and, in a conversation with appellant about the assets of the intestate, was told that he had hardly left enough money to pay the funeral expenses. Appellant -became a witness in her own behalf, and, upon her cross-examination, was compelled to make certain damaging admissions in regard to statements contained in a letter written by her to the administrator in regard to the amount of money in her father’s possession at the time of his death, and her ownership of certain of the notes. She was not interrogated about any of these matters in her direct examination; and it is insisted that error was committed in permitting a cross-examination thereon, it being urged that, for this purpose, the witness should have heeu called by appellee and made her own witness. A witness named Skidmore was permitted, over appellant’s objection, to testify that Reed told him, two years before his death, that he was worth between seven and eight hundred dollars, but that no one was present at the time but Seed and himself.
Appellee was asked, while upon the witness stand, how she knew how much property her father owned at the time of his death, and answered, “My father told me,” and she was then asked, “How much did he say he had?” But an objection was sustained to this question, and no answer was given. Upon her cross-examination, she was asked, ‘ ‘ How do you get your information as to how much money and notes your father owned, that you allege in your complaint he owned, at the time of his death,” and answered, “My father told me.” Whereupon, the court held that, since the witness had stated, in response to the question by appellant, the source of her information, she might also answer the question asked by appellee to which the objection had been sustained, and she then stated that her father told her he owned the money and notes set out in the complaint, and that the conversation occurred some time before his death.
It is argued by appellee that this question by appellant “threw down the bars,” and rendered competent the testimony in regard to Reed’s declarations concerning the amount of property owned by him. We can not agree, however, that such was its effect. Appellant had the right to ask the source of the information upon which appellee based a statement of fact. It is true the witness had already answered the question, but no objection was made to it when asked by appellant on account of the fact that it was being asked the second time. The answer to the question disclosed that the facts recited in the complaint were hearsay, and the development of this fact did not justify proof of the details of this hearsay evidence. But such evidence was admitted when the court permitted appellee to testify what her father had said, and in per mitting Skidmore to testify concerning the statements alleged to have been made to him.
We think no error was committed in permitting appellee to cross-examine appellant upon questions which had formed no part of the subject-matter of the direct examination. In 40 Cyc. p. 2500, it is said: “In England, and in some of the United States, the cross-examination of a witness may extend to every issue in the case, regardless of the scope of the direct examination. But the more general rule is that the cross-examination should be confined to matters which have been brought out on the direct examination, and if the cross-examining party wishes to obtain the testimony of the witness as to other matters, he must do so by calling the witness to the stand as his own, and subjecting him to direct examination in regard thereto. ’1
Cases from many states are cited which explain the practice in those states.
In the case of St. Louis, Iron Mountain & So. R. Co. v. Raines, 90 Ark. 398, this court considered the question of the proper practice where a party attempts to cross-examine a witness offered by his adversary upon matters not connected with the direct examination. The court there announced the different rules upon the subject, and stated that the rule which had been followed by the majority of the courts of America accorded with that announced in.the case of Austin v. State, 14 Ark. 558, where it was said:
“Upon an examination of the authorities, we think that the decided preponderance in the American courts is in favor of confining the right of cross-examination to those facts and circumstances only connected with the matters actually stated in the direct examination of a witness ; and that, if the cross-examining party wishes to examine the witness as to other matters, he must do so by making the witness his own, and calling him as such in the subsequent progress of the case.”
It was recognized, however, in the case of Railway v. Raines, supra, that the trial court had a discretion in following this rule, and that a canse would not he reversed where the rule approved had not been followed, unless an abuse of discretion was shown. No abuse of discretion is shown here. The witness was the appellant herself, and she was being interrogated about her own statements, which could not have formed the subject-matter of the direct examination.
Objection was also made to the action of the court in admitting in evidence a letter written by appellant to the administrator concerning the property which had come into her hands. This evidence was admissible against her, not only to contradict her, but as substantive matter showing the quantity and value of the property which she had received.
Other questions are raised in the briefs, but we do not regard them as of sufficient importance to require discussion.
For the error indicated, the judgment is reversed and the cause remanded for a new trial. | [
-80,
109,
-116,
-67,
-117,
32,
42,
40,
-63,
-61,
53,
83,
109,
66,
5,
41,
118,
125,
81,
107,
-57,
-77,
62,
34,
122,
-77,
-71,
-42,
-80,
-52,
-2,
-42,
76,
32,
74,
77,
98,
-118,
-27,
80,
14,
8,
40,
-17,
-39,
-46,
48,
-93,
86,
77,
113,
-34,
-77,
40,
-75,
94,
12,
46,
127,
-87,
88,
-87,
-117,
5,
95,
7,
-78,
-105,
-68,
9,
-56,
10,
-40,
53,
0,
-32,
51,
-90,
-122,
-12,
103,
-103,
8,
102,
98,
33,
-59,
-27,
56,
-104,
47,
54,
-99,
-89,
-46,
120,
65,
105,
-68,
-99,
120,
80,
43,
-4,
-20,
93,
93,
96,
9,
-113,
-42,
-109,
29,
-76,
-120,
18,
-18,
-71,
96,
81,
-39,
2,
92,
103,
116,
-103,
-122,
-5
] |
McCulloch, C. J.
This is an action instituted by the Manley Carriage Company against Fowler & Hill, a copartnership, to recover the amount of a negotiable note in the sum of $40, executed by defendants to the Embree Carriage Company, and by the latter transferred before maturity to the plaintiff. The trial of the cause before a jury resulted in a verdict in favor of the defendants, and the plaintiff has prosecuted an appeal to this court.
The plaintiff is a Missouri corporation engaged at the city of St. Louis, in the business of manufacturing and selling carriages and buggies, and the defendants reside at Malvern, Arkansas, where they are engaged in the livery business. In the spring of the year 1914 defendants purchased buggies and other articles from one J. GK Embree, who was also engaged in the buggy business in St. Louis under the style of the Embree Carriage Company, the aggregate price of the purchases being the sum of $160, and defendants executed therefor four negotiable notes, each in the sum of $40, dated April 1,1914, and payable to the Embree Carriage Company on April 15, June 15, August 15 and October 15,1914, respectively. Embree had an arrangement with the plaintiff to the effect that when he sold buggies or other articles manufactured by the plaintiff the latter would fill the order for him and re eeive from Mm the cash and notes obtained in settlement from the purchasers. The sale to defendants was handled in this manner, and on May 22, 1914, Embree delivered three of the notes to plaintiff properly endorsed and also paid over to them the sum of $37.35, which he had received from the defendants. Subsequently the defendants paid off two more of the notes, and this suit is on the note payable October 15, 1914; the last note of the series.
Defendants pleaded payment and undertook to prove that they paid off each of the four notes. The testimony adduced by the defendants tends to show that the four payments were made. They testify that Embree came to Malvern on or about April 15, and that they paid him the sum of $33 in discharge of the first note, after a deduction was made for freight charges; that they paid the amount of another note to Embree in the city of Malvern on May 15, 1914, this payment being made by check on a local bank; that they paid the third note on July 6, 1914, and paid the last note on April 22,1915.
The testimony adduced by the plaintiff is that on May 22, 1914, Embree mailed to the plaintiff from Malvern $37.35, received from defendants, and the three notes due respectively June 15, August 15 and October 15,1914. The ¡two payments respectively of July 6,1914, and April '22, 1915, were made to the plaintiff. The first of those notes was forwarded to a bank at Malvern and collected • there. The second one was collected by Mr. Duffie, an attorney at Malvern, to whom the notes were sent for collection. Two notes were sent to Mr. Duffie and defendants paid one but refused to pay the other—the one now in suit.
The contention of fact between the parties arises over the alleged payment made by the defendants to Embree on April 15, 1914. The evidence was, sufficient to warrant the jury in finding that that payment was made as contended by defendants, but it was a payment in discharge of the first note, which was never assigned to the plaintiff and was never surrendered to the defendants, ac cording to their testimony. No information was given to the plaintiff concerning that payment, if it was in fact made to Embree, as claimed by the defendants. They testify that they paid Embree $33, but there is no testimony tending to show that the amount was ever paid over to the plaintiff. The amount of the second payment, which was made on May 15, was sent in to the plaintiff as a cash payment when the three notes were assigned and delivered to the plaintiff. Defendants claim that that payment was made in satisfaction of the second note, but they did not demand the surrender of the note and Embree assigned it to the plaintiff before maturity together with the other two notes.
Plaintiff was an innocent purchaser of the notes, and the payment by the defendants without surrender of the notes was not effective as a satisfaction against an innocent holder. There is not the slightest thing in the record to impeach the good faith of the plaintiff in the transaction, or'to show that it was not an innocent purchaser. It is undisputed that the plaintiff received the notes for value, and the burden was on the defendants to show that the plaintiff received notice of the alleged payment to Embree before they delivered the notes. Notwithstanding the fact that there is sufficient evidence to warrant a finding that payment was made to Embree in April, we are of the opinion that the verdict of the jury is not supported by the testimony as to the payment covering the last note, now sued on. There appears to have been some confusion about the numbering of the notes in the series, but it is undisputed that the note payable October 15, 1914, is the one now in suit, and is the only note held by the plaintiff, the other two having been surrendered when paid. The first note, which became due on April 15,1914, does not appear in the record, it never having been assigned to the plaintiff and defendants did not produce it. They say that Embree did not surrender it to them.
It follows, therefore, that the defendants have failed to sustain their plea of payment, and that the verdict in their favor was unsupported by the evidence. The judgment is, therefore, reversed, and the cause is remanded for a new trial. | [
-14,
124,
-96,
-49,
90,
-32,
40,
26,
-63,
3,
36,
91,
-23,
-64,
1,
97,
98,
93,
81,
107,
-28,
-77,
7,
99,
-62,
-109,
-5,
71,
-75,
65,
-76,
-41,
92,
48,
-54,
93,
-126,
-62,
-59,
28,
-34,
12,
42,
-64,
89,
89,
52,
120,
21,
15,
97,
-114,
-114,
47,
22,
79,
105,
106,
-21,
-101,
-48,
-15,
-102,
71,
31,
22,
-127,
100,
-112,
5,
72,
46,
-104,
53,
25,
-24,
114,
-90,
-122,
84,
97,
-119,
12,
34,
102,
35,
-127,
-81,
-104,
-116,
38,
-102,
-115,
-89,
-94,
109,
51,
107,
-98,
-99,
90,
18,
-121,
-46,
-6,
29,
17,
44,
7,
-113,
-106,
-125,
47,
102,
20,
27,
-5,
43,
54,
112,
-116,
114,
92,
87,
62,
-101,
-122,
-111
] |
Hart, J.
Mrs. M. 0. Briggs instituted this action in the chancery court against I. E. Moore to cancel and >set aside certain deeds which she claimed were executed with the intention to defraud her of her dower and homestead interest in the lands embraced in the deeds.
The chancellor found the issues in favor of the defendant and entered a decree dismissing her complaint for want of equity. She has appealed to this court. A part of the facts are undisputed and are as follows:
S. R. Briggs died intestate on the 8th day of November, 1905, in Cleveland County, Arkansas, and at the time of his death owned and occupied as his homestead one hundred and twenty acres of the lands involved in this suit. He was survived by his widow, Mrs. M. 0. Briggs, the plaintiff in this action, and by W. R. Briggs, a son and Etta Poteet, his daughter. After his death, while the plaintiff resided with her daughter and her husband, they all executed a deed to their interest in the homestead to Lee Rogers. The latter in turn executed a deed to the homestead to W. R. Briggs. A few months thereafter, W. R. Briggs executed a deed to the defendant, I. E. Moore, to said lands.
Mrs. Briggs resided with her daughter at the time they executed the deed to Rogers, but soon afterward went to live with her son and lived with him on the homestead at the time he conveyed it to the defendant Móore. Prior to his death, S. R. Briggs had given the hundred acres involved in this suit to hi's daughter, Etta Poteet, and she and her husband took charge of the land and occupied the same until February, 1907, when they executed a deed to the defendant Moore. No deed was ever executed by S. R. Briggs and his wife to Etta Poteet to the hundred acres involved in this suit. Dower has never been allotted to the plaintiff in either of the tracts involved in this suit. On the 13th day of September, 1912, she instituted the present action asking that the deeds to the defendant Moore to both of the said tracts of land be cancelled and set aside, and that her dower and her homestead interest therein be assigned to her in the one hundred and twenty-acre tract.
(1) Mrs. Briggs testified that she never sold her interest in this land or received anything of value as consideration for signing the deed at the time her daughter Etta Poteet and her husband, Prank Poteet, executed the deed to Lee Rogers. She stated that she signed the deed believing that it was necessary to do so in order to enable Prank Poteet to convey his interest therein; that she was not informed that the deed conveyed her interest in the land until about two years after she had signed it; that soon after she signed the deed she left the residence of her daughter and went on the one hundred and twenty acre tract to live with her son.
She said, on cross-examination, that she had never received any rents from the place and knew that the defendant Moore had had charge of the place ever since the year 1908, and that Lee Rogers had the place during that year. She admitted that her son worked the land a part of that time and paid the rent to Mr. Moore.
Her daughter, Etta Poteet, and her husband, Prank Poteet, both testified that just before they conveyed their interest in the one hundred and twenty acres of the land known as the homestead tract, that ~W. R. Briggs came to see them and wanted them to sell their interest in it to him, and that they refused to do so because W. R. Briggs had refused to help out Prank Poteet in a trade just before that time; that they then made the trade with Lee Rogers and conveyed their interest in the land to him; that Mrs. Briggs fully understood what she was doing when she signed the deed; that they spoke to her about it a week or two after the deed was executed, when they found that Rogers had made a deed to the land to W. R. Briggs; that .the plaintiff laughed and said that she knew at the time she signed the deed that Rogers was buying it for her son..
The justice of the peace who took the acknowledgment of the plaintiff to the deed testified that he explained to her that she had conveyed her interest in the old home place, and that she was selling the land; that about a year before this time he had taken her acknowledgment to an oil deed on the same land, and that he explained to her the difference between the two deeds and told her that she was signing a deed to the land itself the last time.
W. R. Briggs admitted that he conveyed the land to the defendant Moore for $220, and stated that at the time he borrowed about $215. He stated that at that time the land was worth about $360, and that he thought that the transaction was intended to be a mortgage instead of an absolute sale from him to Moore.
On the other hand, Moore testified that the sale was an absolute one and that no effort was ever made by Briggs to pay back to him any money. He stated that after the sale was made he agreed to a resale of the land to Briggs upon the payment of $220 by Briggs on the first day of November, 1908; that no effort had been made by Briggs to pay him that amount; that he had inclosed the whole one hundred and twenty acres with a wire fence, making two separate fields of the land; that he had cleared and put into cultivation seventy-five or eighty acres and had built a little barn, at a cost of $900; that only about twenty-five acres had been cleared when he got possession of the land.
Lee Rogers testified that he bought the old home place for W. R. Briggs, and that the plaintiff knew that he was going to buy the place a week or two before the deed was signed; that she signed the deed without any representation on his part to mislead her, but does not know whether she signed it because she thought she was going to finally get the title to it or because she thought her son was going to get the title to it.
Under these circumstances we think the chancellor was .justified in finding that no fraud was practiced upon plaintiff to induce her to execute the deed to Lee Rogers. It is true she had a homestead interest in the land without executing that deed; but it seems to have been her purpose to give the fee in the land to her son. She does not herself testify as to any misrepresentations made to her by Lee Rogers to induce her to execute the deed. It will be remembered that she lived with her daughter and her husband at the time she executed the deed, and that soon after Rogers made the deed to her and her son took possession of the land, she went there to live with him. Her daughter and her husband both testified that when they found out Lee Rogers had executed a deed to W. R. Briggs in about a week after they had executed their deed to Rogers, they spoke to Mrs. Briggs about this fact, and she seemed pleased to know that her son had acquired title to the land and said that she had known that the land was to be conveyed to him by Rogers before she signed the deed. According to the testimony of Rogers, he bought the land either for Mrs. Briggs or her son, but did not know which. It is evident that he made no misrepresentations to the plaintiff, and thought that the plaintiff and her son had an understanding about the matter. This view is also borne out by the testimony of her son. He stated that his mother knew that he had acquired title to the land and had conveyed it to the defendant Moore. So it seems that she signed the deed in question in order that her son might eventually acquire title in fee to the land. This was a sufficient consideration and we are of the opinion that the chancellor did not err in holding that she was not induced by fraud to execute the deed to the hundred and twenty acre tract.
In this view of the case, it does not make any difference whether the sale from W. R. Briggs to Moore was an absolute or conditional sale. W. R. Briggs is not a party to this suit, and his rights in the land are not in issue. The interest of the plaintiff! in the land was divested out of her by the deed to Lee Rogers, and she is not concerned in the transaction between W. R. Briggs and the defendant Moore.
(2-3) According to the testimony of Etta Poteet and her husband, her father in his lifetime first gave her sixty acres of land, and she and her husband went into possession of it. Subsequently her brother Charles died, and her father gave her an additional forty acres, making one hundred acres in all; that no deed was ever executed by S. R. Briggs and his wife to their daughter or her husband, but that they lived on this land for over seven years before S. R. Briggs died; that the land was regarded as belonging to them, and they continued to live on it for about two years after the death of S. R. Briggs until they conveyed it to the defendant Moore.
The plaintiff admitted that- they had given to their daughter eighty acres of land and permitted her and her husband to go on it, and that they had lived on it and claimed it as their own for seven or eight years. This eighty acres referred to by her was part of the hundred-acre tract involved in this lawsuit.
The defendant Moore testified that he paid Etta Poteet and her husband the full Avalué of the land at the time he purchased it; that he asked the plaintiff if the land belonged to them, and that she, her daughter and her daughter’s husband all said that the land belonged to Etta Poteet; that he asked W. R. Briggs if the land belonged to Etta Poteet, and he said that it did and that his father had given her the land; that he knew that Etta Poteet and her husband had lived on the land ten or twelve years, and had sold the timber off of it before the death of S. R. Briggs; that he had constructed a good wire fence all around the hundred-acre tract and had cleared thirty-five acres of it and repaired buildings; that the value of the fences built by him on this tract is $375, and the value of all the improvements is $450.
It is true that plaintiff denied that she told Moore that the hundred acre tract belonged to her daughter. She stated that Moore asked her one day if she and her husband had ever made a deed to the land to the Poteets, and that she replied that they had not; that she told him that the Poteets did not have any title and that she did not know when they would get one. Be that as it may, as we have just seen, the plaintiff admitted that they had given to their daughter eighty acres of this land, and that she had occupied it with her husband for seven or eight years before S. ft. Briggs died. They paid taxes on the land during all the time they occupied it and in. every respect treated it as their own with the knowledge of S. R. Briggs and his wife, the plaintiff in this case. They sold the timber off of the land during the lifetime of S. R. Briggs.
Under these circumstances we think the chancellor was right in holding that the plaintiff was not entitled to have the deed from Etta Poteet and her husband to the defendant Moore set aside. A preponderance of the evidence shows that S. R. Briggs and his wife gave the hundred acre tract to the Poteets and put them in possession of it. Defendant was a purchaser of the land for a valuable consideration in good faith from the Poteets and under these circumstances the plaintiff would be estopped from asserting an adverse title thereto.
The decree will be affirmed. | [
-16,
108,
124,
44,
40,
-32,
58,
-120,
82,
-120,
37,
-45,
-17,
-58,
1,
61,
104,
45,
81,
109,
70,
-77,
71,
-96,
82,
-45,
83,
-35,
-71,
77,
-10,
-41,
12,
32,
-62,
29,
-61,
32,
-59,
-40,
-114,
69,
-118,
-51,
93,
80,
62,
99,
84,
77,
97,
46,
-13,
43,
53,
67,
108,
46,
-21,
-68,
88,
-7,
-98,
-121,
127,
7,
1,
7,
-106,
-127,
72,
74,
-112,
23,
-96,
-24,
115,
-74,
-122,
116,
78,
-117,
8,
98,
99,
42,
-20,
-17,
56,
8,
47,
-66,
-99,
-90,
-30,
72,
67,
44,
-66,
-99,
120,
-112,
95,
-12,
-20,
-124,
92,
104,
-113,
-49,
-42,
-127,
-123,
56,
-126,
11,
-13,
-115,
50,
113,
-49,
-30,
93,
101,
48,
-101,
7,
-5
] |
McCulloch, C. J.
This is an action instituted by appellee against appellant to recover damages alleged to have been sustained by" the breaking of a dam constructed by appellant across Tyronza River. Appellee was engaged in getting out saw logs and floating them down Tyronza River to market, and he placed a large quantity of logs on the hank of Tyronza River preparatory to loading them in the river when the stage of water should become favorable for rafting and floating. The logs were placed at the dumping ground in the month of October, 1914, and remained there until they were washed away by a flood of high water on January 31, 1915. Appellant and another ditch contractor constructed a dam across the river a short distance above the dumping ground occupied by appellee in piling his logs, and an unusually heavy rain occurring on January 30 and 31 caused the dam to break. It is alleged in the complaint that when the dam broke the accumulated water, by reason of the obstruction and of the excessive rainfall, caused an unusual rush of water down the river which washed the logs away from the high bank. Many of the" logs were lost entirely and others recovered at considerable expense. The jury assessed damages in favor of appellee in the sum of $425.56, and it is not contended that the amount awarded is excessive. The trial court in its charge to the jury stated that it was undisputed that appellant participated in the construction and maintenance of the dam, and that the only issue to be determined was whether or not the loss complained of by appellee was caused by the maintenance and breaking of the dam. It is contended that the court was wrong in this instruction and that further issues should have been submitted to the jury to determine whether or not the construction and maintenance of the dam constituted negligence and whether or not appellant, under the circumstances, was responsible for the injury. Appellant defended on the ground that the construction and maintenance of the dam was an essential part of the construction of a certain improvement undertaken by him under his contract with the drainage district, and that the drainage district, rather than the contractor, was responsible for any injury which resulted.
Grassy Lake and Tyronza Drainage District No. 9, Mississippi county, was a district formed for the purpose of constructing a system of ditches, and appellant entered into a contract with the district to dig two of the ditches embraced in the system, one being designated as Ditch No. 1 and the other as Ditch No. 40. Ditch No. 40 emptied into Tyronza River on the east side a short distance above the place where the dam was constructed. Ditch No. 1 began at the foot of Spear Lake about two miles west of Tyronza River, and thence ran southwesterly and emptied into the St. Francis river. The ditches were constructed by means of a large dredging boat, and when appellant finished the construction of Ditch No. 40 it was necessary to find means to transport the boat to the point where Ditch No. 1 was to begin at the foot of Spear Lake. The head of Spear Lake is about one-half mile from Tyronza River and there is a small bayou which connects the two bodies of water. The only way to get the boat from Tyronza River over to the beginning of Ditch No. 1 was to raise the water in Tyronza River so that there would be enough water for the boat to dredge its way through the bayou into Spear Lake and thence through Spear Lake to the beginning point of Ditch No. 1. The engineer of the drainage district procured from the owners of the land through which the bayou ran a right of way for the use of the bayou in getting the dredge boat through, and appellant used the way under that license. The dam in question was built pursuant to the aforementioned plan for getting the boat over to the place where the work on Ditch No. 1 was to be commenced. The contention of appellant is that the state of facts related above brings the case within the rule that a contractor for the construction of a public improvement under contract with an improvement district or other public agency is only liable for negligence or unskillfulness in the performance of his work, and is not responsible for injury inflicted by acts which constitute “an essential part of constructing the work contemplated by the organization of the district.” We do not think that the facts of the ease bring it within that rule, but on the other hand that the construction and maintenance of the dam was solely for the convenience of the contractor in transporting his equipment. If injury resulted from the damming of the stream the contractor alonéis responsible. In Foohey Dredging Co. v. Mabin, 118 Ark. 1, we said: “An independent contractor is not liable except for negligence or unskillfulness in the performance of his work, and if he confines himself to a skillful performance of the work he has contracted to do, he is not responsible for damages which necessarily result from the construction of the work. He can not, however, escape liability merely on the ground that the method of construction was necessary for his own convenience in performing the contract. Now, the contract in this case shows that there was a time limit for its performance, but appellant could not justify itself for damages inflicted solely on account of that feature of the contract. In other words, it could not assume an obligation which of itself would justify the doing of an injury to someone else. If the instruction had been confined solely to the issue as to whether or not the damming of the ditch was an essential part of constructing the work contemplated by the organization of the district, it would have been correct and should have been given. The jury might have understood from it that the mere fact that it was necessary to construct a dam across the Wilson ditch in order to comply with the contract within the time specified constituted a defense.”
The jury might have found in that case that the damming up of the Wilson ditch was an essential part of the construction of the improvement which the defendant had contracted to perform, and we held, therefore, that it would have been proper to submit that question to the jury. In the present case there is no ground upon which a finding could be sustained that the damming of Tyronza River was a part of the construction of Ditch No. 1 or Ditch No. 40. It was a mere means of transporting the dredge boat from one ditch to another, the two ditches not being continuous or in any way connected together. Even though the engineer of the district obtained the right of way for the dredge boat to pass through the bayou and into Spear Lake, this was done merely for the convenience of the contractor, and the damming of Tyronza River was also for his convenience in supplying water to use in dredging through the bayou. The trial court was, therefore, correct in eliminating that issue from the jury. Nor was there any question of negligence involved in the act, for if the breaking of the dam was the cause of the injury to appellee, who was rightfully using the bank of the stream, the person who constructed and maintained the dam was liable for the damages inflicted, and this is true whether the stream was navigable or non-navigable. L. R., M. R. & T.Rd. Co. v. Brooks, 39 Ark. 403; St. L., I. M. & S. Ry. Co. v. Magness, 93 Ark. 46; St. L. S. W. Ry. Co. v. Mackey, 95 Ark. 297; Taylor v. Rudy, 99 Ark. 128.
The only question in the ease, therefore, was whether or not the breaking of the dam caused the injury, and that question was settled by the jury upon legally sufficient evidence. It is insisted that the evidence is not sufficient to show that the injury resulted from the breaking of the dam, but after careful consideration we are of the opinion that the jury was warranted in reaching that conclusion from the evidence adduced. There was an unusually heavy rainfall, and the evidence warranted the finding that but for the damming up of the waters the flood would have passed away without reaching sufficient height to wash away the logs piled by appellee on the bank, and that the damming up of the river and the sudden rainfall together caused such a great rush of water when the dam broke that the logs on the bank were washed away.
Judgment affirmed. | [
-15,
108,
-72,
-52,
-70,
-30,
104,
-102,
73,
-79,
-15,
83,
-113,
-126,
8,
97,
-29,
125,
-31,
59,
70,
-93,
51,
34,
-13,
-77,
113,
71,
-72,
78,
-36,
71,
76,
48,
-120,
65,
-62,
2,
-59,
-36,
-58,
-122,
-104,
-19,
113,
74,
52,
111,
102,
79,
113,
-97,
-26,
43,
21,
-61,
41,
36,
-49,
40,
81,
-15,
-118,
28,
95,
4,
-95,
-58,
-104,
3,
-54,
58,
-112,
53,
0,
-68,
114,
54,
-108,
-75,
41,
-103,
12,
114,
102,
43,
45,
-17,
-123,
-40,
6,
-2,
-119,
-92,
-40,
88,
2,
-31,
-74,
-99,
116,
80,
70,
110,
-24,
-59,
89,
104,
71,
-57,
-44,
49,
-115,
-92,
-107,
35,
-49,
11,
50,
117,
-49,
-14,
76,
13,
59,
-97,
-121,
-37
] |
Butler, J.
There are a number of interesting* facts connected with this litig’ation, hut which are not essential to its determination, and which we deem it unnecessary to set out. The pertinent facts which are virtually uncon-tradicted are as follows:
A number of the ladies of the town of Gravette, moved by an altruistic spirit, organized themselves into an unincorporated society which they called the Civic Improvement Club. After a time they conceived the idea of purchasing a park to be used by the public, which was to be a memorial to Field Kindley, a young man who had been reared in the town of Gravette by his aunt and who had lost his life in the service of his country. This club located a number of vacant lots which were owned by a nonresident of the town. Two of the ladies were appointed a committee to visit the owner and endeavor to arrange for the purchase of the property. The owner agreed to sell the property for $1,500, giving the club until a certain time to complete the purchase. The ladies immediately proceeded to solicit subscriptions, and in a short time raised $750, but, as the time limit approached they discussed the situation with Dr. Buffington, the mayor of the town, and interested him in their project, and he agreed to, and did, advance from his private funds the sum of $750, which sum, together with the money already raised, made up the purchase price of the property. This was paid to the owner, who conveyed the land by warranty deed to Dr. Buffington. Dr. Buffington stated that he did not remember just why the deed was made to him, but it was evidently done to protect him in the advances he had made. The ladies continued their activities in the matter of raising funds, and soon made up the amount that Dr. Buffington had advanced, and paid it over to him. When this was done, Dr. Buffington secured the service of a resident lawyer, who had died before this controversy arose, to prepare the necessary papers to carry into effect the intentions of the club. He drew a warranty deed conveying the property to the city, but inserted in the deed the following clause: “The abóve-de- scribed ¡property is to be used for public park purposes and is to be under tbe control of the ladies of Civic Improvement Club of Gravette.” This deed was executed in June, 1924, and the Civic Improvement Club entered into possession of- the property and proceeded to improve and beautify it. They erected a monument to the memory of Field Kindley, built a band stand, and otherwise adorned and improved the property.
In 1925 or 1926 the ladies of the Civic Improvement Club incorporated the club under the same name and with the same membership, its charter providing that each member of the unincorporated society was to become and be member of the incorporated society, and such others who might desire to join after the incorporation would be admitted to membership upon the unanimous vote of the charter members and the payment of a fee. The club remained in possession of the property and exercised control over it until shortly before this litigation arose, during which time the town of Gravette had contributed nothing to the purchase price or to the sums required to improve the property, its sole contribution being the furnishing of lights and water for the park to the amount of $36 per year.
There appears to have been no conflict as to the management of the park until August, 1930. It was the custom of the town to have a picnic annually during that month, and for some reason (¡possibly to raise funds for the city treasury) the town council made arrangements with a “carnival” to visit the town, which carnival, at the instance of the town council, came and pitched its tents and appurtenances upon the public park,- over the protest of the club. Just what was said and done by the ladies is not disclosed by the record, but the men began to write articles and to publish them in the town paper about the ladies, which reflected upon the management of the park, and intimated that the ladies were difficult to get along with. The ladies met and called to their assistance nine men of the town, evidently not among those protesting, and designated them as “trustees,” the purpose being to use the trustees as a go-between for the club and the town council with the object of establishing a modus vivendi. These gentlemen were unable to negotiate a truce and, shortly after they had approached the council, the city filed this suit, exhibiting a copy of the deed from Dr. 'Buffington, heretofore referred to, alleging title in itself, and that the ladies of the Civic Improvement Club were setting up claim of control under said deed, and praying that the title be quieted in the town, and that the Civic Improvement Club be enjoined from interfering with, or attempting to exercise control over, the property.
At the hearing before the chancellor, where the evidence above recited was detailed by the witnesses, the court denied the prayer of the complaint, finding the facts to be as stated herein, and decreeing valid the clause in the deed granting control of the property to the Civic Improvement Club, and that legal title to the park was vested in the town of G-ravette (plaintiff), but that the Civic Improvement Club should continue in the control of the property for the use named in the deed.
The appellant challenges the correctness of this decree, and invokes the well-settled rule that, where a grant is made in a deed of the title in fee, a subsequent clause limiting the absolute title, being in irreconcilable conflict with the title conveyed by the granting clause, is void. CarlLee v. Ellsberry, 82 Ark. 209, 101 S. W. 407, 12 L. R. A. (N. S.) 956, 118 Am. St. Rep. 60; Levy v. McDonnell, 92 Ark. 324, 122 S. W. 1002, 135 Am. St Rep. 183; Veasey v. Veasey, 110 Ark. 393, 162 S. W. 45. The appellant contends that the granting clause conveys to the grantee the fee simple title, and that under the rule, supra, the clause quoted is void. It must be conceded that the rule contended for is the one established by our decisions, but the rule is not one of-positive law, but rather one of construction to be applied where there is a clear repugnance between the nature of the estate granted and subsequent clauses in the deed, either in the habendum clause or elsewhere ; for, in such cases, the courts are of necessity compelled to choose between the conflicting clauses, and it is then that the arbitrary rule is invoked. In cases where the intention of the parties may be ascertained from a consideration of the entire instrument and the several clauses may be reconciled, the rule contended for must yield to that cardinal rule of construction that the intention of the parties as drawn from the entire instrument must govern.
“While the cardinal rule of construction is that the intention of the parties as drawn from the whole deed must govern, where such intention is uncertain, resort must he had to well-settled but subordinate rules of construction to he treated as such, and not as rules of positive law, the modern rule being that the intention of the parties when ascertained will prevail over all technical rules of construction; and it has been said that, since the language employed in deeds varies so materially and so much, precedents are rarely controlling in a concrete case, except as they may furnish general aiding rules. Where a deed expresses two conflicting intentions, it must he construed according to the rules of construction, although they may he denominated arbitrary. Further, a construction which will leave the way open for repeated and indecisive litigation should be avoided.” 18 C. J. 252, §197.
“A deed must be construed according to the intention of the parties, as manifested by the language of the whole instrument; and it is our duty to give all parts of the deed such construction, if possible, as that they will stand together; hut where there is a repugnancy between the granting and habendum clauses, the former will control the latter.” Dempsey v. Davis, 98 Ark. 570-573, 136 S. W. 975.
In Whetstone v. Hunt, 78 Ark. 230, 93 Ark. 979, cited in Dempsey v. Davis, supra, the following language was quoted with approval: “If,” says Mr. Washburn, “there is a clear repugnance between the nature of the estate granted and that limited in the habendum,- the latter yields to the former; but if they can be construed so as to stand together by limiting the estate without contradict ing the grant, the court always gives that construction in order to give effect to both.”
An examination of the deed involved in the instant case shows no irreconcilable conflict in its several clauses, but, considered in its entirety, it clearly discloses the intention of the grantor. That intention primarily was to provide a park to beautify the town and promote the rational pleasure of its inhabitants. In carrying out this purpose the town of Gravette and the Civic Improvement Club were constituted qualified trustees, the one to hold the legal title and the other to exercise a power in trust. This trusteeship was divided, perhaps because it might have been the opinion of the scrivener, although erroneous, that the Civic Improvement Club, being only a voluntary association, was not qualified to hold the legal title; that this is true is now insisted by the appellant. It contends that at the time the deed was made the Civic Improvement Club was an entity unknown to the law, without power to hold or convey property. We do not agree with the position taken by learned counsel. It is well recognized that at common law voluntary and unincorporated associations may hold real property, either as the donees of the legal title or the beneficiaries of a trust, and that such associations when organized to promote some purpose beneficial to the general public, or of certain classes thereof, are to be deemed as charitable societies and governed by rules of law applicable thereto. 1 ‘Beach on Trusts, § 317 et seq.
It is true, the right of such organizations to take the beneficial interest in real estate or to hold as trustee for benevolent uses is denied in some jurisdictions, but in others, including our own, that right is recognized and enforced. Biscoe v. Thweatt, 74 Ark. 545, 86 S. W. 432. From a consideration of the evidence, it is unquestionable that the creation of the park had its inception in the minds of the ladies of the Civic Improvement Club, and that they, in fact, were the purchasers, contributing from their own funds (and it is immaterial how these funds were derived) to the purchase price of the property, and Dr. Buffington was merely their agent. The power therefore to administer the trust might well be implied to rest in the club and result from the nature of the transactions. It is unnecessary, however, to fix the interest of the club on that ground, for it has itself spoken through its instrument, and in the deed rests its expressed will. There is an express trust, therefore, by which the town of G-ravette is to hold the naked legal title for the use of the public, such use to be administered through the agency of the Civic Improvement Club, and the property to be under its control. Express trusts are such as are created by the deliberate or intentional act of the grantor, and, in our opinion, the deed in question creates a trust and brings it within this classification. See Bray v. Timms, 162 Ark. 247, 258 S. W. 338; Stacy v. Stacy, 175 Ark. 763, 300 S. W. 437.
Since it appears that by the charter of the Civic Improvement Club, incorporated in 1925 or 1926, all the members of the voluntary association became members of the incorporated society, this ipso facto dissolved the voluntary association and transferred its property and rights to the corporation. 5 C. J., § 18, p. 1338. It follows from the views expressed that the decree of the chancellor is correct, and it is therefore hffirmed. | [
-12,
125,
-48,
-50,
-21,
68,
40,
-70,
66,
-87,
-93,
127,
-85,
-56,
17,
37,
-17,
-19,
84,
107,
-27,
-77,
19,
3,
-78,
-109,
-5,
93,
-77,
77,
-10,
-43,
78,
48,
-54,
-67,
-126,
34,
-35,
94,
-114,
-120,
-118,
64,
-37,
96,
54,
59,
86,
78,
85,
42,
-77,
42,
84,
99,
125,
44,
-49,
57,
81,
105,
-88,
-123,
121,
14,
4,
98,
-99,
35,
-54,
32,
-112,
21,
80,
-8,
83,
-90,
6,
84,
5,
-119,
-51,
34,
98,
1,
-19,
-17,
-96,
-99,
14,
-13,
-119,
-89,
116,
97,
98,
41,
-98,
-97,
119,
-48,
103,
-30,
-25,
-35,
93,
-84,
9,
-114,
-44,
51,
118,
-68,
-104,
-125,
-17,
75,
36,
99,
-60,
126,
93,
-52,
48,
-101,
-116,
48
] |
Humphreys, J.
This suit was brought by appellant against appellee in the circuit court of Hempstead County to recover $472.74 for supplies furnished to her tenants, J. L. Rogers and Wyatt Rogers, during the year 1930, on written order of appellee addressed to appellant. The order was in the form of a letter, and is as follows:
“Mr. Dillard: Luther and Wyatt Rogers are renting land from me. I bought pair of mules, wagon, &c, for them to work; of course, I have mortgage on a team and also on crop. They say you furnished them last year and would like to trade with you this year. I have tried to see you so we could talk this matter over, but weather prevents. So yon talk with them; let them have what they need. I am willing to do what yon require, that is, in a reasonable way. Their note for mules &c is $240 with int. Mr. Wilson is to sell their cotton. I will gladly collect your acet. You can call me if I have not made myself clear. I will hack them up in their trade.
(Signed) “Mrs. David Wilson.”
Appellee filed an answer interposing the defense that appellant furnished unreasonable and excessive amounts of supplies.
The cause was submitted upon the pleadings, testimony adduced by the parties, and instructions of the court, resulting in a verdict and judgment in the sum of $250 against appellee, from which is this appeal.
During the progress of the trial, and over the objection and exception of appellant, the court admitted the testimony of E. E. Hughes, S. H. Bryant and Ralph Rou-ten, to the effect that it was the custom of the trade amongst merchants in this locality to limit the amounts furnished tenants from $100 to $150, situated as appel-lee’s tenants were. The court construed the written order as authorizing appellant to furnish appellee’s tenants only such amounts as were customarily furnished by other merchants to tenants similarly situated, and, over the objection and exception of appellant, instructed the jury that, if it found appellant furnished appellee’s tenants unreasonable and excessive amounts, it should deduct this excess from appellant’s claim.
There is no dispute in the testimony as to the amount and value of the supplies actually furnished by appellant to said tenants.
A reversal of the judgment is sought upon the ground that the court misconstrued the order and erroneously admitted evidence contradicting the terms thereof. It is argued that, under the express terms of the order, appellant was authorized to furnish appellee’s tenants with supplies in unlimited amounts provided no collusion was shown to exist between appellant and the tenants to furnish and receive unreasonable amounts.
Our construction of the order is that it authorized appellant to furnish only such supplies as were reasonably needed by the tenants to pitch and cultivate a one-team crop. Under this interpretation of the order, the court properly admitted testimony as to the customary needs of the tenants, and correctly instructed the jury.
No error appearing, the judgment is affirmed. | [
112,
100,
-68,
-115,
26,
-32,
8,
-102,
66,
-95,
53,
83,
-7,
-42,
81,
29,
-31,
77,
85,
107,
-57,
-73,
68,
98,
17,
-45,
-15,
-41,
-75,
79,
-27,
-41,
72,
53,
74,
25,
66,
-64,
-27,
92,
-50,
33,
-87,
108,
-7,
74,
48,
-85,
116,
67,
65,
-114,
-13,
44,
25,
107,
75,
44,
111,
59,
-40,
-31,
-102,
13,
25,
7,
16,
38,
-102,
1,
74,
76,
-112,
48,
0,
-24,
115,
-90,
-126,
116,
3,
-101,
9,
38,
102,
11,
-91,
-19,
92,
-120,
46,
-2,
-99,
-90,
-78,
8,
122,
64,
-65,
-99,
116,
-48,
23,
118,
-3,
-99,
92,
108,
3,
-113,
-106,
-77,
-115,
48,
-100,
-109,
-29,
-113,
48,
113,
-49,
-94,
89,
71,
16,
-101,
-122,
-22
] |
McHáNey, J.
The late Judge C. T. Coffman executed his will February 21, 1896, in which he appointed his wife, Jean H. Coffman, sole executrix without bond and made her his sole beneficiary. The will provided: “I give, devise and bequeath to my beloved wife,- Jean H. Coffman, all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my death.”
More than 27 years later, on June 9,1923, he executed the following codicil to said will: “Know all men by these presents :■ That I, C. T. Coffman, being of sound and disposing mind and memory, do make and publish this, my codicil to my will, heretofore executed and dated February 21, 1896, being the only will which I have executed and which is now in force. I hereby direct that my said executor, being my wife, Jean H. Coffman, upon my death shall erect at the expense of my estate a suitable monument,- in case same has not already been erected during my lifetime. It is my will that all property left by me to my wife which has not been used or expended by her during her lifetime be donated and turned over to the City Hospital of Little Bock, as a memorial to her and to me and to be used by the management of said hospital in such manner as they may deem to the best interest of same.”
Thereafter, on October 14,1925, Judge Coffman died without issue, and three days later the above will and codicil were probated, Mrs. Coffman being appointed executrix, in accordance with the directions of the will.
On February 2, 1932, the said Jean H. Coffman died testate, undertaking by her will to dispose of all the property of which she died seized, including all the property which came to her by the will of her husband, and ignoring the direction contained in the codicil to the will of her late husband that all property left by him to her “which has not been used or expended by her during her lifetime be donated and turned over to the City Hospital of Little Bock, as a memorial to her and to me,” etc. Numerous beneficiaries are named in her will, many of whom are related to her collaterally, a few to him, and several bequests of a charitable nature. Appellee Lenon was named executor in the' will which was probated.
Appellant brought this action against the executor of her will and all devisees and legatees named therein, praying that the will of Judge Coffman be construed, the executor of Mrs. Coffman’s will be enjoined from proceeding under her will until its rights were determined, and that he be ordered to turn over to it all the assets in his hands belonging to the estate of C. T. Coffman. Trial resulted, in a decree against appellant, the court holding, under the will and codicil óf C. T. Coffman, that his widow took fee simple title to all his property, and that her devisees and legatees became vested with the same title to the respective properties devised and bequeathed to them in her will. This appeal followed.
We are all agreed that by the original will of Judge Coffman, his widow, Jean H. Coffman, would have acquired fee simple title to all his property, had he not later executed the above codicil. We are also agreed that the codicil did not limit her power to use, expend, sell, convey or otherwise dispose of the property in her lifetime left her by his will. The difficulty of the writer has been to determine what effect the codicil had on the property left by him which had “not been used or expended by her.” The majority hold that while the estate conveyed to her in the original will was the fee, the effect of the codicil was to convert the fee originally granted into a life estate with full power of disposition, and that, if any part of the estate devised to her remained unused or unexpended at her death, it thereupon passed as directed in the codicil. Some courts hold that a life estate, coupled with unlimited power of disposition, is equivalent to a fee simple title. The great weight of authority, however, including this court, supports the rule that a life estate may be created, coupled with power of disposition, and that such power does not change the life estate into a fee for the reason that the power of disposition is not in itself an estate, but is an authority so to do derived from the will. See 17 R. C. L., page 624, § 13. We so held in Archer v. Palmer, 112 Ark. 527, 166 S. W. 99, even though the power of disposition might defeat the rights of a remainderman. See also State v. Gaughan, 124 Ark. 548, 187 S. W. 918; Galloway v. Sewell, 162 Ark. 627, 258 S. W. 655; Reddin v. Cottrell, 178 Ark. 1178, 13 S. W. (2d) 813. We have many times held that there can he no limitation over after a fee in a will for the reason, as stated in Moody v. Walker, 3 Ark. 147, that, “if a legatee possesses the absolute right of property, he certainly has the power of disposing of it in any way he may think proper, and therefore he might defeat the devise or limitation over.” See also Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682; Davis v. Sparks, 135 Ark. 412, 205 S. W. 803; Fies v. Fiest, 145 Ark. 351, 224 S. W. 633; Letzkus v. Nothwang, 170 Ark. 403, 279 S. W. 1006; Combs v. Combs, 172 Ark. 1073, 291 S. W. 818; Payne v. Hart, 178 Ark. 100, 9 S. W. (2d) 1059; First Nat. Bank v. Marre, 183 Ark. 699, 38 S. W. (2d) 14. But here there has been no attempted limitation over after a fee. The codicil operates only on such property of his as may not have been “used or expended” by her. If there is no such property, the codicil is ineffective. It does not attempt to control her in any disposition of such property during her lifetime, but is, in the view of the majority, a disposition of such of his property as may remain unused or unexpended at her death. The rule announced in the above-cited cases, as to a limitation over after a fee given, has no application here.
The general rule relative to the construction of a will and a codicil is stated in R. C. L., vol. 28, p. 199, as follows: “It is the well-settled general rule that a will and codicil are to be regarded as a single and entire instrument for the purpose of determining the testamentary intention and disposition of the testator, and both instruments together will be construed as if they had been executed at the time of the making of the codicil. They will not, however, be considered as a single instrument where a manifest intention requires otherwise. The construction of the provisions contained in a will and codicil may be different from that which would be given to the same provisions all embodied in a will. This is due to the fact that the mere taking of a codicil gives rise to the inference of a change in intention, and such an inference does not arise in the case of a will standing by itself. When a will and codicil are inconsistent in their provisions, the codicil, being the latest expression of the testator’s desires, is to be given precedence.”
This court follows the general rule above stated. In Gibbons v. Ward, 115 Ark. 184, 171 S. W. 90, we said: “A codicil is in legal effect a republication of the will, and the whole is to be construed together as if executed at the date of the codicil.” This was quoted with approval in Rogers v. Agricola, 176 Ark. 287, 3 S. W. (2d) 26.
Undoubtedly, Judge Coffman intended by his original will to give his wife all his property without any strings tied to it. They were childless, but each had a number of collateral kindred. In 1896 his fortune was of little value, but in 1923 it had grown to quite a substantial sum. Even then he tied no strings to her right to use and enjoy his property, but only to the excess or surplus. For some reason he made the codicil, which gives rise to an inference of a change in intention as to what might be done with the surplus. He might have thought, and the evidence somewhat sustains this surmise, that too much of it would go to her relations to the exclusion of his. Whatever his purpose was, it was his will or wish that his excess property go to the City Hospital, if any remained at her death.
The will and the codicil are to*be construed together to ascertain the intention of the testator. If the codicil is in conflict with the will, the codicil governs. We have many times held that, where the provisions of a will are in conflict, the last provision is controlling. Cox v. Britt, 22 Ark. 567; McKenzie v. Roleson, 28 Ark. 102; Gist v. Pettus, 115 Ark. 400, 171 S. W. 480. In the latter case we held there was no necessary repugnancy between the codicil and the will, and continued, saying: “But. if we are mistaken in this, and the third paragraph of the will should he construed to devise the fee simple title to John W. Pettus, then this paragraph would he manifestly inconsistent with and repugnant to the codicil, and in that case the language of the codicil would control.”
Therefore, if the codicil in this case he held to be in conflict with or repugnant to the will, which the majority does, by holding that the codicil converted the fee theretofore given into a life estate with power of disposition, then it necessarily follows that the codicil controls, and the surplus of his property at her death must go to the city for the City Hospital under his will.
The writer is of the opinion that there is no such repugnancy between the two instruments; that the language of the codicil, fairly construed, in the light of Gibbons v. Ward and Rogers v. Agricola, supra, together with the will, as one instrument as of the date of the codicil, constitutes a mere wish or will, precatory words, that she donate or give such of his property as remained, by will, to the City Hospital.
The record here does not disclose what or how much of his property, if any, remained on hand at her death. It therefore becomes necessary to reverse and remand the case with directions to ascertain such fact and to order the appellee, Lenon, as executor of Mrs. Coffman’s estate, to deliver such property to appellant for the use and benefit of the City Hospital. It is so ordered. | [
50,
109,
-108,
-35,
26,
32,
-102,
-104,
-30,
-110,
53,
83,
-67,
82,
80,
39,
113,
121,
81,
101,
-27,
-77,
6,
-52,
-109,
-45,
-107,
-41,
-15,
-51,
-12,
-41,
108,
40,
-118,
-35,
102,
-61,
67,
80,
-114,
-48,
-118,
112,
91,
112,
48,
59,
112,
-113,
97,
94,
-73,
43,
121,
110,
108,
110,
91,
-79,
-40,
-96,
-103,
-124,
111,
23,
-123,
3,
-112,
-55,
64,
40,
-104,
53,
-128,
-8,
16,
-74,
-122,
86,
10,
-55,
8,
114,
118,
16,
-59,
-11,
-80,
-102,
13,
107,
-99,
-91,
-65,
25,
10,
103,
-68,
-97,
69,
-111,
51,
118,
100,
31,
-100,
40,
0,
-114,
-42,
-79,
7,
56,
-124,
-106,
-1,
3,
32,
81,
-120,
98,
93,
6,
121,
19,
-122,
-109
] |
Hart, C. J.,
(after stating the facts). It is first insisted by counsel for the defendant that the great pre ponderance of the evidence shows that the accident occurred wholly on account of the negligence of the plaintiff, and that the trial court erred in not granting the defendant a new trial. This may he true, and still there is no reversible error on this account. It has been held repeatedly to be the duty of the trial court to set aside the verdict and.grant a new trial where it is of the opinion that the verdict of the jury is contrary to the weight of the evidence. On the other hand, after the jury has weighed the evidence, and the trial court has given its approval of the finding of the jury by refusing to grant a new trial on the ground that the verdict is contrary to the evidence, it is the duty of this court to uphold the verdict where there is any evidence of a substantial character to support it. St. Louis, Southwestern Railway Company v. Ellenwood, 123 Ark. 428, 185 S. W. 768; and Chalfant v. Haralson, 176 Ark. 375, 3 S. W. (2d) 38, and cases cited.
The testimony of the plaintiff was as to matters about which she had personal knowledge. She testified that the truck of the defendant was driven so that it collided with her car in which she was sitting and which was parked in a driveway on the premises of the defendant corporation, where she had been on business. She testified that the extension bed of the truck hit her car before her husband had started to move it, and that the collision knocked off the knob of the door next to which she was sitting and broke her arm, which was lying on top of the lowered window of the door of the car. It is insisted by counsel for the defendant that it was a physical impossibility for the accident to have happened in this way, but the testimony of plaintiff shows that, if her arm was lying in the position that she indicated to the jury it might have been, and was struck by the extension bed of the truck of the defendant, which was being driven through the driveway by one of its servants. Her testimony warranted the jury in finding a verdict in her favor on the question of the negligence of the defendant. It cannot be said as a matter of law that she was negligent in sitting in her car in the driveway of the defendant’s place of business with her arm extending to some extent beyond the window of her car. The question of her contributory negligence in this regard was for the jury. Therefore we find that the evidence was legally sufficient to warrant the verdict. Wells v. Sheppard, 135 Ark. 466, 205 S. W. 806; and Kittrell v. Wilkerson, 177 Ark. 1174, 9 S. W. (2d) 788.
It is next insisted by counsel for the defendant that the judgment must be reversed because one of the jurors was related to the plaintiff within the prohibited degree of consanguinity. One of the defendant’s grounds for a new trial was that one of the jurors was related to plaintiff’s counsel within the degree of consanguinity, disqualifying him as a juror, and that such fact of relationship was not discovered by the defendant until after the verdict had been returned and judgment rendered. It is insisted that the juror was disqualified because it is generally known that in damage suits of this sort the attorney of the plaintiff has a contingent fee. There is no proof of this, however, in the record. There is no evidence in the record that the juror was asked questions for the purpose of ascertaining his qualifications. A new trial will not be granted on account of the disqualification of the juror by reason of the relationship to the appellee where the bill of exceptions does not disclose that on the voir dire any questions were asked as to relationship of the jurors to the parties. Fones Bros. Hardware Company v. Mears, 182 Ark. 533, 32 S. W. (2d) 313, and cases cited.
A mere statement in a motion for a new trial that questions were asked the jury and answers made, with no showing in the record, and no evidence supporting the motion for a new trial, is insufficient to raise a question as to the juror’s disqualification. Van Fleet-Ellis Corporation v. Higginbotham, 182 Ark. 812, 32 S. W. (2d) 800.
We find no reversible error in the record, and the judgment will therefore be affirmed. | [
-16,
-22,
-64,
-81,
12,
96,
34,
-8,
49,
-127,
39,
-109,
-81,
-53,
20,
39,
54,
-65,
85,
35,
84,
-93,
7,
-125,
-14,
-105,
18,
-41,
-9,
-54,
103,
-4,
77,
50,
-54,
-43,
102,
73,
-43,
90,
-114,
-106,
-72,
-28,
88,
-14,
112,
56,
-12,
14,
-31,
-98,
-29,
42,
27,
71,
107,
40,
107,
61,
-13,
-16,
-52,
5,
127,
1,
-79,
36,
-100,
35,
-40,
28,
-128,
-79,
0,
-8,
114,
-74,
-126,
-44,
107,
-101,
8,
-30,
102,
1,
29,
79,
-68,
-104,
39,
110,
15,
-90,
24,
8,
75,
47,
-74,
-3,
105,
22,
62,
104,
-28,
85,
92,
100,
3,
-49,
-110,
-79,
-49,
100,
-78,
65,
-53,
-123,
48,
97,
-52,
-16,
94,
5,
91,
-69,
-97,
-65
] |
Smith, J.
This suit was brought by Mamie Butler to recover damages to compensate an injury alleged to have been sustained by her while she was a passenger on one of appellee’s street cars in the city of Little Bock. Two grounds of negligence were alleged. The first was that, as the plaintiff was about to alight from the street car on which she had been a passenger, the motorman started the car prematurely, after having- stopped it. But, as the plaintiff herself testified that she fell before the car was put in motion, this allegation of negligence passed out of the case.
The second ground of negligence alleged was that the motorman caused the step from which plaintiff alighted to fold up prematurely, and thus to trip her as she was alighting from the step, throwing her violently to the ground.
The defendant denied all the allegations of the complaint. The husband of the passenger was made a party plaintiff also.
The testimony on the part of plaintiffs as to the negligence was to the following effect: The street car stopped to permit two passengers, both colored women, to leave the car by the rear door. The car was stopped by the motorman applying air to the brake after he- had cut off the electric current to the motor. The rear door was then opened and the rear step let down, by the motorman turning a small lever which automatically controlled the door. After the rear door was opened and the rear step unfolded downward, one of the colored women alighted without mishap. As the other passenger, the plaintiff Mamie Butler, stepped-down on the car step with her left foot, she held to an upright rod at the side of the door; then, turning the rod loose, she placed her right foot upon the pavement, and, before she had time to remove her left foot from the rear step, it started folding up.
It appears, from the facts stated, that the instant case is very similar to the cases of Little Rock Traction & Electric Co. v. Kimbro, 75 Ark. 211, 87 S. W. 644, and Oliver v. Fort Smith Light & Traction Co., 89 Ark. 222, 116 S. W. 204. The legal principles applicable to the instant case and controlling here were announced in those cases, and the instructions given in the instant case correspond to those principles as to the duty of the carrier to its passengers.
There was a verdict for the defendant, and the only error assigned for the reversal of this judgment is in the instructions given to the jury.
We have said that the instructions given upon the care due the passenger by the carrier were correct, but there was given, at the request of the defendant and over the objection of the plaintiff, an instruction numbered 12, which we think was erroneous and prejudicial. It reads as follows: “You are instructed that in no event would the defendant be liable to the plaintiff because of any condition with which the plaintiff, Mamie Butler, may be suffering’, if any, unless you further find from preponderance of the evidence that such condition was caused as a direct and proximate result of the accident alleged and on account of the negligence of the operator without the aid of any intervening cause.”
In 45 C. J., page 926, chapter Negligence, § 489, discussing intervening efficient causes, it is said: “It is well-settled that the mere fact that other causes, conditions, or agencies have intervened between defendant’s negligence and the injury for which recovery is sought is not sufficient in law to relieve defendant from liability. In other words, an intervening cause will not relieve from liability where the prior negligence was the efficient canse of tlie injury. The test is not to be found in the number of intervening events or agencies, but in their character and in the natural connection between the wrong done and the injurious consequences, and, if the injury is the natural and probable consequence of the original negligent act or omission, and is such as mig’ht reasonably have been foreseen as probable, the original wrongdoer is liable, notwithstanding the intervening act or event.” The case of Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S. W. 473, is cited in the note to the text quoted.
The law of the subject is well-settled. It was said, in the case of Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647, 18 L. R. A. (N. S.) 905, that “it is a well-settled general rule that if, subsequent to the original negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote. The difficulty arises in each case in applying the principle to a given state of facts.”
Instruction numbered 12, set out above, does not thus declare the law. Its purport appears to be that the defendant would not be liable, even though it were negligent, unless this negligence was the sole cause of the injury, to which no other cause contributed or intervened. As said in the Horton case, supra, the author of the original negligent act is responsible for its consequences, unless thereafter a new cause has intervened, of itself sufficient to stand as the cause of the injury, in which event the original negligence would be too remote to be charged as the proximate cause. The instruction does not conform to this view of the law, and it was therefore erroneous.
It may be doubted whether there was sufficient testimony to warrant the submission of this question to the jury. The question of liability appears to turn upon the question whether the fall of the passenger was- due to her own carelessness or to some unavoidable accident, on the one hand, or whether, on the other hand, the motor man caused the step to he prematurely folded np. In the latter case there would he liability; in the other there would not.
There was testimony tending to show that the passenger’s condition had been made worse by her conduct and confinement since her fall. Such testimony might have some relevancy on the question of the measure of damages, but it could not affect the question of the negligence of the carrier. The negligence of the carrier either caused the passenger to fall, or it did not cause her to fall, and the question of its negligence in this respect cannot be determined by a consideration of the subsequent conduct of the injured party.
No other error appears, but for the error in giving the instruction numbered 12 the .judgment must be reversed, and it is so ordered. | [
-48,
-22,
-88,
-18,
12,
96,
24,
-102,
99,
-105,
-95,
-109,
-19,
97,
29,
33,
95,
125,
81,
99,
-15,
35,
71,
-93,
-46,
82,
57,
-35,
-109,
74,
116,
-10,
76,
112,
66,
-115,
-121,
-54,
-51,
94,
-114,
-96,
-24,
-24,
25,
-112,
124,
122,
-124,
7,
113,
-81,
-42,
42,
24,
75,
105,
42,
123,
-71,
-13,
121,
-126,
21,
127,
22,
-95,
36,
-98,
-121,
88,
24,
-104,
-75,
56,
-104,
114,
-78,
-125,
-36,
101,
-103,
12,
-94,
98,
32,
13,
103,
-67,
-72,
38,
-74,
-99,
-90,
-22,
109,
51,
41,
-65,
-99,
107,
16,
12,
-6,
-6,
93,
89,
96,
-121,
-117,
-76,
-79,
-89,
34,
-74,
23,
-21,
-113,
48,
113,
-56,
-14,
92,
-123,
51,
-101,
-58,
-70
] |
Smith, J.
Separate snits were filed on January 17, 1931, to foreclose two different deeds of trnst. An answer was filed in each case which confessed the debt and the liens securing it, hut alleged the fact to be that the defendant debtors were earnestly endeavoring to sell the mortgaged property at private sale for the purpose of paying the debt. The depreciation of values of all kinds and everywhere was alleged, and it was prayed that the court defer and postpone the rendition of a decree condemning the mortgaged property to sale until there should be such recovery and restoration of values as would prevent the sacrifice of the property.
Without further pleadings having begn filed, no decrees of sale were rendered by the court until January 20, 1932, at which time such decrees were rendered, and pursuant thereto the mortgaged property was sold by the commissioner of the court.
The commissioner made report of these sales, to which the mortgagors filed exceptions. Exceptors alleged that the property had sold for less than the debt secured and for less than half its normal value. It was prayed, therefore, that the court refuse to confirm the sales, and that the sales be set aside and that the property be ordered resold when financial conditions had improved and there had been some recovery in commodity prices generally and in land values in particular.
The reports of sale of the commissioner and the exceptions thereto were submitted to and heard by the court, and the exceptions were overruled and the reports confirmed, and appeals have been prosecuted from those orders, which have been briefed and submitted together.
The decrees must be affirmed, for two reasons, first, because the testimony taken at the hearing- of the exceptions has not been brought into the record, and in the absence of this testimony it will be presumed that the evidence heard by the court sustained its action. Alger v. Beasley, 180 Ark. 46, 20 S. W. (2d) 317; Unionaid Life Ins. Co. v. Powers, 180 Ark. 154, 20 S. W. (2d) 610; McGowan v. Burns, 182 Ark. 506, 31 S. W. (2d) 953.
Bnt, if it were assumed that the testimony heard by the court sustained the allegations of the exceptions, we would, nevertheless, hold that the exceptions were properly overruled. The essence of the exceptions is that the sales were prematurely decreed, and should have been postponed until normal conditions had returned and normal values had been restored, and that because of the failure to postpone the rendition of the decrees of sale the mortgaged property had sold for much less than its value had been in normal times.
It appears that there was a delay of slightly more than a year in rendering the decrees of sale, although there was no denial of the allegations of the complaint praying foreclosure, and we are unwilling to hold that the court abused its discretion in refusing additional delay. It was held, in the case of Federal Land Bank v. Blackshear, 183 Ark. 648, 38 S. W. (2d) 30, that a decree allowing eleven months and thirty days to pay the mortgage indebtedness after foreclosure was unreasonable, and that the chancery practice requires the sale of mortgaged property, on default, within a limited time fixed by the court, which usually does not exceed six months and, in no event, extends beyond the beginning of the next ensuing term of court. The case of Taylor v. O’Kane, 185 Ark. 782, 49 S. W. (2d) 400, is to the same effect.
There was no allegation of fraud or other inequitable conduct relating to either sale, except only that the property did not sell for a sufficient price.
It is well settled, however, that mere inadequacy of consideration, however gross, unaccompanied by fraud, unfairness, or other inequitable conduct, in connection with a judicial sale, is, of itself, insufficient to justify the court in setting the sale aside and refusing confirmation thereof. Federal Land Bank v. Ballentine, ante p. 141.
The decrees are correct, and mnst be affirmed, and it is so ordered. | [
-15,
-4,
-112,
-82,
-6,
-32,
-88,
-70,
-45,
-8,
-89,
83,
77,
66,
16,
109,
-121,
61,
117,
96,
-59,
-78,
22,
3,
-46,
-13,
89,
-35,
-67,
77,
-12,
21,
12,
32,
-54,
-107,
-26,
-126,
-51,
88,
-50,
-95,
-128,
109,
-7,
64,
116,
47,
80,
73,
81,
-82,
-29,
44,
29,
-33,
40,
42,
-21,
57,
-48,
-8,
-103,
-116,
125,
5,
-79,
117,
-98,
97,
-56,
-114,
-104,
49,
1,
-24,
115,
-74,
-106,
116,
109,
27,
40,
102,
102,
3,
69,
-17,
-16,
-56,
47,
-2,
-99,
-90,
-110,
88,
2,
-31,
-66,
-103,
77,
0,
39,
-2,
-18,
-107,
92,
104,
31,
-114,
22,
-125,
-121,
122,
-103,
27,
-14,
-105,
48,
112,
-51,
-94,
94,
103,
113,
-101,
-122,
-35
] |
Kirby, J.,
(after stating the facts). It is undisputed that the three notes sued on and for which the mortgages were sought to be foreclosed were made by the Mabrys to the appellee bank, and that its mortgages constituted a first lien upon the property. Nor is there any controversy about the Mabrys being indebted to the First National Bank, which released its prior lien and mortgage upon the lands involved, and voluntarily became a junior mortgagee subject to the lien of the appellee’s mortgages.
Although it is denied that appellant bank paid the taxes, and that the First National Bank paid the taxes alleged to have been paid, it was shown that such taxes were paid by the First National Bank, which claimed to have paid them to protect its interest in the lands under the junior liens, which is admitted it held. While a junior mortgagee who in good faith pays the taxes due to protect its lien may be subrogated to the State’s lien therefor and recover the amount paid, even as against the prior mortgagee, this principle of subrogation is administered, not as a matter of legal right, but to subserve the ends of justice and to do equity in the particular case; but, where such junior1 mortgagee pays the taxes over a three-year period, or furnishes the money to the mortgagor with which to pay them, the tax receipts being taken in the name of the mortgagor or in the name of the bank furnishing the money and paying the taxes as Ms agent without the senior mortgagee’s knowledge, meanwhile furnishing yearly supplies to the mortgagors for the production of crops and the payment of money to it on the junior mortgages, it has been held that such junior mortgagee is not entitled to subrogation to the State’s lien for such taxes as against the prior mortgagee, there being no disclosure of the true situation as would give notice to the senior mortgagee of the nonpayment of the taxes, giving it an opportunity to pay the delinquent taxes for its own protection. Federal Land Bank v. Richland Farming Co., 180 Ark. 442, 21 S. W. (2d) 954. Appellant knew the taxes were not being paid by the mortgagors, loaned them the money -with which to pay same, and paid such taxes, taking the receipt therefor in its own name as agent for the mortgagors without notifying the senior mortgagee of the delinquencies and giving it an opportunity to pay the taxes, as appellant regarded it was bound to do. It knew that it had advanced the money to the mortgagors with which to pay the taxes and also, from the receipts of the money paid by it for the taxes, that it was paying the taxes for the mortgagors as their agent as disclosed by such tax receipts. Of course, if the taxes had been paid by the mortgagors as it was their duty to do, there could have been no right of appellant, who claims to have paid the taxes, to subrogation to the State’s lien thereto, since it was the duty of the mortgagors to pay the taxes. The court did not err therefore in its decree denying appellant the right of subrogation to the State’s lien for the payment of taxes claimed to have been paid by it for the mortgagors to protect its junior lien.
Neither was error committed in refusing appellant a decree for money expended by it in replacing one of the houses on° a tract of the mortgaged land which had been destroyed by fire. It was not the duty of the junior mortgagee to make any such replacements, nor could it hold the senior mortgagee responsible for the cost thereof.
The decree is accordingly affirmed. | [
-16,
-8,
-40,
-20,
-54,
96,
43,
-102,
42,
-80,
35,
-45,
-21,
-62,
81,
45,
-76,
121,
101,
104,
-43,
-74,
55,
74,
-46,
-5,
-47,
-59,
-79,
77,
-28,
85,
12,
48,
-54,
-43,
-26,
-102,
-59,
-46,
46,
-115,
43,
69,
-3,
0,
52,
-17,
114,
79,
81,
-124,
-13,
44,
53,
70,
72,
42,
105,
61,
-48,
-16,
-97,
-123,
95,
5,
-79,
101,
-102,
67,
-38,
14,
-112,
57,
0,
-24,
123,
-90,
-122,
86,
11,
-101,
9,
102,
102,
16,
-20,
-21,
-20,
-104,
46,
-42,
63,
-122,
-112,
88,
3,
42,
-73,
-99,
92,
65,
-122,
-2,
-26,
-123,
29,
108,
30,
-53,
-42,
-77,
12,
124,
-102,
-125,
-1,
3,
48,
113,
-113,
-94,
93,
38,
50,
-101,
14,
-7
] |
Mehaffy, J.
Mrs. Edith Sutton Holt, guardian, ■brought suit in the Arkansas Circuit Court against the Security Life Insurance Company of America, and also brought suit against the Missouri State Life Insurance Company. The cases were consolidated by agreement, tried together, and there was a verdict and judgment against each of the appellants for the sum of $3,000, and, to reverse said judgment, the appellants prosecute this appeal.
The complaint alleged that Robert Earl Holt had been duly adjudged incompetent, of unsound mind, and mentally incapable of managing his affairs; that Edith S. Holt had been duly appointed as guardian for R. E. Holt by order of the probate court of Arkansas County. The complaint alleged that the defendant, Security Life Insurance Company of America, issued to E. E. Holt its policy of life and disability insurance, and that premiums thereon were paid to the sixth day of October, 1926.
While said policy was in force, the insured suffered a bodily injury, and, while the premiums were being paid, and while the policy was in force, the said E. E. Holt became permanently and totally disabled. His permanent and total disability was both mental and physical. The policy provided that, after receipt and approval and due proof that, by reason of bodily injury or disease occurring while the policy was in full force, and showing that the insured has been for one year, and will be thereafter permanently and continuously, prevented from engaging in any occupation whatever for remuneration and profit, the provision requiring the payment of premiums will be waived.
The policy also provided that the company would pay to the insured the amount of $100 upon the date of the approval of the proofs, and upon the same date of each month thereafter during the remainder of the endowment period, while the insured is disabled.
It was alleged that notice had been given to, and demand made of, the defendant, Security Life Insurance Company of America, pursuant to the provisions of the contract, and that defendant had denied liability on the alleged ground that the insured failed to notify it of his total and permanent disability.
It was further alleged that, at the time the insured became totally and permanently disabled, he was mentally incompetent, and incapable of managing his own affairs; that there was now due and matured upon the policy an unpaid balance of $3,000.
An amendment was filed to the complaint, alleging that E. E: Holt suffered a bodily and physical injury in 1922; that he was mentally incompetent and incapacitated in the year 1925, and said mental incompetence was total and permanent. Said disability resulted from a mental disease, and was such as to prevent him from engaging in any occupation whatever for remuneration or profit; that the defendant, during the year 1925, was advised both in writing and orally of the existence of the total, permanent disability; that, because the disability complained of was mental incompetency and incapacity, Holt was excused from giving notice.
The complaint against the Missouri State Life Insurance Company contained the same allegations as the complaint against the Security Life Insurance Company of America, and alleged that the Missouri State Life Insurance Company had taken over all the policies and assumed all the liabilities of the other defendant.
Each defendant filed answer denying all the material allegations in the complaint.
The undisputed evidence shows that E. E. Holt was injured in an automobile accident in 1922, and it also shows that he had Huntington’s chorea.
Many witnesses testified that prior to Holt’s injury in 1922 he had a brilliant mind, and had a very high sense of honor. The evidence shows that he was a graduate of two universities; that he was practicing law in Stuttgart and had a good practice, and about these facts there is no dispute. Numbers of these witnesses testified that after the automobile accident his condition grew steadily worse, and some of these witnesses testified that after the accident, and in 1925, he was wholly incompetent to attend to business, and was, in fact, insane.
Competent physicians testified that the disease from which Holt was suffering manifested itself by jerky movements, and that it has a tendency to cause complete loss of reasoning power; that it is incurable; that he was incompetent in February, 1925.
Dr. Ponder testified that he based his answers on both the personal examination that he made of Holt and the hypothetical question. He said that to have reached the point that the disease has now reached indicated that it had been going on for a long time; that the physical and mental conditions go hand in hand. The doctors testifying for the appellee testified at length, giving their reasons for their conclusions, and testified that in their opinion he was insane early in 1925.
Competent doctors also testified for the appellants, and testified that in their opinion Holt was not insane. Dr. Pat Murphy testified that a man could conduct his business and,carry on his business affairs for a long number of years after he develops chorea; that the mental deterioration comes by slow process; that he did not think an incompetent man could do the things that Holt had done. Doctor Murphy was corroborated by other expert witnesses.
There was also introduced in evidence numerous complaints which had been filed in the courts signed by Holt, and correspondence between Holt and his clients, which tended to show that he was not insane. However, the evidence shows that some of the complaints introduced were written by other parties, and that Holt simply signed his name. Whether the other complaints introduced in evidence were written by Holt, the evidence does not show.
Judge Harvey R. Lucas, chancellor of the district, testified that he met Holt, and that Holt was in his court in 1925 and 1926; that he considered Holt peculiar, but did not think about the question of sanity or insanity, but that he was different from an ordinary man. He did not try any cases in Judge Lucas’ court, but called attention to certain cases and asked for decrees.
Numbers of witnesses were introduced by appellant showing correspondence with Holt, and that Holt attended to business in the ordinary way after 1925, and as late as 1929. It will therefore be seen that the evidence as to Holt’s incapacity and incompetency after his automobile accident in 1922 is in conflict. Arguments have been made for both appellants.
There was substantial evidence to the effect that Holt was incompetent after the automobile accident, and that his condition grew worse from that time on.
It is earnestly insisted by appellants that the court should have directed a verdict in their favor. As we have many times held in determining this question, we must view the evidence- in tlie light most favorable to appellee, and if there is any substantial evidence to support the verdict, it must be sustained. Mo. Pac. Rd. Co. v. Harville, 185 Ark. 47, 46 S. W. (2d) 17; B. & O. Rd. Co. v. McGill Bros. Rice Mill, 185 Ark. 108, 46 S. W. (2d) 651; Altman-Rodgers Co. v. Rogers, 185 Ark. 561, 48 S. W. (2d) 239; Halbrook v. Williams, 185 Ark. 885, 50 S. W. (2d) 243; Ark. P. & L. Co. v. Connely, 185 Ark. 693, 49 S. W. (2d) 387; C. R. I. & P. Ry. Co. v. Matthews, 185 Ark. 724, 49 S. W. (2d) 392.
There are many decisions of this court holding that, if there is any substantial evidence to support the verdict of the jury, it will not be disturbed. There are also numerous decisions' to the effect that we do not pass upon the credibility of the witnesses nor the weight to be given to their testimony. If there is substantial evidence to support the verdict, this court cannot set it aside, even though we believe the verdict is contrary to the preponderance of the evidence. We cannot do it for the reason that it is the province of the jury to determine the credibility of the witnesses and the weight to be given to their testimony.
The appellants, however, contend that the evidence does not show total disability. They cite and discuss many authorities to support their contention, and they also rely on the evidence tending to show that Holt was practicing law and dealing and corresponding with clients, and apparently capable of attending to business. This evidence, however, is contradicted by numerous witnesses who testify that Holt was wholly incompetent in 1925.
If the appellants’ evidence was without contradiction, the appellee, of course, could not recover, because no notice was given, and the premium after February 6, 1926, was not paid, but, if he was insane, no notice was necessary, and it was not necessary to pay the premium.
Several cases decided by this court have discussed these questions and reviewed the authorities, and we do not deem it necessary to review them here. We call at tention to Pfeifer v. Mo. State Life Ins. Co., 174 Ark. 783, 297 S. W. 847; Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S. W. 366; Mo. State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600; Mutual Benefit Health & Accident Ass’n v. Bird, 185 Ark. 445, 47 S. W. (2d) 812; Travelers’ Pro. Ass’n of America v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364; Ætna Life Ins. Co. v. Phifer, 160 Ark. 99, 254 S. W. 335; Ætna Life Ins. Co. v. Spencer, 182 Ark. 497, 32 S. W. (2d) 310; Missouri State Life Ins. Co. v. Johnson, ms. op. November 14, 1932.
Questions of notice and total disability are reviewed in the authorities on these subjects above quoted, and it would be useless to review them here. We are of the opinion that, under the evidence in this case, the jury could find that Holt was totally disabled as defined by the decisions above referred to.
It is next contended that appellee was not the legally appointed guardian of it. E. Holt. Whether Holt was present at the time of the appointment as required by statute, we think, is now immaterial. In the case of Scott v. Stephenson, 168 Ark. 763, 271 S. W. 714, this court said: “We deem it unnecessary, however, to enter upon a discussion of the question of the validity or invalidity of the original order of the probate court, for the validity of the decree of the chancery court could not be assailed on the ground that the order appointing the guardian was void. The invalidity of the order did not affect the jurisdiction of the chancery court. An action brought by a guardian or a next friend of a person under disability is in effect a suit by such person under disability, and a change in the character of the representative does not operate as a change of parties, for, as above stated, the person under disability is the real party, and not the representative. ’ ’
Our statute provides: “The action of a person judicially found to be of unsound mind must be brought by his guardian, or, if he has none, by his next friend. When brought by his next friend, the action is subject to the power of the court in the same manner as the action of an infant so brought. ’ ’ Crawford & Moses ’ Digest, § 1116.
This court has said: “An insane person not under guardianship can sue and be sued the same as a sane person, and the foregoing’ provision of the Constitution [art. 7, § 34] does not exclude the jurisdiction of other courts to hear and determine suits by or against insane persons whether under guardianship or not. * * * The statutes of this State confer ample protection to the rights of insane litigants, either plaintiff or defendant, by requiring the court in which the action by or against such person is pending to see that he is represented by a next friend or guardian. An action by such person must be brought by guardian or next friend, and the defense of such person must be by his regular guardian or guardian appointed by the court.” Peters v. Townsend, 93 Ark. 103, 124 S. W. 255.
The court also said in the last case: “The statute refers in express words only to persons judicially found to be of unsound mind; but it is not doubted that the Legislature intended to give equal protection to persons of unsound mind in actions by or against them, though not judicially declared to be such.”
Section 1116 of Crawford & Moses ’ Digest above referred to states that, when an action is brought by next friend, the action is subject to the power of the court in the same manner as the action of an infant so brought.
“It is the infant, and not the next friend, who is the real and proper party. The next friend by whom the suit is brought on behalf of the infant is neither technically nor substantially the party, but resembles an attorney or a guardian ad litem by whom a suit is brought or defended in behalf of another.” St. L. I. M. & S. R. Co. v. Haist, 71 Ark. 258, 72 S. W. 893; Morgan v. Patter, 157 U. S. 195, S. Ct.
Appellants objected to the introduction of the petition and order of the probate court, and they contend that the order was void, and that the court could not properly proceed with the case; that there was no proper party plaintiff. We have already shown that the guar dian is not the party, but that the insane person is the real party.
In the case of Peters v. Townsend, supra, we said: “If the insanity of a defendant in a pending suit was .suggested, but had not been judicially ascertained, the court gave opportunity for an inquisition to be held, or took the necessary steps to determine the question for itself; and, having ascertained that the defendant was mentally incapable of making his defense, appointed a guardian ad litem for him, and thereafter imposed upon him the restraints of infancy.”
In this case, even if the appointment of a guardian had been void, the proper party was the insane person, and it was the duty of the court to proceed with the case permitting the appellee to continue as next friend, or it could have appointed her guardian ad litem.
The court heard the evidence as to insanity, and knew the condition of Holt’s mind at the time of the-trial; knew he was insane, and it was the court’s duty to proceed with the trial of the case, and not turn the insane person out of court. There was no error therefore in proceeding with the trial as the circuit court did.
The appellant argues that two instructions given by the court at the request of the appellee were erroneous, and that the judgment should be reversed for that reason.
The first instruction objected to reads as follows: “Total disability as used in the policy does not necessarily require or mean that the assured must be absolutely disabled from transacting any kind of work or business, but such a disability is meant which renders him wholly unable to perform or execute the necessary substantial and material things and acts in usual or customary way of any business employment or occupation. But, if the assured was able to perform or execute in the usual or customary way any of the substantial or material things necessary to be done in the prosecution of any business, employment, or occupation whatever, he was then not totally disabled under the law.”
Appellant’s specific objection to this instruction was to tbe first paragraph of it, ending with ‘ ‘ occupation, ’ ’ but when tbe entire instruction is read, it is certainly as favorable to tbe appellant as it was entitled to. Moreover, tbe appellant requested, and tbe court gave, tbe following instruction:
“Tbe plaintiff is not entitled to recover merely by showing that there was an impairment in tbe ability of R. E. Holt on August 8, 1925, but it is necessary that tbe plaintiff show by a preponderance of tbe evidence that be was disabled to tbe point where be could not perform any of tbe material and substantial duties of a gainful occupation.”
Tbe court also, at tbe request of tbe appellant, gave tbe following instruction: “You are instructed that the fact that R. E. Holt is now totally and permanently disabled does not entitle him to tbe benefits of tbe policy, but tbe burden is upon tbe plaintiff to show by a preponderance of tbe evidence that he was wholly and permanently disabled prior to August 8, 1925.”
Other instructions were given at tbe request of tbe appellee, and also others at tbe request of tbe appellants, but no objections are urged to them. "We think, when tbe instructions on tbe question of permanent and total disability are read together, they correctly state tbe law.
It is also contended that tbe court erred in not sustaining appellant’s objection to the hypothetical question propounded to mental experts. However, we do not find that this question is mentioned in appellant’s motion for a new trial.
We are unable to say whether tbe appellee was legally appointed guardian.
“Under this statute any person may bring suit as tbe next friend of an infant without giving bond, and to allow tbe next friend to receive tbe money of tbe infant collected upon the judgment recovered in such actions would subject tbe estates of tbe infants to spoliation by irresponsible parties appearing as tbe next friend. We have seen that tbe statute does not permit even tbe father or mother of an infant to take charge of his estate without first giving bond as guardian of the infant. There is nothing in the statute that confers such authority upon the next friend of an infant, and we are of opinion that he has no such authority.” Wood v. Claiborne, 82 Ark. 514, 102 S. W. 219. Therefore the appellee, if she has not already been appointed legal guardian, must be legally appointed and give bond before she can receive the money.
It is contended by appellants that the verdict is excessive. It is undisputed that on November 10, 1924, R. E. Holt- borrowed the sum of $160 on the policy as security, and that this loan has never been repaid. This indebtedness of $160 should be deducted from the judgment for $3,000. The judgment will be modified by deducting $160 and, as modified, affirmed. | [
-80,
109,
-112,
-66,
-120,
-29,
58,
-102,
83,
-62,
-91,
-45,
-7,
113,
4,
103,
-43,
45,
-15,
106,
-46,
-9,
117,
58,
-45,
-5,
115,
-59,
-77,
79,
-28,
-34,
89,
40,
10,
81,
-30,
-64,
-63,
24,
14,
-120,
-85,
-19,
25,
-40,
48,
-3,
-43,
77,
65,
-34,
-5,
40,
23,
75,
108,
110,
90,
-87,
-46,
-15,
-118,
7,
123,
19,
-96,
70,
-104,
67,
88,
14,
-102,
55,
24,
-4,
48,
-90,
-58,
116,
35,
25,
4,
98,
99,
48,
-91,
-25,
-96,
8,
54,
-70,
-113,
-81,
-74,
105,
59,
13,
-74,
-99,
90,
4,
-106,
-4,
-86,
-35,
20,
36,
5,
-117,
-42,
-127,
-115,
-32,
-36,
11,
-25,
-51,
48,
113,
-116,
-32,
92,
-121,
127,
-77,
-122,
-26
] |
McHaney, J.
By special act 211 of 1905, Fulbax School District was created, composed of what had been School District No. 10 in Fulton County and School District No. 29 in Baxter County. By agreement, the county superintendent of schools in Fulton County has supervised said school, and all the funds accruing to said district have been transferred to the Fulton County school funds and administered and expended by the proper officials of that county. Thereafter, on March 13, 1931, the county board of education of Fulton County made an order consolidating said district with Viola Special School District No. 15 and Union Ridge No. 59, under the name of Viola, or extended tlie boundaries of the Viola District to include the others. Since that time, Viola Special School District has functioned as a school district according to law and the order of the county board of education of Pulton County. On March 1, 1932, eight men, a small minority of the electors of the old Pulbax District, held a school election in said district, in which appellants were elected directors, who thereafter employed a teacher who taught a term of school, and was paid from funds belonging to the Viola District, collected from taxes on property in that part of Viola District in Baxter County and what was formerly district No. '29 of Baxter County before Pulbax District was created.
To a complaint setting out the above facts and that said fund was being unlawfully appropriated by appellants, who have no legal status, a demurrer was interposed by appellants, which was overruled, and, upon their declining to plead further, they were perpetually enjoined from performing any duties as directors, and from paying out any funds or otherwise interfering with the affairs of said Viola District.
Appellants contend for a reversal on the ground that the order made by the county board of education of Pul-ton County consolidating the Pulbax District with Viola and another was not binding as to that part of the territory of the Pulbax District lying in Baxter County, and that said order of consolidation, being improvidently made, could not be cured by § 54 of act 169, Acts of 1931, known as the “School Law.”
Conceding without deciding that the demurrer to the complaint raises the question of the validity of the order of the county board of Pulton County extending the boundaries of the Viola District to include the others above mentioned, we think the court correctly overruled the demurrer. The applicable portion of said § 54 is that “any errors, omissions or defects in the procedure of creating such district are hereby cured, and the action creating such district is hereby ratified.” While it is true that the applicable statute provided for the action of both county hoards to form a school district of lands in two counties, act 156 of 1927, p. 549, still the Fulbax District was created by the Legislature of 1905, and, by common consent and mutual agreement, the Fulton County board and the county superintendent of that county supervised it and managed its affairs as if it were a Fulton County district in its entirety. After the order of consolidation was .made, all persons in the district acquiesced in it, and no appeal was prosecuted from such order. The order was not void, but voidable. Its only defect was the omission to have the action of the county board of Baxter County. A similar case is that of White v. Board of Education of Independence County, 184 Ark. 480, 42 S. W. (2d) 989, where districts in one county were annexed to a district in another county with the action of the county board in one county only. We there denied a petition for certiorari to quash the order of consolidation because of delay in bringing the action for ten months. Here appellants did not appeal, and brought no action contesting the validity of the order, but assumed authority to act as a board of directors in a district that had been abolished for 26 years.
Their action in so doing was without authority of law, and the court correctly enjoined them. Affirmed. | [
116,
-20,
-44,
29,
62,
-64,
24,
-118,
89,
-93,
37,
119,
-17,
-40,
39,
101,
-29,
123,
117,
121,
-28,
-73,
83,
1,
9,
-13,
-25,
-57,
-77,
-52,
-12,
87,
8,
48,
-54,
93,
-58,
68,
-59,
-36,
-122,
34,
-85,
14,
93,
-61,
60,
101,
114,
-113,
33,
78,
-13,
45,
-100,
67,
40,
44,
89,
-85,
64,
123,
62,
69,
109,
2,
-111,
-57,
-102,
-125,
72,
46,
-104,
53,
-60,
-23,
90,
-90,
-106,
-9,
3,
-119,
-120,
96,
102,
3,
-84,
-3,
-72,
-120,
38,
126,
-3,
-26,
-78,
89,
-94,
14,
-65,
29,
112,
80,
-121,
118,
-96,
-123,
95,
124,
-116,
-122,
-108,
-109,
13,
45,
-118,
7,
-5,
-117,
48,
17,
-51,
-10,
86,
102,
48,
-101,
75,
-4
] |
Wood, J.,
(after stating the facts). In 1892 the appellee was married to W. R. Shelton. She was the youngest daughter of H. L. Trundle, and was living with her father on what is known as the old home place, keeping house for him, her mother being dead. She and her husband continued to reside on the old home place with her father for three years. After this she and her husband moved to Houston, Perry County, where they lived nearly three years. After this they moved to Perryville, where they continued to reside for six years. After this they moved to Houston, where appellee’s home was at the time her deposition was taken. During all this time, and, in fact, until July 15, 1906, when H. L. Trundle died, he' had made his home with appellee. During this time he had visited his other children, staying sometimes for three months with them, but he considered that his home was at appellee’s. About six years before his death he had spent the winter in Little Rock at his daughter’s, Mrs. Kirkwood’s. During the time that he stayed at Mrs. Kirkwood’s he paid her at the rate of $2 a week for his board. Mr. Trundle was a man of pride, and as long as he had any property it seemed to be his desire to reimburse his children for any attention that they were called upon to give him in his old age, and he was anxious to take care of himself as far as possible and not to be a burden on any of his children.
About the year 1897 appellee and her father, according to her testimony, entered into a contract whereby he proposed to deed or will to appellee what is known as the “Ed. Trundle place,” in consideration that appellee and her husband should take care of him the balance of his life. She testified her father wanted the benefit of the place during his life, but that after he was gone it was for her; that he had given all the other children all he thought they were entitled to, and that he thought for what she had done for him during his last days she was entitled to it. She said that she considered that it was worth as much as $10 per month to board and take care of her father; that he lived with her and she continued to provide for him and to take care of him in his old age.
After she had the understanding and conversation with her father about taking care of him in his old age, in about the year 1903, he brought her a package of papers containing what he called his will or deed to the Ed. Trundle place. “When he delivered the package,” she says, “he told me there was a will or deed to the Ed. Trundle place, and I looked in it, and found that there was contained in the package the will and three deeds.” She said: The paper inclosing the will and the three deeds in which the Ed. Trundle place was described contained the following indorsement: “Will and deeds to the Ed. Trundle Place,” and on both ends of the package was the indorsement, “Ruth Shelton.” The deeds were made exhibits. The deeds were mesne conveyances from various parties to the Ed. Trundle place. The indorsements on the wrapper were in. the handwriting of H. L. Trundle.
She says: “My father, at the time he delivered me the package of papers, told me to lock them up and told me to let no one have them; that they were mine.”
Other witnesses corroborated the testimony of the appellee. One witness testified that in 1897 or 1898 he witnessed a will for H. L. Trundle; that Trundle told him at the time he “was conveying all of his property to. his daughter Ruthie; he said a number of times that Ruthie would get all he had at his death. H. L. Trundle at the time owned the Ed. Trundle place. He was making his home at that time with Mr. and Mrs. Shelton, and he continued to make his home with them after he made the will until his death.”
Another witness testified that he married one of H. L. Trundle’s daughters; that he talked frequently with Trundle during the latter part of his life, and knew that he willed the Ed. Trundle place to Ruth Shelton. He saw the will; H. L. Trundle showed it to him, and told him what he had done. H. L. Trundle said: “She should have the place as she was going to take care of him as long as he lived.” He called her place his home; had visited around with his other children. He was at witness’ house a few times. It was some five years before his death when he showed witness his will, at witness’ house. Witness read a part of it, and saw the Ed. Trundle place mentioned in the will, and saw the numbers of the land in the will. He didn’t notice that it mentioned anything except the Ed. Trundle place and gave the numbers of the land.
Another witness testified that he was a son-in-law of H. L. Trundle; that he made his home at witness’ house part of the time, and Little Rock part of the time, with Mrs. 'Kirk-wood, but most of the time his home was at Ruth L. Shelton’s. He always called Ruth Shelton’s place his home and kept his things there.
Another witness testified that about the year 1906 he stayed all night at Shelton’s house and slept in the same room with H. L. Trundle, and had a conversation' with him in which he told witness that he willed the Ed. Trundle place to Ruth L. Shelton; that he had made his home with her since his wife died, and that she had been very good to him. At that time he was very weak and feeble, and had to have fires built for him at night, and he told witness that she built fires for him; that he had to have them; that “Ruthie” built them most of the time, and that her husband, Mr. Shelton, built them some of the time.
Another witness, who had known H. L. Trundle for twenty- seven or twenty-eight years, said that while Trundle was living with Shelton at Houston he came to witness’ store and talked to him a good deal. In these conversations he told witness that “Ruthie was his youngest child, and that he preferred to live with her, and that he would make his home with her the balance of his life; that he had willed Mrs. Shelton the Ed. Trundle place.”
Another witness testified that he had known H. L. Trundle for twenty-three years; that Trundle talked to him about deeding the Ed. Trundle place to his daughter, Ruthie, in 1896, when he was speaking about his business generally; said he “was going to make the place known as the Ed. Trundle place over to Ruthie, or that he had done so.” The last time witness talked with Trundle was at Perryville in 1905, and there Trundle told witness “that he had deeded the Ed. Trundle place to his daughter, Ruthie.”
We are of the opinion, in view of the above testimony, that the finding of the court that there was “a contract’ upon the part of Trundle, moved by consideration, to convey to Ruth L. Shelton the lands involved in this suit” is in accord with the testimony.
The testimony also warranted the finding of the court that there was “a material consideration inducing Trundle to make said instrument of writing conveying the lands to his daughter, which was that he had been living with her and her family, and that she would take care of him throughout his old age, in the future as in the past, until his death, which she agreed to do and did do;” and also “that, in consideration of the above services, he delivered said instrument of writing to the said Ruth L. Shelton, together with all title papers involved in this, case.”
The testimony of the appellee shows that there was a contract between her and her father by which she was to render him certain services in the future, and, that in consideration for these services and also the services that she had performed for her father in the past, he was to deed or will to her what is described in the testimony as the “Ed. Trundle place.” The testimony shows that she had complied with the contract on her part by rendering the services called for by-the contract, and that these services were valuable. The testimony also shows that her father also executed the contract on his part, afterwards making the will and delivering the same to the appellee. Here the verbal contract to make a future conveyance of land by will or deed was afterwards performed by appellee rendering the services which were the consideration for the conveyance by the father, and her father executed the will and delivered the same to the appellee in accordance with his contract. Therefore, conceding that the contract at first would have been within the statute of frauds requiring agreement for the conveyance of land to be in writing, still this contract was taken out of the statute by the full performance thereof by appellee and by the making of the will or deed on the part of Trundle. Section 14, Current Law, 2410-11, note 89; Dalby v. Maxfield, 244 Ill. 214.
The testimony of the appellee was definite and certain to the effect that in consideration of her services to him her father was to make her a deed or will to the “Ed. Trundle place;” and her testimony and the testimony of other witnesses shows .that the contract was recognized as binding on the part of her father by his making a will and delivering the same to her which described the “Ed. Trundle place.” That the will was to be made and was afterwards executed in accordance with the contract is established by clear and convincing testimony.
In the spring of 1906, H. L. Trundle wrote to his son-in-law, J. E. Little, as follows:
“I don’t want Shelton to have the benefit of another dollar that I can avoid. You know that I have deeded that place to Ruthie and the children. It is more than likely that Ruthie will not live to be very old, but will likely go off young like the balance of her sisters, for she takes very little care of her health. If she were to die off, young Shelton would have the benefit of that land until the children became of age. He is certainly the most obnoxious man, in my judgment, that I ever met with.”
A few weeks after this letter he wrote another letter to the same party stating: “I have burned' that document which I wrote to you about.”
Other witnesses testified that Trundle, a short awhile before his death, was complaining because Shelton had refused to let him (Trundle) have a buggy and horse to go down on the farm. In one of his letters to his son-in-law Little he complained that no one seemed to take any interest in him, and said he believed they would be glad if he could drop out. But it appears from the testimony that the reason given for his dislike for Shelton a short time before his death was that he (Shelton) had refused to let him (Trundle) have a horse and buggy to go down on the farm. Trundle told his brother that he had destroyed the will because Shelton had refused to let him have his buggy and horse.
Trundle told another witness: “The way Shelton had treated him, he was not going to let him have it; that he had asked for a horse and buggy, and Shelton had refused him.” He further said to this witness: “I think a heap of Ruthie and the children, but I am not going to let them have my property. I burned the will this morning, and after I am dead if you hear them inquiring about the will you will tell them that I burned it.”
The appellee explains the reason for her husband’s conduct in refusing him the horse and buggy as follows: “During the winter of 1905-6 and the spring of 1908, he was sick, cross and fretful. We objected to his taking trips alone, as it was too hard on him, and one time the last year of his life he took my little boy and went to the Ed. Trundle place on the river, got sick and had to be brought home. After this we didn’t want him to have a horse and buggy alone. He asked for a buggy and horse, and I objected and told Mr. Shelton about it, and Mr. Shelton tried to reason with him that he was too weak and feeble to make the trip to his place. My father got very angry with Mr. Shelton because he didn’t furnish him the horse and buggy.”
The appellee further testified that her father’s mind at this time “was bad — was weak, and his body was weak.” She says: “He was very fractious; he had never been that .way before; we thought from the way he was acting he would not be here long; it was about the middle of February, 1906, when he wanted this buggy and horse; the weather was cold and the roads muddy.”
Other witnesses to whom Trundle complained of the conduct of Shelton in not letting him have the horse and buggy say that he “was very weak and feeble.” Trundle’s own brother stated: “He (Trundle) made a trip to his farm in the winter or spring of 1906, and it made him sick;” “he took cold and suffered for several weeks from it. This was the trip that Shelton had refused to let him have the buggy and horse.” This witness testified also that “he never knew of Shelton or appellee mistreating his brother.” The appellee’s testimony shows that her husband was very indulgent and kind to her father in his old age; that neither she nor her husband ever at any time mistreated him. On the contrary, they gave him the best treatment they could; they would get up at night and wait on him, and Shelton would bring in wood and make him fires and set up with him at night. At the time he wrote the letter to his son-in-law, Little, stating that he had. burned the document, “he wás in a very bad, weak and feeble condition,” and appellee and her husband “didn’t think that he was at himself.”
The above testimony shows conclusively that Trundle destroyed the will that he had made to appellee. It also shows the reason why he destroyed it and the condition of his body and mind at the time of its destruction.
The testimony is hardly sufficient to justify the finding of the court that Trundle was laboring under senile dementia at the time he destroyed the will. It reveals him as enfeebled by age and disease, weak in mind and body, fractious and easily disconcerted, but it does not go to the extent of showing that he did not possess mental capacity sufficient to enable him to understand the effect of his conduct in the destruction of the will. The only question, therefore, is whether or not H. L. Trundle, after having entered into the contract on his part to make a will, could afterwards by revoking the same deprive appellee of the right to have specific performance of the contract, against the other heirs of Trundle, to convey to her the Ed. Trundle place the same as if the will had not been destroyed.
As we have seen, the contract was taken out of the statute of frauds by the acts of the parties; but, as the will could only take effect after Trundle’s death, his revocation by the destruction thereof left appellee to resort to the contract. The will was destroyed, but that did not destroy the contract by which her father bound himself to make a will of the land to appellee.
In Maddox v. Rowe, 28 Ga. 431, it was said: “The father made in writing what he thought was his will, and in that writing he said that he gave the two lots of land in controversy to the son. The contract on his side was that he should give these two lots to the son. Here then is a writing that may serve to help to prove the contract. The case is such therefore that it is not left wholly at the mercy of parol evidence. True, this writing was void as a will, but that did not prevent it from being good to help prove the contract.”
So here, the making and delivery of the will, taken in connection with the other testimony, was sufficient to show that Trundle had entered into the contract.
The contract being proved, appellee should have specific performance thereof against the other heirs of Trundle by having them convey to her the Ed. Trundle place the same as if the will had not been destroyed.
In the case of Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 773, it is said: “There can be no doubt but that a person may make a valid agreement, binding himself legally to make a particular disposition of his property by last will and testament. The law permits a man to dispose of his own property at his pleasure, and no good reason can be assigned why he can not make a legal agreement to dispose of his property to a particular individual, or for a particular purpose, as well by will as by a conveyance to be made at some specified future period, or upon the happening of some future event. It may be unwise for a man in this way to embarrqss himself as to the final disposition of his property, but he is the disposer, by law, of his own fortune, and the sole and best judge as to the time and manner of disposing of it. A court of equity will decree the specific performance of such an agreement upon the recognized principles by which it is governed in the exercise of this branch of its jurisdiction.”
In Bolman v. Overall, 80 Ga. 451, it is held, (quoting syllabus): “A will giving property to one in consideration of personal services rendered and to be rendered to the testator is valid and may be enforced as a contract after the testator’s death.” Baker v. Syfritt, 125 N. W. 998, cases cited and head note for other cases; Carmichael v. Carmichael, 72 Mich. 76, 16 Am. St. Rep. 528, and note on p. 536; Gupton v. Gupton, 47 Mo. 37; Bird v. Pope, 73 Mich. 483; 8 Am. & Eng. Enc. Law, (2 ed.) 1017, and other cases cited in note 6. See also p. 1020, note 5; Hespin v. Wendeln, 85 Neb. 172.
We conclude, therefore, that the chancellor was correct in dismissing the complaint of the appellants for want of equity, and in decreeing a specific performance in favor of the appellee according to the prayer of her cross complaint-.
The judgment is therefore affirmed. | [
-15,
45,
-100,
-51,
-120,
-28,
26,
-70,
122,
-93,
51,
91,
-21,
-2,
72,
45,
34,
77,
83,
126,
-93,
-77,
94,
-95,
-48,
-77,
-15,
-33,
-79,
-51,
-11,
-42,
12,
48,
-120,
-15,
98,
-62,
-27,
92,
-116,
-124,
-117,
-32,
91,
-14,
48,
-31,
60,
13,
117,
-82,
-77,
106,
60,
119,
78,
46,
-33,
46,
16,
32,
-86,
6,
-5,
79,
-127,
103,
-104,
-123,
74,
42,
-112,
53,
0,
-8,
51,
54,
-122,
116,
79,
-119,
13,
52,
98,
96,
-123,
-17,
-88,
25,
6,
-2,
-99,
-90,
-30,
113,
2,
105,
-66,
25,
124,
-64,
126,
124,
-90,
-60,
92,
-32,
11,
-82,
-44,
-111,
29,
-128,
-112,
3,
-29,
5,
33,
113,
-49,
-94,
92,
70,
122,
-101,
-114,
-8
] |
Hart, J.
The indictment against the appellant, George Fisher, contained two counts: the first count charged him with the larceny of four sheep, and the second with receiving the sheep knowing them to have been stolen. The jury returned a verdict of not guilty on the first count, and convicted him on the second count. From the judgment of conviction the defendant has appealed.
The defendant and his brother, John Fisher, lived with their mother about twenty miles from Hot Springs. On the night of September 3, 1911, the brother, Gus Jones, Earl Lee, and Walter Careley, who were all at Mrs. Fisher’s residence, concluded to go to Hot Springs. George Fisher went ahead of the other boys, intending to stop at a Mr. Gilliam’s to borrow some money. The other boys at a later hour left Mrs. Fisher’s in a wagon. When they arrived at Mrs. Nancy J. Garrett’s place, they stole four of her sheep and put them in the wagon. When they arrived at Mr. Gilliam’s, the defendant came out, and got in the wagon with them. One of the witnesses says that he laughed when he saw the sheep in the wagon, and made no objection to the boys carrying them. The other boys say that he strongly objected to them carrying the sheep, and advised them to turn them loose. One of the boys says that the defendant drove the wagon a part of the time while he was in it. Later on he again got out of the wagon, and, not having succeeded in borrowing money from Gilliam, went to see another person. He borrowed $37.50 from him, and gave a mortgage to secure it, and then went on to the city of Hot Springs. He was not with the other boys after he left the wagon until after they had disposed of the sheep and divided the proceeds of sale. The other three boys proceeded on their journey, sold the' sheep for $8, and each of them received $2 of the proceeds of the sale. The defendant did not have anything to do with the sale of the sheep, and the only reason he did not inform on the boys was because he did not want to tell on his brother. Under this state of the record, the sufficiency of the evidence to sustain the verdict is questioned.
It will be seen that the defendant did not have nor exercise any control whatever over the sheep, and did not in any wise aid in the disposal of them; he did not receive any portion of the proceeds of the sale, and did not have any connection whatever with the transaction except to ride in the wagon with the boys for a while. Under these circumstances, we do not think the evidence was sufficient to warrant the verdict."!" ¡'
jaj! The judgment will therefore be reversed, and the cause remanded for a new trial. | [
112,
104,
-68,
15,
42,
-32,
42,
-70,
-61,
-53,
117,
-45,
-19,
-57,
4,
113,
-30,
61,
-44,
105,
-42,
-73,
7,
3,
-110,
-13,
49,
-59,
-80,
77,
-92,
-44,
13,
48,
74,
29,
6,
-120,
-27,
-36,
-114,
-127,
-72,
-27,
-15,
80,
48,
47,
52,
74,
97,
-114,
-22,
42,
60,
83,
105,
44,
107,
63,
-48,
-7,
-70,
7,
-87,
6,
-78,
34,
-72,
5,
-24,
47,
-104,
113,
40,
-24,
123,
-90,
-126,
84,
45,
-117,
-116,
96,
102,
1,
21,
-63,
56,
72,
46,
-1,
-115,
-89,
48,
72,
3,
97,
-66,
-99,
114,
80,
6,
112,
-27,
-99,
93,
108,
2,
-49,
-108,
-93,
13,
-87,
-116,
-103,
-13,
37,
32,
113,
-51,
-30,
92,
101,
112,
-97,
15,
-13
] |
McCulloch, C. J.
In the year 1889 one Brewer sold and conveyed two lots in the town of Swifton, Jackson County, Arkansas, to appellee, R. W. Sharpe, and his mother, Sarah Sharpe, and brother, George M. Sharpe, as tenants in common. Sarah Sharpe died intestate on January 19, 1891, leaving surviving as heirs at law her children, the appellee, and George M. Sharpe, James B. Sharpe, C. L. Sharpe, and Lulu E. Coffin. Some time during the year 1892 appellee disappeared from his home at Wynne, Arkansas, and was not heard from by any of his friends or kindred until the year 1909, when his brother, C. L. Sharpe, received a letter from him written in California, where he resides. In the meantime James B. Sharpe, on June 11, 1897, conveyed his undivided interest in the lots, by quitclaim deed, to M. E. Coffin; on March 23, 1901, C. L. Sharpe, George M. Sharpe and Lula E. Coffin conveyed their undivided interests in said lots to said M. E. Coffin; and on December 9, 1899, M. E. Coffin conveyed all of her interest in said lots to F. M. Parsons, one of the appellants, who, on April 26, 1905, conveyed one of the lots to his co-appellant W. T. Altman. Appellant Parsons took possession of the lot at the date of his said purchase, and with his grantee, Altman, occupied the same continuously up to the present time. At the time of the said purchase by appellant Parsons there was a small dwelling-house on lot No. 6, the other lot being fenced and used as a garden. During the period of his occupancy, he expended the sum of $432.29 in enlarging and repairing the house, and appellant Altman, after the conveyance of lot No. 5 to him, built a dwelling house thereon at a cost of $800. They also paid taxes on the lots each year. Appellee wrote to his brother, C. L. Sharpe, from California in the year 1909, and subsequently employed an attorney, who instituted for him separate actions in the circuit court of Jackson County “against appellants, Parsons and Altman, on December 17,1909, to recover possession of said lots. Appellants each pleaded the seven-years statute of limitations, and by consent of all parties the cases were consolidated and tried together before the court sitting as a jury.
The evidence tends to establish the fact that appellee was sick and very feeble when he left Wynne in 1892, and that his relatives, after failing to hear from him, supposed that he was dead. None of them ever heard from him until his brother, C. L. Sharpe, received the letter from, him in 1909, as before-stated. J. B. Coffin, who is the husband of M. E. Coffin, and negotiated the purchase of the property from the Sharpes, testified that when he negotiated the purchase they all took it for granted that appellee was dead, and that his (witness’) wife, M. E. Coffin, was getting title to the whole property, having previously purchased the interest of James B. Sharpe, one of the heirs. C. L. Sharpe, who represented the other grantors in the negotiations, testified that nothing was said about his brother (R. W. Sharpe) being dead, but admitted that they had not heard from him since he left in 1892, and all supposed he was dead. Appellant Parsons testified that he purchased the lots and paid the full value therefor on the basis that he was getting title to the whole — that appellee had not been heard from since he left and was supposed to be dead — that his grantor represented to him that all the heirs were satisfied appellee was dead. This is not contradicted. He testified further that he occupied the property, claiming it as his own, and improved it.
The testimony further shows that, aside from the improvements placed- upon the lots, they became greatly enhanced in value after the conveyance to appellants.
It is not explained by any one why M. E. Coffin conveyed •the property to Parsons before the date of her deed from the Sharpes, but it seems to be conceded that she intended to convey all of the title that she received from them, and it is fair to assume, from the circumstances, that when she conveyed to Parsons she had already negotiated the purchase from the Sharpes, though the deed to her.was not executed by them until later.
The court found that at the time of the said conveyance to the Sharpes appellee’s “whereabouts were unknown, and he was supposed to be dead by the parties to said conveyance,” that appellants had the sole use and occupancy of said property since their purchase, and that they had made improvements on the lots to the amount stated above, but declared that appellants and appellee were tenants in common, and that, “there being no notice to the plaintiff that the claims of the defendants, Parsons and Altman, were adverse to his, their possession can not in law amount to an adverse holding thereof as against said plaintiff.”
The rule sustained by the overwhelming weight of authority with reference to conveyances by one or more cotenants to a stranger, and the character of possession taken thereunder, is correctly stated as follows:
“The conveyance by one cotenant of the entire estate gives color of title; and if possession is taken, and the grantee claims title to the whole, it amounts to an ouster of the co-tenants, and the possession of the grantee is adverse to them.” 1 Am. & Eng. Enc. of Law (2 ed.) p. 806, and numerous authorities there cited.
That rule was recognized by this court in Brown v. Bocquin, 57 Ark. 97.
On the other hand, the principle is well settled that where a conveyance is executed to a stranger by one tenant in common, purporting to convey only his undivided interest, he becomes a tenant in common with the other tenant (17 Am. & Eng. Enc. of Law (2 ed.) p. 661); and, in order to constitute an ouster, “the tenant out of possession must have actual notice of the adverse holding or the hostile character of the possession must be so openly manifest, that notice on his part will be presumed.” 1 Am. & Eng. Enc. of Law (2 ed.) p. 805.
The conveyance to appellant Parsons, being a conveyance only of the undivided interests of some of the tenants in common, falls within the latter rule, and is controlled by the case of Singer v. Naron, 99 Ark. 446, where we declared the law to be that, “in order for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his- adverse claim must be brought home to them directly or by such notorious acts of an unequivocal character that notice may be presumed.”
The case of Singer v. Naron is strikingly like the present one in that one of the tenants in common disappeared and had been absent for a long time, and returned to claim his interest after his cotenants, supposing him to be dead, had openly occupied the property, claiming it as their own, and conveyed away portions of it. We held that the facts of that case presented a question for the jury to determine whether or not there had been an actual ouster by the cotenants and an adverse holding for the statutory period.
Another essential is that there must have been an intention. manifested by overt acts or conduct, on the part of the occupying tenant to claim adversely and in hostility to the rights of the absent cotenant, which may be proved by direct evidence or by circumstances. Bayles v. Daugherty, 77 Ark. 201; Goodwin v. Garibaldi, 83 Ark. 74.
The special findings of the circuit judge convince us that he meant to declare the law that the possession of appellees could not amount to an adverse holding because appellant had no actual notice thereof. This was error. The case should have been determined on the question we have herein indicated, and not solely on the question of actual notice.
For the error indicated, the judgment is reversed, and the cause remanded for a new trial. | [
-15,
111,
-80,
12,
-88,
104,
56,
-104,
98,
-85,
101,
91,
-21,
80,
17,
105,
-30,
13,
85,
-21,
-27,
-73,
83,
106,
18,
-13,
-15,
-49,
-77,
77,
-12,
-42,
76,
96,
-54,
29,
-62,
-96,
-57,
-100,
14,
0,
-120,
120,
95,
80,
48,
43,
80,
10,
85,
47,
-5,
35,
53,
-21,
108,
44,
-55,
61,
81,
-7,
-102,
-100,
-97,
23,
-127,
54,
-48,
3,
72,
44,
-112,
53,
12,
-24,
50,
6,
22,
84,
14,
-115,
12,
110,
-25,
42,
33,
-17,
-92,
-119,
46,
-70,
-119,
-89,
-10,
81,
75,
11,
-66,
-107,
126,
-111,
67,
126,
-28,
-116,
29,
104,
-89,
-113,
-42,
-79,
1,
56,
-108,
3,
-13,
7,
52,
97,
-49,
-22,
81,
7,
48,
-101,
-58,
-15
] |
Ward, J.
Appellee, James Shairrick, while riding as a guest in an automobile owned and driven by appellant, J. L. Scott, was injured by the alleged willful negligence of appellant in operating the automobile. Suit was filed by appellee, resulting in a jury verdict and a judgment against appellant.
The complaint contained the following material allegations of negligence: On or about the second day of March, 1954, the plaintiff was riding as a guest in an automobile owned and being operated by the defendant, J. L. Scott, who on account of willful negligence, wrecked said automobile and injured the plaintiff; that just prior to the said wreck, the defendant was willfully operating at a high and excessive rate of speed, and willfully whipping in and out of traffic and from one side of the road to the other, and was willfully passing vehicles under extremely dangerous circumstances; and although the plaintiff and others in said car earnestly protested the manner in which the defendant was driving, and made numerous requests that he slow down and get in his proper line of traffic, and warned the defendant that he was going to hurt himself or someone else, the defendant ignored them and continued to operate the automobile in a willful, wanton and careless disregard to the rights of the plaintiff and others; that at the point where the wreck occurred, the defendant was willfully attempting to pass a vehicle traveling in his direction in the face of oncoming traffic and willfully ran his vehicle into a ditch causing said wreck and personal injuries to the plaintiff.
Appellant’s answer was a general denial, contributory negligence on the part of appellee, and that appellee, being a gratuitous guest, was barred from recovery by Ark. Stats., § 75-913 and § 75-915 — commonly called the Guest Statutes.
Testimony. There is very little conflict in the testimony given by the witnesses for both sides. On March 2,1954, appellant and appellee together with Milton Van Dusen, Paul Register and C. L. Honold, all single boys in their early twenties, got together in Malvern during the noon hour and arranged to go to the horse races at Hot Springs. They left in appellant’s car with appellant driving and arrived at the race track shortly before the races began. Appellee, Van Dusen and Register went into the track while appellant and Honold went to a liquor store nearby where appellant purchased a pint of whiskey and Honold purchased a pint of vodka or gin before they joined the others inside. During the time the races were in progress and between each race all of the boys except appellant drank some beer, perhaps as much as 4 to 6 bottles each during the entire period. Appellant during this time drank the liquor as a mixed drink, perhaps mixed with beer. None of the boys were observed by the others as becoming drunk or unduly under the influence of liquor. After the wreck, however, and after the boys had been taken to different hospitals appellant’s doctor testified that he [appellant] was to some extent under the influence of liquor, while appellee’s doctor testified that he found nothing to indicate that appellee was under the influence of liquor or that he had drunk any liquor.
After the races were over appellant stayed to cash a ticket on the last race while the other boys went to the car. When appellant returned to the car no one noticed that he was under the influence of intoxicating liquor and they all got in the automobile and started home. Van Dusen and Register were in the front seat with appellant and appellee and Honold were in the back seat. While they were on a cut-off road that connects with Highway 270 appellant drove across a bridge and around a sharp curve at a speed so great that it prompted Register to ask him to slow down. Soon after they reached Highway 270 appellant drove off onto the shoulder of the highway almost hitting a mailbox, and appellee and Register protested that appellant was driving too fast and asked him to slow down. Further down the highway appellant approached a curve and Register again reminded him to be careful because he (Register) had turned over there once before. As appellant approached the curve he passed a car going in the same direction while a truck was coming in the opposite direction, and appellant in an apparent attempt to avoid a collision ran onto the gravel shoulder of the highway causing the car to skid and turn, over, injuring appellee seriously and injuring some of the other boys slightly. Appellee testified that. he. warned appellant about his fast driving and asked him to slow down more than once but the other boys remembered appellee giving such warning one time only.
Points relied on by appellant. Appellant sets out several separate grounds on which he relies for a reversal, but we deem it necessary to discuss at length only three of the assigned grounds, to-wit: (a) The refusal of the trial court to direct a verdict in his favor; (b) Giving appellee’s requested Instruction No. 4; and, (c) The refusal of the trial court to set aside the verdict.
(a) At the conclusion of all of the testimony appellant requested the trial court to instruct the jury to return a verdict in his favor, but the court refused to do so. The reason assigned by appellant for asking for an instructed verdict is that “the undisputed evidence shows appellee guilty of negligence in drinking with appellant and riding with him in his condition. ’ ’ This reason and this contention cannot be sustained. In effect this was a plea by appellant of contributory negligence on the part of appellee, yet this very question was, by proper instructions, submitted to and passed on by tbe jury. Tbe testimony in this case did not justify the court in holding as a matter of law that appellee was guilty of contributory negligence. The jury was justified in finding that appellee did not know when he entered the car to return to Malvern that appellant was under the influence of liquor. Also it is undisputed that appellee protested one or more times against the manner in which appellant was driving, and that there were other protests — all apparently unheeded by appellant.
Appellant cites Sparks v. Chitwood Motor Company, 192 Ark. 743, 94 S. W. 2d 359, and Lewis v. Chitwood Motor Company, 196 Ark. 86, 115 S. W. 2d 1072, where verdicts were directed for the defendants, and he states that they directly govern this case. The facts in both cited cases were very similar but they are readily distinguishable from the facts in this case, as a few excerpts from the opinion in the Sparks case will demonstrate. In speaking of the testimony we said: ‘ ‘ There was some conflict in the testimony but all of the testimony shows that they were all drinking and the preponderance of the testimony shows that they were all drunk.” Again it was pointed out ‘ ‘ appellant was bound to know all about it; he knew that Miller was drunk and careless, and according to all of the evidence, acquiesced in it, and made no protest.” It was also said: “Of course the guest might not be guilty of negligence simply because he failed to protest. If the occupant of the automobile did what a person of ordinary prudence would have done under the circumstances, he was not guilty of .contributory negligence.” In the Lewis case, supra, it was recognized that before the plaintiff would be barred from recovery he must know, or by the exercise of ordinary care should know, “that the driver was intoxicated or under the influence of liquor to such an extent as to make him a careless or incompetent driver.” Under the evidence in the case under consideration it was for the jury and not the court to decide the extent of appellee’s knowledge concerning the appellant’s condition as well as his opportunity for such knowledge.
Appellant cites Wilson v. Holloway, 212 Ark. 878, 208 S. W. 2d 178, to sustain Ms assertion that the negligence of appellant should be imputed to appellee. The cited case is not in point because there the occupants of the car were on a joint enterprise and damages were sought against a third party and not against the driver of the car in which they were occupants.
Associated with above contention is the further argument that “the evidence was insufficient to prove willful and wanton negligence as required by the Guest Statutes.” It is specifically urged that, under the Guest Statutes, the evidence failed to show willful and wanton negligence on the part of appellant. Appellant says he considers Ark. Stats., § 75-913 and § 75-915 to be synonymous with respect to the conditions of recovery. We agree with this statement since it was similarly so stated in Steward, Administrator v. Thomas, 222 Ark. 849, 262 S. W. 2d 901. In the first cited statute, before there can be a recovery, the automobile must be “willfully and wantonly operated in disregard to the rights of others.” In the latter statute the “injury shall have been caused by the willful misconduct” of the driver.
It is clear from the evidence in this case that the trial court had no right to declare as a matter of law that appellant’s negligence was not of the degree described in the above statutes. The degree of appellant’s negligence was therefore a matter to be presented to the jury, as was done here. In McAllister, Administrator v. Calhoun, 212 Ark. 17, 205 S. W. 2d 40, we quoted with approval from Splawn, Administratrix v. Wright, 198 Ark. 197, 128 S. W. 2d 248: “Whether an automobile is being operated in such a manner as to amount to wanton and willful conduct in disregard of the rights of others must be determined by the facts and circumstances of each individual case.” We further stated “the excessive rate of speed at which the car was being driven at a time when war-time driving restrictions were in effect together with the driver’s failure to heed the protests of guests, were sufficient, in our opinion, to make a ques tion for the jury on the issue of willful and wanton negligence. ’ ’
It is true, as stated in Cooper v. Calico, 214 Ark. 853, 218 S. W. 2d 723, that gross- negligence is not enough, and, as stated in the Splawn case, supra, the “grade of negligence should be unusually strong and convincing before the operator can and will be convicted of such.”
Under many circumstances it is difficult to draw the line between willful negligence and gross negligence. “To be willfully negligent,” as stated in the Splawn case, supra, “one must be conscious of his conduct, and, although having no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.” Since the testimony here indicates that appellant was driving at an excessive speed under the existing conditions and since it shows that he barely avoided a wreck on two different occasions just previous to the wreck and that he repeatedly ignored warnings to drive more carefully, we are forced to the conclusion that the trial court properly allowed the jury to decide the degree of appellant’s negligence.
(b) Appellant strongly insists that it was error for the trial court to give appellee’s-requested Instruction No. 4. In this instruction the court told the jury in effect that if they found appellant ivillfully drove his car at such speed and in such manner as to contribute to the wreck, it could take that into consideration in determining whether appellant was guilty of ivillful misconduct in the operation of his ear. Appellant’s specific objection is that the court used the words “willfully drove” when he should have said “willfully and wantonly drove” the car in disregard to the rights of others. We think this objection is not well taken. It will be observed that the gist of the instruction is not the words “willfully drove” but it is the words “willful misconduct,” and that the latter words are the exact words used in Ark. Stats., § 75-915. Also in the Steward case, supra, it was said: “It is hard to see how a person could act in willful and wanton disregard of the rights of others without being guilty of willful misconduct or vice versa.” Under the quoted statement, with which we agree, it appears then that' the wording of the instruction objected to by appellant is sufficient to comply with either or both of the Guest Statutes.
(c) It is insisted by appellant that the trial court should have set the verdict aside because of misconduct on the part of the jury. On appellant’s motion to set aside the verdict it was contended in effect that the jury obtained [inferentially] information that appellant was protected by insurance, and that he [appellant] knew nothing about it until after the jury had returned its verdict. We have carefully read the record and have concluded that the trial judge did not commit reversible error in refusing to set the verdict aside. According to the testimony of the sheriff, who was the only witness on the motion, the incident complained of was substantially this : After the jury had been charged by the court and after the attorneys had made their arguments, the sheriff in company with several other men, was in a room adjacent to the courtroom. Someone pointed to a certain person and asked the sheriff who he was. It developed that the person inquired about was Herman Lindsey, former Chief of the Arkansas State Police. At that time someone in the group mentioned that he was an insurance adjuster. When the sheriff was asked if all of the members of the jury were in the group he stated “One Avas. One of them was a member of the jury but who the others were I just really don’t recall.” The person who identified Lindsey as an insurance adjuster was not a member of the jury but he thought the man who asked about the identity of Lindsey was a member of the jury. He was sure that nothing was said about the appellant being covered with insurance. At the hearing on the motion the attorney for appellant stated that Herman Lindsey Avas not subpoenaed as a witness for the defendant but that he had been directed to be present and that he was excused from the witness rule and permitted to remain in the courtroom throughout the trial. It was shown that Lindsey was in and out of the courtroom during the trial, but it was not shown that he sat with or in any way was associated with the defendant or his counsel.
Under the above factual situation it seems unlikely that the jury was in any way prejudiced, or that the trial court abused its discretion in refusing to set aside the verdict. Appellant objects to the court’s refusal to allow him to call one of the jurors to testify at the hearing on the motion. The trial court was of course correct. A juror cannot be examined to establish a ground for a new trial unless the alleged ground be that the verdict was arrived at by lot. See Ark. Stats., § 43-2204. Although this statute is digested under title of Criminal Procedure, it has many times been held to apply in civil cases. See St. Louis, I. M. and S. R. R. Co. v. Cantrell, 37 Ark. 519, 40 Am. Rep. 105; Griffith v. Mosley, 70 Ark. 244, 67 S. W. 309; Reiff v. Interstate Business Men’s Accident Association of Des Moines, Iowa, 127 Ark. 254, 192 S. W. 216; Chess & Wymond Company v. Wallis, 134 Ark. 136, 203 S. W. 274; and Burns v. Vaughan, 216 Ark. 128, 224 S. W. 2d 365, 12 A. L. R. 2d 433.
Appellant makes certain allegations of error on the part of the trial court in giving certain instructions requested by the appellee and in refusing to give certain instructions requested by him. We have carefully read all of the instructions questioned by appellant and find no reversible error. Some of the alleged errors were cured by other instructions given by the court and some have already been disposed of in this opinion.
Affirmed.
Chief Justice Seamster not participating. | [
-16,
-24,
-40,
-115,
9,
-24,
42,
-118,
87,
-126,
-25,
-109,
-17,
-27,
64,
39,
-6,
-65,
85,
43,
-11,
-93,
6,
-94,
-78,
-13,
121,
77,
7,
75,
-28,
-2,
72,
32,
10,
-43,
-26,
8,
-51,
90,
-58,
-86,
-101,
-28,
-103,
-46,
120,
122,
20,
79,
49,
-98,
-61,
46,
51,
91,
109,
120,
107,
45,
-31,
112,
-49,
5,
126,
18,
-79,
36,
-65,
5,
76,
27,
-104,
49,
32,
-4,
51,
-90,
-126,
-11,
105,
-101,
8,
38,
102,
33,
25,
-59,
-84,
-99,
46,
-82,
15,
-121,
-77,
89,
72,
9,
-106,
-99,
123,
0,
13,
124,
-7,
85,
88,
32,
-125,
-21,
-112,
-127,
-19,
116,
-106,
22,
-29,
-115,
36,
113,
-54,
-9,
92,
69,
114,
-101,
71,
-110
] |
Kirby, J.,
(after stating the facts). It is contended by appellant that it made no contract with appellee for the delivery of the ties to it, and with this contention we agree. Certainly, the letter expressing a willingness to take all the ties of certain kinds, grades and specifications that appellee might make and deliver at the designated place along the right-of-way of the railroad line can not be held a contract, and all the correspondence between the parties does not, in our opinion, show any contract of sale of the ties. Nowhere did appellee agree to sell any ties whatever to appellant nor to make or deliver to appellant any number of ties, within a specified time, or at all. In other words, from the entire correspondence it appears only that the company offered to take and pay the price designated, for the ties, coming within the specifications mentioned in the letter, along the right-of-way in accordance with the terms, and would even advance ten cents per tie for the cost of hauling to the right-of-way, but it made no advance whatever, neither was it asked to do so, nor did appellee accept such offer or agree to furnish it any ties whatever, nor notify the company that he intended to or would do so, neither was he bound under the circumstances to sell or deliver to the company any ties at all. Not being bound himself to the sale or delivery of the ties, there was no contract between the parties, since it was not binding upon both of them. Eustice v. Meytrott, 100 Ark. 510; Turner v. Baker, 30 Ark. 194.
Appellee could not recover damages for the breach of an alleged contract which did not, in fact, exist. The judgment is reversed, and the cause dismissed. | [
-112,
124,
-36,
-83,
26,
98,
43,
-104,
-15,
-31,
39,
87,
-49,
-60,
-112,
99,
-25,
109,
112,
122,
117,
-93,
71,
98,
-45,
-109,
-13,
-52,
-79,
109,
-26,
-52,
76,
32,
-54,
-43,
102,
66,
-59,
92,
-50,
36,
-84,
-24,
-39,
-64,
52,
27,
20,
79,
81,
-114,
115,
38,
24,
-61,
-83,
46,
-19,
57,
-64,
121,
-77,
-57,
125,
6,
-79,
36,
-99,
35,
-54,
46,
-104,
53,
0,
-56,
114,
-90,
-122,
116,
9,
-7,
8,
98,
99,
32,
5,
-19,
-100,
-36,
46,
-2,
-115,
-26,
-44,
24,
11,
97,
-65,
-99,
66,
80,
-90,
126,
-14,
13,
31,
108,
11,
-113,
-76,
-93,
13,
118,
-108,
7,
-50,
51,
19,
112,
-49,
-80,
93,
103,
50,
-101,
-113,
-6
] |
Mehaffy, J.
This action was begun by appellees who alleged in their complaint that they were the owners of a home, consisting of two lots with residence thereon, in G-urdon, Arkansas, and that they were occupying this as their home. The property is near the railroad tracks, switch yards and roundhouse of appellant. In 1927-1928 appellant constructed and equipped a coal chute, it being so constructed that it could serve four different engines at the same time. It was equipped with a carrier to carry coal about 80 feet in height and in operating it made great noise and carrying the coal to such height causéd a continuous sifting of coal dust in the air which settled upon appellee’s property and other adjacent property. It was alleged that the coal dust damaged appellees’ property, including their furniture and other parts of their home. That said coal chute constituted a continuous nuisance to the peace, comfort and enjoyment of the occupants of said property; that the peace and comfort of appellees ’ family was continuously disturbed and interfered with by employees of appellant carelessly and negligently operating appellant’s trains in the switch yard and roundhouse, causing loud, continuous and prolonged whistling and noises which were not proper or necessary to the operation of the trains; that the operation and handling of the coal chute constituted a continuous nuisance and appellees asked that it be abated. They also asked judgment against the appellant for the sum of $3,000 damages to their property. The complaint was -filed on July 30, 1931.
Appellant filed answer denying all the material allegations. of plaintiffs’ complaint, and alleging that the coal chute was completed and in operation more than three years before the suit was filed; that, if appellees’ property was damaged by the erection and operation of the coal chute, the damage was an original damage inflicted upon the property by the erection of the coal chute; that the coal chute is a permanent structure and had been in continuous operation since completed; that it was a necessary instrumentality for the use of appel-' lant in the operation of its business as a common carrier; that, if any cause of action accrued for damages to the property occupied by appellees, it accrued more than three years before the suit was filed, and that the cause of action is barred by the statute of limitations. It was further alleged in the answer that appellees acquired the property on March 30, 1931, several years after the coal chute had been constructed and completed and placed in operation; that the damage, if any, occurred long before appellees acquired the property.
The evidence showed that the property was located about two hundred feet from the coal chute; that it had been damaged by the operation of the coal chute since appellees purchased the property; that when the coal is dumped, it caused a great deal of dust to rise, and, if the wind is blowing in the direction of the property, most of it goes on the property. The coal is elevated about 80 feet by an electric motor. When the engines are run under the coal chute, they drop the coal down through a space of several feet and when it hits the tender the engine can hardly he seen and the coal dust drifts over and settles in the house and on the furniture. Appel-lees’ evidence further showed that the engines made unnecessary noise; they would stand there and pop off and make loud blasts; they were always bumping cars around; the bumping can be heard a half mile. Some nights occupants of the house do not get an hour’s rest. Appellee testified that when he bought the property it appeared to be all right. Appellee did not know about the cinders and dust at the time he bought the property. Appellee estimated the difference between the value of his property before it was damaged and afterwards at between $2,500 and $3,000. The undisputed evidence shows that the coal chute was completed and the first test made May 29, 1928, and that it has been in constant use since that date. It therefore appears from the evidence that the suit was not brought within three years after the completion of the coal chute. The jury returned a verdict against the appellant for $750, and the case is here on appeal.
The appellees did not allege in their complaint that there was any negligence either in the construction or operation of the coal chute. If it had been negligently constructed or negligently operated and such negligence caused injury to appellees’ property, they would be entitled to recover, no matter when the coal chute was erected, but the structure is such that damage would necessarily result and also the certainty, nature and extent of the damage could be reasonably estimated and ascertained, and the damage was therefore original. In such cases there can be but a single recovery, and the statute of limitations against such cause of action is set in motion upon the completion of the obstruction.
We said in a recent case, speaking of a permanent structure: “If it is of such a construction as that dam age must necessarily result, and the certainty, nature and extent of this damage may be reasonably established and ascertained at tbe time of its construction, then the damage is original, and there can be but a single recovery, and the statute of limitations against such cause of action is set in motion upon the completion of the obstruction. If it is known merely that damage is probable, or that, even though some damage is certain, the nature and extent of that damage cannot be reasonably known and fairly estimated, but would be only speculative and 'conjectural, then the statute of limitations is not set in motion until the injury occurs, and there may be as many successive recoveries as there are injuries.” Brown v. Ark. Central Power Co., 174 Ark. 177, 294 S. W. 709. C. R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S. W. 127.
There can be no question but that the construction of this coal chute was a permanent structure and that it was apparent as soon as it began to be operated that the damage appellee complained of would occur.
Appellee, however, testified that, soon after he bought the property, he talked with the claim agent of appellant about the damage to his property, and the claim agent told him that he would get a settlement without suit; that the claim agent asked him not to file suit, and that he would get a settlement without it, and that was the reason he did not file suit sooner. Even if the statement alleged to have been made by the claim agent could be said to amount to a promise to pay and that this was the reason of the delay in bringing the suit, it is not shown by appellees that it was made before the action was barred.
“A debtor has frequently been held to be estopped from relying on the statute as a defense where, by acts of a fraudulent character, he has misled the creditor and induced him to refrain from bringing suit within the statutory period. And if a defendant intentionally or negligently misleads a plaintiff by his misrepresenta tions and canses Mm to delay suing until the statutory bar has fallen, the defendant will be estopped from pleading the statute of limitations. And the prevailing view seems to be that the doctrine of estoppel applied where the creditor before the debt is barred is lulled into security by the oral promises of the debtor that he will not avail himself of the statute of limitations, and suit is delayed by reason thereof.” Baker-Matthews Mfg. Co. v. Grayling Lbr. Co., 134 Ark. 351, 203 S. W. 1021; Goldsmith v. First National Bank of Ashdown, 169 Ark. 1162, 278 S. W. 22; 17 R. C. L. 884.
It appears therefore that the promise by the debtor must be made before the action is barred by the statute of limitations. When a debtor is misled by the creditor before the claim is barred, and the creditor relies on the promises of the debtor, and because of said promises does not bring suit until the claim is barred by the statute, then the debtor is estopped from pleading the statute. The facts however in the present case do not show that the promises and statements of the claim agent were made before the action was barred. In fact, it is pretty clear from the evidence that it was made afterwards. The claim would have been barred in three years after May 29, 1928, and two or three other persons claiming damages because of the construction and operation of the coal chute made statements as to their claims. These statements were all made on June 8,1931. This of course was after the cause of action was barred. If the claim agent saw appellee at the same time he saw the other persons who had claims, it was after his cause of action was barred. As the appellees did not allege negligence either in the construction or operation of the coal chute, their cause of action was barred when suit was begun.
It is contended by appellant that appellees could not maintain an action having purchased the property after the erection of the coal chute. They could not recover for any damage which occurred prior to the time they purchased it, but, if they' had brought their suit within the'time allowed by statute, they would have been entitled to recover for the damage done after they purchased it.
Appellant calls attention to several authorities to sustain its contention, but all these authorities hold that the purchaser cannot recover damages for injuries occurring prior- to his purchase, but he can recover for injuries which occurred after his purchase. 29 Cyc. 1258; 48 C. J. 737.
The appellees did allege in their complaint that the appellant negligently and carelessly operated its engines, and that they were disturbed and damaged thereby. We do not think the evidence is sufficient to show liability against the appellant in this respect. Of course, if the appellant operated its coal chute negligently or in any other way negligently caused damage to appellees, it would be liable. The appellees offered some evidence that the appellant should have used a spray, but there was no allegation of negligence in the complaint.
Having reached the conclusion that appellees’ cause of action is barred by the statute of limitations, the judgment is reversed, and the cause dismissed.
McHaNey and Butler, JJ., concur. | [
-15,
120,
-108,
-116,
-102,
97,
120,
-104,
115,
-95,
-91,
-41,
-19,
-43,
28,
37,
-29,
125,
113,
123,
84,
-77,
19,
34,
-109,
-77,
-69,
69,
-68,
79,
100,
-42,
76,
36,
-54,
21,
-122,
64,
-59,
92,
-50,
37,
-65,
108,
89,
64,
52,
123,
20,
79,
81,
-105,
-9,
44,
17,
-53,
93,
46,
-17,
41,
80,
113,
-118,
5,
124,
22,
33,
70,
-98,
5,
-56,
24,
-112,
21,
0,
-84,
115,
-96,
-111,
116,
97,
-117,
8,
98,
98,
33,
-115,
-93,
-20,
8,
39,
-10,
-101,
-89,
-78,
57,
11,
59,
-66,
-107,
122,
0,
-57,
126,
-20,
13,
93,
44,
3,
-113,
-76,
-95,
7,
32,
-98,
23,
-21,
-93,
36,
64,
-52,
-94,
92,
7,
55,
-97,
-114,
-6
] |
George Rose Smith, J.
This is an application by the petitioners for a writ of prohibition to prevent the respondent from proceeding with a chancery case in which these petitioners are the defendants. It is the petitioners ’ contention that the complaint in the court below fails to state a cause of action cognizable in equity.
The complaint was filed by three taxpaying landowners and a judgment creditor of Carden’s Bottom Drainage District No. 2. The plaintiffs allege that the defendants, who are the commissioners of the district, have been guilty of mismanagement in conducting the affairs of the district. Specifically, it is charged that the defendants have failed to select a depository for the funds of the district, have failed to require the district’s treasurer to give bond, have not kept account books, have refused to report annually the district’s financial status, have received $2,148.60 in tax collections without account ing therefor, have illegally spent $9,104.70 of the district’s funds, and, after the expiration of the time allowed for the assessment of damages resulting from the construction of the improvement, have unlawfully issued certificates of indebtedness for such damages in the amount of about $16,000. It is asserted that the commissioners are refusing to collect taxes from landowners holding such certificates and are permitting the purported damages to be offset against the assessment of benefits. The prayer is that the defendants be ordered to select a depository, to account for the money wrongfully spent, and to submit to a complete audit of the district’s affairs; that the defendants be enjoined from paying any sums upon the certificates of indebtedness; and that they be deemed officers of the court for the purpose of being compelled to comply with the court’s decree.
The petitioners rely primarily upon Ark. Stats. 1947, § 21-556, which requires the commissioners of drainage districts to file annual financial statements in the office of the county clerk. It is insisted that the statute provides an exclusive remedy in the county court and by implication divests the chancery court of any jurisdiction over such charges of mismanagement as are made in this complaint.
We do not attribute to the statute the comprehensive effect that the petitioners are able to discern in it. It merely requires the commissioners to file an annual statement of the financial condition of the district, to the end that the information may be a matter of public record, open to public inspection. The statute does not direct that any notice be given of the filing of the yearly report, nor does it require that any court take jurisdiction in the matter. In short, the statutory procedure is administrative rather than judicial. There is, it is true, a clause providing for an auditorial examination of the annual statement, but in a similar situation it was held that an act investing the state comptroller with authority to audit county records did not keep a taxpayer from suing in equity to restrain the misuse of county funds. Ward v. Farrell, 221 Ark. 363, 253 S. W. 2d 353.
This complaint asserts that the defendants have misspent funds of the district, have failed to account for specific tax monies, and have undertaken to pay certificates of indebtedness that are invalid. The plaintiffs ask that the misuse of public money be enjoined and that the commissioners be treated in effect as receivers. See Dickinson v. Mingea, 191 Ark. 946, 88 S. W. 2d 807.
It cannot be doubted that these matters are within the jurisdiction of equity. The state’s policy is declared by the constitution, which authorizes any citizen of a county, city, or town to institute suit to prevent the enforcement of illegal exactions. Art. 16, § 13. Even though the constitution does not expressly refer to improvement districts it has been repeatedly held that, in harmony with the constitutional policy, equity has jurisdiction of suits to prevent the misapplication of improvement district funds. Huddleston v. Coffman, 90 Ark. 219, 118 S. W. 1010; City of Bentonville v. Browne, 108 Ark. 306, 158 S. W. 161; Seitz v. Meriwether, 114 Ark. 289, 169 S. W. 1175. Whether equity has jurisdiction of every count in this complaint need not be decided on the pleadings alone; doubtless many of the issues will be clarified by the proof. It is enough to say at this stage that the petitioners’ request for a writ of prohibition should be granted only if the complaint states no ground at all for the intervention of equity. That broad assertion cannot be made.
Writ denied. | [
-13,
-18,
-20,
-4,
-22,
-32,
40,
-86,
65,
-85,
103,
23,
-19,
14,
4,
39,
-29,
61,
117,
120,
-57,
-74,
123,
98,
-78,
-13,
-65,
-59,
-66,
77,
-28,
-44,
72,
52,
-54,
-35,
6,
-96,
-113,
-36,
-114,
1,
9,
-27,
-7,
-64,
48,
107,
18,
15,
117,
-81,
-21,
47,
29,
-13,
73,
44,
89,
-87,
-63,
-15,
-104,
-35,
93,
5,
33,
71,
-102,
67,
72,
42,
-72,
49,
-120,
-8,
115,
-90,
-126,
116,
15,
27,
-87,
122,
102,
3,
-91,
-49,
-80,
-84,
-122,
-70,
-99,
-89,
-110,
105,
67,
-117,
-66,
-99,
124,
16,
-122,
-2,
102,
-123,
89,
44,
-121,
-50,
-74,
-73,
-115,
-93,
-118,
19,
-17,
-93,
48,
113,
-51,
-58,
94,
-57,
48,
-101,
78,
-67
] |
Robinson, J.
Appellant, Jess Askew, filed a suit in the Pulaski Chancery Court against appellee, Murdock Acceptance Corporation, asking that a certain note and mortgage be canceled on the ground that a usurious rate of interest was charged. The property covered by the mortgage is an automobile.
While the cause was pending in Chancery, Murdock filed a replevin suit in the Circuit Court alleging that, under the terms of the mortgage, the Acceptance Corporation was entitled to immediate possession of the automobile so that the car could be sold to satisfy the mortgage.
Askew demurred to the complaint in the Circuit Court, the demurrer alleging that the Circuit Court does not have jurisdiction for the reason that there is an action pending in Chancery between the same parties and involving the same subject matter. The demurrer asked that the complaint in the Circuit Court be dismissed, and that the automobile taken from Askew on the order of replevin issued by the Circuit Court he restored to him. The Circuit Court overruled the demurrer and Askew has appealed.
The pleadings in the Chancery case were made a part of the record in the Circuit Court. This was done by stipulation. However, appellee did not stipulate that such pleadings were ' admissible hut objected on the ground that they were inadmissible in the hearing on the demurrer in the Circuit Court.
The so-called demurrer should have been treated as a motion to dismiss, and when treated as such, the Chancery pleadings were admissible. The record shows that appellant Askew had filed in the Chancery Court a complaint alleging, inter alia, that he had borrowed $1,100 on his 1951 Buick automobile, motor number 63655635 (which is the same automobile involved in the replevin suit in the Circuit Court); that he was required to execute a note in the sum of $1,561.68; that he is the actual owner of the automobile; that his sister, Alice R. Askew, as a matter of accommodation signed the note and mortgage given as a security for the loan; that these facts were fully known to the defendant; and that the loan made by the Murdock Acceptance Corporation to him is usurious and void. The complaint further' made the sister, Alice R. Askew, a party defendant, and the plaintiff asks that the note and mortgage be cancelled and that the title to the car be vested in him free of all claims of the defendant.
The record further shows that the plaintiff moved that he be allowed to deposit in the registry of the Chancery Court the monthly payments required by the note, and that the payments he held subject to the order of the court. Undoubtedly, Askew’s pleading called a “demurrer” should have been regarded as a motion to dismiss when viewed in the light of the evidence introduced in support of the pleading. The character and sufficiency of a pleading is to be determined, not by what it is called bv the pleader, hut by the facts which it sets up. Ran dolph v. Nichol, 74 Ark. 93, 84 S. W. 1037. Courts regard substance of pleadings rather than form. Teal v. Thompson, 180 Ark. 63, 20 S. W. 2d 307.
The issues and the parties in both courts are the same. In the Chancery Court, Askew said he owned a certain Buick automobile; that he borrowed some money on the car, but the lender, Murdock, charged a usurious rate of interest; that the note and mortgage given to secure the loan are void and Murdock is not entitled to collect the debt.
In the Circuit Court, Murdock contended that it held a valid mortgage on the Buick automobile; that the payments on the note securing the mortgage were delinquent; and asked that the Acceptance Corporation be given possession of the automobile so that it could be sold under the terms of the mortgage. (This was the very same mortgage the validity of which was at that time an issue between Murdock and Askew in the case pending in the Chancery Court.)
Wilson v. Sanders, 217 Ark. 326, 230 S. W. 2d 19, is cited as sustaining’ the ruling that Murdock can maintain the action in the Circuit Court. But, in the Sanders case, the parties were not the same and the issues were not the same. Moreover, the second suit was filed in the same court where the first suit was pending. In the first suit, Wilson was plaintiff and some Improvement Districts were defendants. During the pendency of the litigation, Sanders acquired some kind of title to the property involved. The Wilson suit had been lying dormant in the Chancery Court for three years; no answer had been filed and no issue joined. There was no showing that a final determination in the suit of Wilson against the Improvement Districts would have concluded the issue between Sanders and Wilson. In the case at bar, the Chancery Court had authority to make whatever orders that were necessary to protect properly the interests of the parties during the pendency of the litigation, and a final determination of that cause could have completely settled the issue raised in the Circuit Court.
Appellee also relies on Garibaldi v. Wright, 52 Ark. 416, 12 S. W. 875, as sustaining the view that the case could proceed in the Circuit Court although the automobile about which the suits were brought was the same in both cases. In the Garibaldi case, the court held that a conversion suit regarding property which was in litigation in the Chancery Court did not have to be litigated in Chancery. However, subsequent to the Garibaldi case, in Chicot Lumber Company v. Dardell, 84 Ark. 140, 104 S. W. 1100, it is held that the legal issue of conversion may be adjudicated in equity where the Chancery Court has properly taken jurisdiction for any purpose.
The principle that the Chancery Court, having taken jurisdiction for any purpose, will completely settle the rights of the parties in the subject matter of the controversy is so firmly established that it needs no citations of authority. However, a few of the cases so holding are: McDonald v. Shaw, 92 Ark. 15, 121 S. W. 935, 28 L. R. A., N. S. 657; Jarratt v. Langston, 99 Ark. 438, 138 S. W. 1003; Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, 44 L. R. A., N. S. 782; School District No. 36 v. Gladish, 111 Ark. 329, 163 S. W. 1194; Hall v. Huff, 114 Ark. 206, 169 S. W. 792. Also, damages may be allowed. Evans v. Pettus, 112 Ark. 572, 166 S. W. 955.
Undoubtedly, the Chancery Court had jurisdiction to completely settle the rights of the parties. It being determined beyond any question that the Chancery Court had such jurisdiction, the question that necessarily follows is: did the Circuit Court commit error in assuming jurisdiction in the circumstances'?
The appellee cites authorities on the subject of abatement as sustaining the view that the Circuit Court case is not abated by reason of the pendency of the action in Chancery. This is not a question of abatement, but one of comity between courts. In 14 Am. Jur. 435, it is said:
“It is a familiar principle .that when a court of competent jurisdiction acquires jurisdiction of the subject matter of a case, its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of, and that no court of co-ordinate authority is at liberty to interfere with its action. This doctrine is applicable to civil cases, to criminal prosecutions, and to courts-martial. The principle is essential to the proper and orderly administration of the laws; and while its observance might be required on the grounds of judicial comity and courtesy, it does not rest upon such considerations exclusively, but is enforced to prevent unseemly, expensive, and dangerous conflicts of jurisdiction and of process. If interference may come from one side, it may from the other also, and what is begun may be reciprocated indefinitely.”
On page 438 of the same volume, it is said:
“It simply demands as a matter of necessity, and therefore of comity, that when the object of the action requires the control ami dominion of the property involved in the litigation, that court ivhich first acquires possession, or that dominion which is equivalent, draw to itself the exclusive right to dispose of it for the purposes of its jurisdiction
In 14 Am. Jur. 439, it is said:
“ Where the pendency of a suit in one court is relied on to defeat a second suit in another court of concurrent jurisdiction, the identity of the parties, of the case made, and of the relief sought should be such that if the first suit had been decided it could be pleaded in bar as a former adjudication. ’ ’
That is exactly the situation we have here. If Askew had prevailed in the Chancery case on his allegation of usury, it could have been pleaded as a complete defense in the Circuit Court in the suit filed there by Murdock.
In 21 C. J. S. 745, it is said:
“Where two actions between the same parties on the same subject, and to test the same rights, are brought in different courts having concurrent jurisdiction, the court which first acquires jurisdiction, its power being adequate to the administration of complete justice, retains its jurisdiction and may dispose of the whole controversy, and no court of coordinate power is at liberty to interfere with its action. This rule rests on comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results. ’ ’
Among the authorities for the text, C. J. S. cites the following cases: Wasson, Bank Commissioner v. Dodge, Chancellor, 192 Ark. 728, 94 S. W. 2d 720; Moore v. Price, 189 Ark. 117, 70 S. W. 2d 563; Davis v. Lawhon, 186 Ark. 51, 52 S. W. 2d 887; Wright v. LeCroy, 184 Ark. 837, 44 S. W. 2d 355; Vaughan v. Hill, 154 Ark. 528, 242 S. W. 826. These cases clearly point out that Circuit Courts and Chancery Courts are of equal dignity, and in cases where there is concurrent jurisdiction, the court that first acquires jurisdiction has the right and jurisdiction to conduct the matter to an end without interference by another court of equal dignity.
And, in Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467, Mr. Justice Hart said:
“While these remedies are concurrent, it must not be understood that concurrent remedies may be pursued concurrently. Mr. Works say: ‘Where two or more courts have concurrent jurisdiction, the one which first takes cognizance of a cause has the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgment or decree.’ Works on Courts and Their Jurisdiction, § 17.
“Mr. Bailey says: ‘In the distribution of powers among courts it frequently happens that jurisdiction of the same subject-matter is given to different courts. Conflict and confusion would inevitably result unless some rule was adopted to prevent or avoid it. Therefore it has been wisely and uniformly determined that whichever court, of those having jurisdiction, first obtains jurisdiction, or, as is sometimes said, possession of the cause, will retain throughout, to the exclusion of another; and this jurisdiction extends to the execution of the judgment.’ 1 Bailey on Jurisdiction, § 77.
“The Supreme Court of the United States says that this proposition is firmly established. ‘When a State court and a court of the United States may each take jurisdiction of a matter, the tribunal where jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed, and the jurisdiction involved is exhausted; and this rule applies alike in both civil and criminal cases.’ Harkrader v. Wadley, 172 U. S. 148.”
Beversed, with directions to issue orders not inconsistent herewith.
Mr. Justice Holt dissents; Mr. Justice G-eorge Bose Smith concurs.
Chief Justice Seamster not participating. | [
116,
101,
-72,
-52,
-54,
32,
40,
-78,
-23,
-127,
39,
-45,
-23,
-58,
80,
45,
-26,
57,
113,
121,
85,
-77,
38,
96,
-45,
-77,
-15,
93,
-91,
78,
-12,
-9,
76,
56,
-62,
21,
-58,
-62,
-123,
92,
70,
-123,
-117,
100,
-7,
-56,
48,
-77,
80,
9,
65,
-114,
-9,
46,
25,
73,
105,
42,
-17,
-87,
-48,
88,
-97,
5,
95,
7,
-79,
37,
-104,
1,
-38,
10,
-108,
49,
0,
-8,
115,
-90,
-122,
116,
75,
-103,
8,
34,
98,
2,
33,
-1,
-36,
-104,
46,
-8,
-97,
-122,
-14,
120,
75,
97,
-73,
-99,
124,
16,
71,
-2,
-2,
21,
29,
108,
3,
-49,
-106,
-109,
-81,
116,
-98,
-125,
-2,
15,
36,
113,
-49,
112,
92,
71,
62,
27,
-114,
-8
] |
McCulloch, C. J.
Appellant, W. T. Nichols, was indicted by the grand jury of Jefferson County for the crime of murder in the first degree, and his trial resulted in a conviction of that degree of homicide. He killed his wife. They were married in the year 1902, and in 1908 went to live near the house of appellant’s father in Jefferson County, Arkansas. They lived there until December, 1910, when they separated, and lived apart thereafter. Appellant continued to live with his father, which was a few miles out in the country from Pine Bluff. The deceased lived in the city of Pine Bluff. They had three children — two girls under eight years old and a boy two or three years old— which, after the separation, remained with appellant. Divorce proceedings were pending, and the court made an order directing that deceased be permitted to have the children two days in each week. She went out to the home of appellant’s father several times, and got the children, appellant being absent from home each time except the last, when the killing occurred. On September 16, 1911, deceased went out in a buggy to get the children, and was accompanied by a Mrs. Parnell, an acquaintance, who thus became a witness to the tragedy. When they got to the place, about 9 o’clock in the morning — that is, to the home of appellant’s father — one of the little girls first came out, and then appellant, who took the child in his arms and came to the gate. He and deceased talked to each other for awhile in a friendly way, and deceased asked for the keys to the house across the road where they had formerly lived. He went into his father’s house and got the keys, and proposed to go to the house with her. They went into the house where they had formerly lived, the two girls accompanying them and, according to the testimony of Mrs. Parnell, remained in the house about an hour, she (witness) remaining seated in the buggy out in the road in front of the houses. When they came back, deceased walked to the buggy where Mrs. Parnell was seated, and asked appellant, "Willie, boy, are the children ready?” and he told her to "come and see.” Deceased went up to the gate and stood there waiting for the children. In a few minutes the two girls came out, and appellant sat down on the front porch with the boy in his lap. Deceased called to the boy, asking him to come to her, but they couldn’t get him to come. Deceased then walked to the porch and was begging the child to come to her, having in her hand at the time a cap which she had brought the child, and was begging him to come get it, when appellant arose, put the child down on the floor, walked down the steps, and grabbed deceased by the throat and appeared to be choking her. She staggered -and fell down, and then got up, and was seen to be bloody. The appellant had cut her throat, as he admitted on the witness stand. She ran out the gate, the blood streaming from her, and soon thereafter died from the effects of the wound. Nothing unfriendly oceurerd between the couple on that occasion, and no harsh words were spoken except that appellant says, while they were in the house together, she spoke cross to him. So far as the testimony shows, there was nothing harsh occurred between them until appellant walked down the steps to commit the awful deed, and even then there was nothing to show that his wife was doing anything to him to arouse, or to aggravate, his anger. This is Mrs. Parnell’s account of the tragedy. Appellant’s account of the affair, as detailed on the witness stand, does not differ materially from Mrs. Parnell’s narrative, except as to just what occurred the moment before the killing. He testified as follows:
"I sat down there in a chair, and finally she eame in right up close to the gallery floor, and I was sitting there near the edge of the floor, and when she walked in, the child threw its head right down (indicating) like that in between the arm of the chair and my knee and its feet or body lying down between my knees with his face next to me, and was holding to me and crying to keep from going, and she walked up, but I asked her to let them alone and not take them away. I says, ‘Myrtle is going to school; let them alone and come after them on Friday next, in order not to take her away from school.’ She said, ‘That didn’t make any' difference — two or three days out of school didn’t make any difference;’ and she walked up and' tried to prevail on the child to come, and he would not do it; he would not look at her, and she got hold of his feet, and pulled him out of my lap, and on the impulse of the moment, it flew all over me that she had expressed herself that she wished her children were all dead and delivered, and coming in that manner to take them away from me caused me to rise to the height of anger to defend the child. I felt that I was the only one to defend it. When she pulled the child out of my lap, I stepped down the steps and plumb around her. I just throwed my arms around her neck, and I cut her throat. We fell down. I was weak, and we both fell, and she was lying on the ground when I cut her throat, we were both lying on the ground, kind of sideways.’ On cross examination, he stated that, as soon as she got hold of the child, he made up his mind to kill her, and at once walked down from the porch and grabbed her. He admitted that she" didn’t speak a cross word to him or attempt any violence toward him. In other parts of his testimony, he related some of their domestic troubles, and said that she had frequently expressed a lack of affection for the children and expressed the wish that they were dead.
The first assignment of error is as to the ruling of the court in denying a petition for a change of venue. Appellant filed his petition in due form with two supporting witnesses. Those witnesses were examined orally, and, after hearing them testify, the court decided that they were not credible persons, and denied the prayer of the petition. Neither of the witnesses showed, on examination, sufficient knowledge or information on the subject to warrant them in making the affidavit, and the court did not err in its conclusion that they were not credible persons. The petition for change of venue was filed and the witnesses examined on October 11, 1911. The court took the matter under advisement and rendered its decision thereon October 17. In the meantime, on October 13, appellant presented another petition for change of venue, with two other supporting witnesses. He therein stated, on oath, that he was surprised at the testimony of one of the supporting witnesses to the former petition. The court refused to permit the petition to be filed on the ground that the former petition was still pending. After the court made the ruling on October 17, denying the change of venue, appellant filed a third petition, supported by the same witnesses as in the second petition, but omitting the statement contained in' the second petition to the effect that appellant had been surprised at the testimony of one of the witnesses to the first petition. The court also overruled this, and appellant excepted. There are several sufficient reasons, we think, why it can not be said that the court erred in denying the last petition for change of venue. The trial judge was not in error in refusing to entertain another petition until he was ready to decide the first one, which he then had under advisement. When he announced his decision, appellant did not rest on the second petition, alleging surprise at the testimony of one of the witnesses, but filed a third petition omitting that-allegation, and this amounted to an abandonment of the second petition, and brought the case clearly within the rule announced in Duckworth v. State, 86 Ark. 857.
Another reason why we can not hold that the court abused its discretion is that appellant only alleged, in his second petition, that he was surprised at the testimony of one of the supporting witnesses. As neither of the witnesses showed, on oral examination, sufficient information on the subject to warrant them in making the affidavit, even if appellant was surprised at the testimony of one of them (witness Harper), it would not have helped his cause if that witness had testified as he expected, for the statute requires the oath of two credible persons.
Another reason why we should not disturb the court’s exercise of discretion in this matter is that appellant failed to promptly announce his surprise at the testimony of witness Harper, and the court might have concluded that the desire to present the second petition was a mere afterthought because the first effort resulted in failure. The question of allowing a defendant to present successive petitions for change of venue is one of discretion with the trial court, and the exercise of that discretion ought not to be disturbed unless it appears to have been improvidently exercised. Duckworth v. State, supra.
It is next contended that the venue was not sufficiently proved. The venue in a criminal case is an essential fact, and must be proved as alleged, but it need only be proved by a preponderance of the testimony (Wilson v. State, 62 Ark. 497), and may be proved by circumstances. Bloom v. State, 68 Ark. 336; Cage v. State, 73 Ark. 484; Douglass v. State, 91 Ark. 492. Some of the witnesses described the farm house near which the killing occurred, and one witness stated that the place described was in Nivens Township, Jefferson County. Smith v. State, 90 Ark. 438. The court and jury took notice of the location of Nivens Township, and thus knew that it was not situated on the borders of Jefferson County. St. Louis, I. M. & S. Ry. Co. v. State, 68 Ark. 561.
During the progress of appellant’s examination as a witness, he was permitted without objection to make statements as to his wife’s conduct while they lived together, and afterwards toward him and toward their children. He stated that his wife had no affection for the children, and even expressed the wish that they were dead. He proved the same thing by his father, who testified in the case. Appellant was asked by his counsel to state why he and his wife separated — whose was the fault — and the court, of its own motion, excluded the question and answer, ruling at the time that the private relations between appellant and deceased during their married life, and the state of their feelings during that time, were not material. It was not competent to prove the unpleasant relations between him and deceased while they lived together, for it was too remote to have any bearing on the conduct of the parties at the time of the killing, so far as they tended to establish the guilt or innocence of appellant. They had been separated for nine months, and had had, so far as the records disclose no communication with each other since the separation. Nor is it conceivable, in the light of the undisputed evidence in this case, how the testimony could help appellant’s cause or how he, was prejudiced by its exclusion. The court, however, subsequently let appellant prove his and deceased’s conduct toward each other, and gave an instruction limiting its consideration to the purpose of showing which of the parties was the aggressor at the time of the killing. That instruction was objected to by appellant, and it reads as follows
“20. No previous difficulties, offensive language, quarrels or unpleasant domestic relations between the parties can be considered as furnishing that extreme degree of provocation which the law regards as necessary to arouse an irresistible passion and reduce the killing to manslaughter. Evidence as to the previous language and conduct of the deceased can only be considered by you in connection with her actions at the time of the killing, in order to enable you to determine which of the parties was the aggressor if all the other evidence in the case leaves you in doubt on that question. Nor is such evidence received and to be considered in mitigation of a crime. If you are satisfied by the evidence, beyond a reasonable doubt that the defendant killed Minnie Nichols, and that such killing was willful — that is, that the act of killing was intentional; that is not justifiable or excusable as being done in necessary self-defense; that it was felonious — that is, done with an intent to commit an act which is made a felony by law; that it was done with malice as hereinbefore defined, and that it was done after premeditation and deliberation, that is, thinking about it beforehand for any period of time, however short, and resolving to take the life of the deceased, then defendant was guilty of murder in the first degree, and the previous unpleasant relations of the parties can not be considered in justification or mitigation of the offense.”
The instruction was correct in telling the jury that the previous conduct of, and the unpleasant relations between, the parties did not furnish provocation for the killing, that it did not reduce the degree of homicide to manslaughter, and did not mitigate the crime. It was unnecessary to include the other part of the instruction, for there is no evidence that there was any difficulty between the parties at the time of the killing or that deceased was the aggressor. The undisputed evidence shows that deceased committed no hostile act toward appellant, and that she was merely trying to take the children, which she had the right to do under the orders of the court, and which appellant consented for her to do. That part of the instruction did not, however, prejudice appellant’s rights in any wise. Appellant asked for instructions on manslaughter, but we are of the opinion that the court was correct in refusing them. In no view of the testimony could appellant’s crime be reduced to manslaughter. There is nothing in his own testimony which frees him from the charge of murder, and the most that can be said of it, if entirely believed, is that it leaves some doubt whether there was deliberation and premeditation so as to con stitute murder in the first degree. Without provocation sufficient even to reduce the degree of the crime, he killed his unoffending wife, and the only excuse he offers is that he acted on a sudden impulse, caused by her attempt to take with force the unwilling child. Professor Wharton lays down the rule, which is no doubt correct, that "homicide committed in passion, excited by inadequate provocation is murder in the second degree, and not manslaughter,” but that "the provocation must be judged by the res gestae, and the evidence must be confined to the facts and circumstances surrounding and preceding the killing.” Wharton on Homicide, § 168. Of course, this statement of the law must be taken with the qualification that, “in order to reduce the crime to murder in the second degree, the killing must be done in a sudden heat of passion, and not after deliberation.' ’ That is doubtless what was meant by the learned author in his statement of the law.
The court gave correct instruction's on the two degrees of murder, among other things telling the jury that “if the killing be unlawful, felonious and with malice, but done upon a sudden impulse and not as the result of an intention to kill previously formed in the mind of the slayer after deliberation and premeditation, then it is murder in the second degree.”
The evidence in the case fully warranted the jury in finding that there was no provocation whatever for the killing, and that it was done after deliberation and with premeditation, so as to amount to murder in the first degree. The judgment will therefore be affirmed, and it is so ordered. | [
-16,
108,
-92,
76,
42,
96,
10,
-72,
114,
-93,
49,
-45,
-87,
-34,
68,
105,
106,
9,
64,
105,
-91,
-73,
21,
99,
-109,
-13,
59,
-57,
-110,
-55,
-68,
-9,
92,
96,
-54,
89,
66,
74,
-63,
92,
-114,
-120,
-55,
112,
90,
18,
52,
115,
94,
7,
-59,
-66,
-93,
106,
31,
-54,
104,
44,
75,
-66,
80,
113,
10,
4,
-113,
22,
-125,
38,
-110,
-123,
104,
12,
-35,
53,
40,
-68,
115,
6,
-121,
116,
64,
-117,
12,
112,
102,
40,
-116,
-21,
57,
9,
79,
-66,
-115,
-89,
62,
65,
65,
7,
-66,
-35,
122,
-48,
14,
114,
125,
-51,
28,
-32,
-123,
-113,
-108,
-95,
7,
56,
-108,
27,
-13,
5,
52,
113,
-49,
-30,
92,
6,
89,
-101,
-122,
-46
] |
Frauenthal, J.
The defendant John Collins was indicted for the crime of murder in the first degree, charged with killing M. E. Yarbrough. He was convicted of this crime by a petit jury, and has appealed to this court seeking a reversal of the judgment entered upon the verdict. Among the grounds assigned by him why the judgment should be reversed are the following: (1) that the court committed er-
ror by refusing to excuse for cause one E. H. Ewing, who was called as a juror to try the case; (2) because the court erred in the rulings made by it on various instructions; and (3) because there was not sufficient evidence to warrant the verdict that was returned by the jury.
In selecting the jury to try the defendant, one E. H. Ewing, was summoned and called as a venireman. Upon his voir dire he made, in substance, amongst others, the following statement: that he had known the defendant about four months, and that he had heard something of the charge made against him; that he had formed and entertained an opinion as to the guilt or innocence of the defendant, but that it was based upon rumor; that he could lay aside and disregard the opinion which he had. The juror was accepted, but, before the panel of the jury was completed, he stated further upon his examination that he was in the city of Marianna upon the night of the killing, and that he there stated that he thought that the defendant ought to be lynched, and that he was willing to assist in lynching him. The defendant moved the court to declare the said Ewing incompetent to serve as a juror in the case and to excuse him for cause. His motion was overruled by the court, to which ruling exception was duly made. The defendant then challenged the juror peremptorily. Thereupon, in the further selection of the jury, the defendant exhausted all of his peremptory challenges, before the panel of the jury was finally completed. It is insisted by the defendant that the venireman Ewing was incompetent, and that the court committed error in not sustaining the motion challenging him for cause and by such erroneous ruling he was prejudiced. He contends that he was thereby forced to take a juror whom he might have challenged, as he exhausted all his peremptory challenges. In the case of Caldwell v. State, 69 Ark. 322, this court held (quoting syllabus): “An erroneous ruling that a juror is competent upon a challenge for cause is ground for reversal where the accused exhausted his peremptory challenges in challenging other jurors before the completion of the panel. ” This has been the uniform ruling of this court, and in the case of York v. State, 91 Ark. 582, the same rule was again announced and reaffirmed. In that case the court said, “ This court has uniformly held that if, after a court has erroneously overruled a challenge of a juror for cause, the defendant elected to challenge him peremptorily, he could not avail himself of the error unless he had exhausted his peremptory challenges,” thereby holding that he could protect himself against such error, and would not be allowed to suffer by so doing if he exhausted his peremptory challenges before the completion of the jury. Langford v. State, 98 Ark. 327. It follows that, if the court erred in ruling that Ewing was a competent juror, the defendant was deprived of the right given to him by the law to obtain a fair and impartial trial, and he was therefore necessarily prejudiced by this ruling of the court.
In order that the defendant may have the opportunity to obtain a jury free from bias and prejudice to try him, it is provided by our statute (Kirby’s Digest, § 2347) that each juror may be examined and cross examined on oath touching his qualification. In order for a juror to be competent, he should be wholly indifferent, both as to the person who is tried and the case for which he is tried. He must be free from bias or prejudice or from any fixed opinion as to the merits of the case, so that he will act with entire impartiality in deciding the questions of fact and in arriving at his. verdict. The bias or prejudice which will render a juror incompetent to sit in a case may arise from various causes, and depends largely upon the facts and circumstances of each case. This bias or prejudice may spring from an opinion which has been formed by the juror concerning the merits of the case. In the cases of Polk v. State, 45 Ark. 165, and Vance v. State, 56 Ark. 402, it was held that an opinion entertained by a juror requiring evidence to remove it rendered the juror incompetent; but in the cases of Benton v. State, 30 Ark. 328, Casey v. State, 37 Ark. 67, and Sneed v. State, 47 Ark. 180, it was held that an opinion by a juror relative to the merits of a case requiring evidence to remove it does not necessarily disqualify him from sitting in the case. In the case of Hardin v. State, 66 Ark. 53, these conflicting decisions are fully discussed, and the ruling made in the case of Sneed v. State, supra, was there approved and adopted, which is as follows: “The entertainment of preconceived notions about the merits of a criminal case renders a juror prima facie incompetent; but when it is shown that the impression is founded on rumor and not of a nature to influence his conduct, the disqualification is removed. ” Since then this rule relative to the competency of a juror has been adhered to and approved. But where it appears that the opinion of the juror concerning the case is fixed and was formed from talking with witnesses who purported to know the facts, then “such opinion renders him incompetent to act impartially as a juror in contemplation of law.” Caldwell v. State, 69 Ark. 322. The manifest purpose of an examination of a juror upon his voir dire is to obtain those persons as triers of the guilt or innocence of the accused who do not possess a fixed opinion of the merits of the case or such a feeling with regard to the accused as would influence their verdict. If it appears that the juror has such a fixed opinion or such a feeling towards the defendant or his cause, then he does not possess, in contemplation of law, the ability to render an impartial verdict. It appears that the murder with which the defendant was charged occurred in the vicinity of the city of Marianna. On the night after the killing and after the defendant had been arrested, the juror Ewing was in Marianna, and then stated that he thought the defendant ought to be lynched for the alleged crime for which he was being tried; and the juror further stated that he was willing to assist in lynching him. He had been asked whether he entertained an opinion as to the guilt or innocence of the defendant, and had answered that he did. It is true that he also stated that this opinion was based upon rumor, but he further stated that he heard some of the witnesses speak of the case and talked to one of them who, in the trial of the case, gave testimony relative to the dying declaration of the deceased as to the circumstances of the killing. He was also asked by the court “whether he felt that way now” (referring to his willingness to assist in lynching the defendant), and in answer thereto he said, “No.” The juror lived in the community where this alleged murder was committed, and his statement made on his voir dire that on the night of the killing he was willing to lynch the defendant for the alleged crime indicates that great excitement existed, and resentment against defendant was entertained by the people of that community, to whom the juror thus expressed himself. It shows that he must have talked to others relative to the case and formed an opinion that the defendant deserved death and became possessed of such a feeling against the defendant that he was willing to assist in lynching him. The killing occurred on September 11, 1911, and the trial of the defendant for the crime was had on October 15, 1911. It may be that the juror was able to discard the opinion which he formed from his mind and this feeling from his heart; but we think that, under the circumstances and from his statements, this opinion and his prejudice towards the defendant were so pronounced that he was not a proper person to act as a juror in his trial. We feel convinced that under these circumstances and from the statements made by the juror he had such an opinion relative to the case and such a feeling towards the defendant and his cause that he did not possess that indifference both towards the State and the defendant and that freedom from bias and prejudice which the law demands one to have in order to render an impartial verdict. It follows that the court erred in ruling that Ewing was a com petent juror to try the case of the defendant, and that this erroneous ruling deprived the defendant of that fair and impartial trial which the law guarantees to him.
Inasmuch as the judgment in this case must be reversed for the above error, we have not deemed it necessary to note the other assignments of error pressed upon our attention by the defendant. -Upon another trial it is not likely that these alleged errors will occur. In view of the fact, however, that another trial must be had, we think it proper to note that we are of opinion that the defendant was entitled to an instruction upon voluntary manslaughter. It appears from the testimony of the defendant that the killing occurred in the darkness of night, and that at the time he did not know that it was the deceased. The-defendant and one Arthur Jones were riding in a buggy near the home of the deceased when Jones fired his pistol one or more times. Deceased carne from his house and near to the buggy with a gun in his hands and cried to them to halt, and both Jones and the deceased began shooting at each other about the same time; that both. Jones and the defendant were surprised by the appearance of the deceased near the buggy and by his attack made with gun in hand, and, not knowing who he was, they feared either that they would be robbed by him or receive injury to their persons from him; and that by reason of this fear and surprise Jones fired at the deceased. This, in short, is the testimony of the defendant himself, which though contradicted in many material points by other evidence in the case, nevertheless presented an issue which, under the law, he had a right to have submitted to and be determined by the jury upon proper instructions. It appears that the court instructed the jury relative to murder in the first and second degrees, but did not instruct them at all in reference to the crime of manslaughter or the punishment for that degree of homicide, although requested to do so by the defendant. The grade of a homicide may be reduced from murder to manslaughter by reason of a passion caused by a provocation apparently sufficient to make the passion irresistible. The passion may consist of anger or fear or terror. These are the causes from which the passion springs; and, whether induced by the one or other of these causes, it will reduce the grade of' the homicide from murder to manslaughter. It is perfectly proper to show that in a given case the passion did exist for the reason that it was induced by anger suddenly aroused, or by surprise, or by fear, or by terror; and where there-is any evidence tending to show that the defendant was guilty of a lower grade of homicide than murder, the trial judge should instruct the jury in reference thereto when requested by the defendant. Ringer v. State, 74 Ark. 262; Allison v. State, 74 Ark. 453; Williams v. State, 100 Ark. 218; Stevenson v. United States, 162 U. S. 313; Wallace v. United States, 162 U. S. 466. Upon an examination of the evidence adduced upon the trial of this case, we are of opinion that there was some testimony warranting an instruction upon the crime of voluntary manslaughter.
For the error above indicated the judgment is reversed, and this cause remanded for new trial. | [
-80,
-24,
-71,
-98,
10,
96,
14,
24,
-62,
50,
-14,
115,
-83,
-102,
0,
111,
-81,
121,
84,
123,
-60,
-105,
55,
83,
-14,
-45,
21,
-43,
-74,
78,
-10,
-3,
10,
48,
-58,
-47,
-26,
66,
-27,
24,
-122,
-124,
-24,
-31,
-110,
66,
48,
62,
16,
15,
17,
-66,
-93,
42,
50,
-53,
105,
40,
123,
-71,
66,
48,
-36,
-121,
-39,
23,
-77,
-126,
-102,
7,
90,
62,
-40,
53,
10,
-8,
115,
-106,
-126,
-44,
11,
9,
12,
102,
35,
1,
60,
-55,
-88,
-87,
62,
63,
-103,
-89,
-104,
65,
67,
45,
-74,
-35,
126,
116,
14,
108,
-26,
-107,
84,
96,
1,
-49,
-108,
-77,
78,
120,
-106,
-14,
-21,
-125,
21,
112,
-52,
-6,
85,
5,
83,
27,
-50,
-99
] |
McCulloch, C. J.
The General Assembly of 1907 enacted a statute providing that it shall be unlawful, in the operation of railroads, to permit freight trains “to remain standing across any public highway, street, alley, or farm crossing * * * for more than ten minutes” or to “fail to leave a space of sixty feet across such public highway, ” etc. Appellant, in violation of this statute, partially blocked a street crossing in the town of' Ozark, Arkansas, and appellee sued for and recovered damages for personal injuries received while attempting to cross the track. The evidence shows that the train stood over the crossing and completely blocked it for about thirty-seven minutes, and then was cut and an opening of about twenty-five feet was made between the cars. The cars still covered the greater portion of the space which had been prepared for the crossing of vehicles, and those who attempted to pass over while the train stood there, including appellee, were forced to go outside of the beaten track, along a rough and unprepared way, where it was very rocky and there was no planking to smooth the way over the rails. Appellee was driving a hack, and, stopping forty or fifty feet from the crossing, waited for a considerable time for it to be opened. After it was partially opened, he discussed with another traveller the advisability of attempting to cross, and decided to do so. The unblocked part of the crossing was covered to some extent with weeds and grass, which obstructed a view of the rocks and other obstacles. Appellee started to drive over the crossing, after others had crossed, but when the wheels of his vehicle struck the rail at the place where there was no planking, it “skidded,” and threw one side of the vehicle higher than the other, causing him to lose his balance and fall out of the hack. There is no controversy as to the extent of his injuries nor as to the excessiveness of the amount of damages recovered. The question whether.appellee was guilty of negligence in attempting to drive over the partially blocked crossing was properly submitted to the jury, for it can not be said as a matter of law that it constituted negligence for him to do so.
“A person who in the lawful use of a highway, meets with an obstacle may yet proceed if it is consistent with reasonable care so to do; and this is generally a question for the jury, depending upon the nature of the obstruction and all the circumstances surrounding the party.” Mahoney v. Ry. Co., 104 Mass. 73.
This court, in St. Louis, Iron Mountain & Southern Ry. Co. v. Box, 52 Ark. 368, quoted with approval the above language of the Massachusetts court, and added that “a traveller is not compelled to abandon the use of the only highway conveniently accessible to him merely because he is apprised that it is out of repair. ”
The only point urged upon our attention here by learned counsel for appellant is that the unlawful failure of the trainmen to open the crossing was not the proximate cause of appellee’s injury. We do not agree with counsel in that contention. The partial blocking of the crossing for a longer time than the statute permits constituted negligence. Travellers are not compelled to abandon a partially obstructed crossing if its use in that condition is consistent with reasonable care for their own safety. In other words, the partial blocking of the crossing, in violation of the statute, constituted negligence on the / part of the railway company, and it became then a question for ! the jury to determine^ under the peculiar facts and circumstances' of the case, whether the traveller was guilty of contributory negligence in attempting to cross. St. Louis, I. M. & S. Ry. Co. v. Box, supra.
It does not matter whether the obstruction was caused by partially blocking the crossing with cars, or by allowing a fallen tree to obstruct the way, or by permitting the crossing to get out of repair. If it constituted an act of negligence, and on account thereof injuries resulted to a traveller who was in the exercise of due care, such negligence would be the proximate cause of the injury. The opinion of this court in the recent case of Curtis v. St. Louis & S. F. Rd. Co., 96 Ark. 394, has -some bearing on this question. There the railway company had completely blocked a crossing with a freight train in violation of a city ordinance, and a pedestrian was injured by the moving of the train while he was attempting to cross between two of the cars. The opinion seems to recognize that the railway company was negligent in obstructing the crossing and in moving the train without any effort to warn or protect travellers. But the court held that the plaintiff was guilty of contributory negligence in attempting to cross between the cars and could not recover. We quoted with approval the following statement found in 2 Thompson on Negligence § 1674:
“If the train is lawfully obstructing the crossing, that is to say, if it has not obstructed it for a greater length of time than that prescribed by statute or ordinance or, in the absence of statute or ordinance, for- an unreasonable length of time, then- a pedestrian who attempts to continue his journey upon the highway by climbing over or between the cars does so at his own risk. * * * But, after the train has obstructed the crossing beyond the length of time prescribed by statute or ordinance or beyond a reasonable time in the absence of statute or ordinance, then the railway company is guilty of an unlawful obstruction of the highway; the right of passage on the part of the public is restored. ”
The case of Paine v. Grand Trunk Ry. Co., 58 N. H. 611, though the opinion does not discuss the question especially, is authority for holding that, in a case like this, the obstruction of a highway by a train is the proximate cause of injuries sustained by a traveller who attempts to cross.
We conclude that the negligence.in partially obstructing the crossing was the proximate cause of appellee’s injury, the jury having found upon sufficient evidence that he was not guilty of negligence himself in attempting to cross The circumstances are totally different from the facts in the Curtis case, supra, with reference to the conduct of the traveller in attempting to cross between the cars in a train which was likely to be moved at any moment. Appellee was not injured by the moving of the train as in the Curtis case.
These being the only questions in the case, we think that the judgment of the circuit court was correct, and the same is therefore affirmed. | [
-78,
121,
-112,
-114,
-85,
72,
58,
-102,
81,
-93,
-27,
-45,
-81,
-62,
-107,
113,
-25,
-1,
113,
43,
-12,
-93,
67,
-61,
-78,
-45,
-93,
7,
22,
-53,
108,
87,
76,
112,
-54,
21,
69,
72,
-59,
94,
-114,
38,
-118,
104,
17,
88,
56,
122,
4,
15,
113,
-97,
-61,
42,
24,
-25,
108,
108,
75,
-84,
-55,
113,
-110,
13,
119,
4,
-127,
4,
-98,
1,
74,
57,
-104,
21,
28,
-72,
118,
-90,
-105,
-12,
105,
-39,
8,
102,
102,
33,
13,
-17,
-83,
-88,
46,
-70,
-113,
-90,
-94,
49,
11,
7,
-97,
-99,
80,
68,
14,
-6,
104,
76,
89,
104,
-123,
-53,
-80,
-79,
-3,
52,
-108,
35,
-53,
-91,
50,
113,
-50,
-10,
95,
-123,
114,
-101,
-97,
-41
] |
McCulloch, C. J.
Appellant is the owner of afractional quarter-section of land, according to the original government survey and plat, in Sebastian County, Arkansas, and instituted this action at law against .appellee, the owner of an adjoining tract, to recover the posesssion of land alleged to have been formed by gradual accretion since the year 1890 between the boundaries of appellant’s original tract on the Arkansas River and the present bank of the river. The case was tried before the court sitting as a jury, and the court found that the land in controversy was formed by accretion, and rendered judgment in favor of appellant, but only to the extent of allowing him sufficient land to fill out the quarter-section as if it had been a full quarter originally, still leaving in the possession of appellee a strip of land between that line and the bank of the river,
The court adopted the wrong rule of allotting accretions (Malone v. Mobbs, post p. 542), and this is conceded; but it is insisted on behalf of appellee that, upon the whole case, the appellant is not prejudiced by the judgment of the court, for the reason, as alleged, that there was no proof to show that the land was formed by gradual accretion. It is true that appellant introduced no proof to show the manner in which the land was formed, except that some of the witnesses stated “that the river had receded.” On examination of the pleadings, however, we find that appellant is correct in his contention that the question of the formation of the land was not made an issue in the case, the answer not having denied the allegations of the complaint on this point. Appellant, setting out the source, of his title, showing among other links in the chain, a deed from Robert S. Gibson to Paul Delorvin, dated- November 7, 1890, made the following allegation in his‘complaint: “That at and prior to the said conveyance from Robert S. Gibson to Paul Delorvin the Arkansas River was the east boundary line .of said fractional northeast quarter, and that since that time said river has gradually receded eastwardly, and thus added to said fractional section a large quantity of permanent land, amounting in all, to more than 100 acres, which is the property of plaintiff by reason of his ownership of said fractional northeast quarter.”
This is, we think, a sufficient allegation that the land was formed between the old and the new boundaries by gradual accretion. If not sufficiently definitely and certain, it should have been met by a motion to make it so. Appellee in his answer put in a denial that the Arkasas River was the east boundary line of appellant’s land at the time named. There is no denial, or attempt at denial, of the allegation concerning the formation of the lnad by gradual accretion. Therefore it was unnecessary to prove it. There is a general denial of the allegation in the complaint that appellant is the owner and entitled to the immediate possession of the lands alleged to have been formed by accretion, but this was not sufficient to put that question in issue as that was pleading a mere conclusion, and not a denial of the facts stated in the complaint. Beard v. Wilson, 52 Ark. 290. The denial was not, as contended by counsel for appellee, as broad as the allegation of the complaint. Appellant introduced proof tending to establish the location of the river bank with respect to his original tract of land in the year 1890, which was an issue in the case; but, as before stated, he introduced no proof on the other point, because it was not made an issue. It follows that the judgment of the circuit court was erroneous. The judgment is therefore reversed, and the cause is remanded for a new trial. | [
-78,
-18,
-16,
124,
-72,
96,
8,
-102,
74,
3,
117,
83,
-19,
82,
8,
113,
-29,
125,
101,
104,
-92,
-74,
5,
67,
82,
-77,
107,
71,
-78,
93,
-20,
-42,
76,
32,
-62,
-43,
-62,
98,
-63,
-98,
14,
-124,
-120,
77,
-47,
64,
52,
111,
64,
79,
117,
-65,
-14,
40,
21,
-61,
105,
46,
-49,
62,
17,
-8,
58,
12,
125,
21,
33,
118,
-16,
1,
106,
58,
-48,
49,
-108,
-4,
126,
38,
-126,
-12,
11,
-103,
12,
36,
103,
9,
45,
-17,
40,
9,
7,
-66,
-119,
-90,
-46,
73,
75,
73,
-74,
-99,
120,
-60,
78,
-2,
-32,
-123,
24,
108,
39,
-18,
-42,
-95,
7,
124,
-103,
3,
-13,
-125,
-80,
112,
-51,
-30,
76,
-57,
27,
-101,
-122,
-7
] |
Kirby, J.,
(after stating the facts). The complaint alleges that M. P. Carpenter showed to the plaintiff a certain tract of land in Mississippi County, covered with merchantable timber, and represented to him that said land and timber was his property. That plaintiff was ignorant of the location of the timber, and believed that same was located on said land as represented to him by said Carpenter, “although said Carpen ter, at the time he made such representation, well knew that the timber shown to this plaintiff was on lands belonging to the United States, and was a part of what is known on the Government plats and maps as ‘ Round Lake, ’ and is a tract of unsurveyed territory. ” That plaintiff relied upon the false and fraudulent representations so made, and conveyed to said Carpenter’s wife, Catherine Carpenter, the other defendant, at his request, the lot in Richards’ Addition to Blytheville, in consideration of the sale and conveyance by Carpenter of all the merchantable timber growing on certain lands in Mississippi County, except the oak, describing the lands, and that the said M. P. Carpenter falsely and fraudulently represented to him, the said plaintiff, that the timber shown to him was on the above-described land. That he erected a sawmill at great expense near the land and after cutting a small amount of timber therefrom was stopped by the Government inspectors. Also offered to relinquish to Catherine Carpenter any rights which he may have against the timber and asked that the title to the lot be divested out of Mrs. Catherine Carpenter and conveyed to him. That defendants be compelled to reconvey said house and lot to the plaintiff and for all general relief.
We think it is sufficiently alleged that the defendant, M. P. Carpenter, falsely and fraudulently represented to plaintiff that he was the owner of certain lands, and that the timber shown by the defendant before the conveyance thereof to plaintiff was situated upon said lands, the ones described in the complaint, that such representation was material to the making of the contract, and an inducement therefor, and that the plaintiff relied upon the truth of such representation, as it was expected and intended he should do, by the defendant, when it was so knowingly made, to his injury. The position of the parties was such that the plaintiff had the right to rely upon the truth’ of the representation, as it is alleged he did do, in conveying the lot in question, which conveyance is now sought to be set aside and cancelled. The complaint is sufficient. Neely v. Rembert, 71 Ark. 98.
It may be that the complaint is indefinite and not altogether certain, but such a defect could have been reached by a motion to make it more definite and certain and not by demurrer. The court erred in sustaining the demurrer, and the judgment is reversed and the cause remanded with directions to overrule it and for further proceedings. | [
-111,
110,
-4,
-67,
57,
104,
40,
-72,
123,
-79,
-96,
83,
-17,
-62,
9,
43,
-94,
125,
-43,
122,
68,
-93,
91,
-29,
-46,
-77,
99,
-49,
-72,
76,
-12,
85,
72,
52,
66,
-11,
-62,
-120,
-27,
88,
6,
-123,
43,
-22,
-39,
64,
60,
-97,
24,
75,
117,
-114,
-13,
44,
53,
67,
11,
46,
111,
41,
81,
-72,
-66,
31,
89,
14,
35,
102,
-100,
3,
72,
8,
-112,
53,
0,
-119,
123,
-74,
-122,
116,
13,
-103,
8,
102,
103,
32,
-3,
-81,
-32,
-40,
43,
-6,
25,
-90,
-32,
8,
3,
104,
-66,
-99,
116,
112,
118,
122,
-25,
12,
29,
108,
11,
-89,
-106,
-79,
-115,
32,
-116,
23,
-21,
15,
53,
112,
-51,
42,
93,
39,
48,
-101,
-114,
-5
] |
Robinson, J.
Appellant Walter Baxter was convicted of murder in the first degree and sentenced to death for the killing of Bert 0. Burbanks, town marshal and police chief of DeWitt. Baxter roomed at the home of Mrs. Sally Bittner. On the day of the homicide, he had some trouble with his landlady resulting in a neighbor reporting the disturbance to the police. In response to this call, Burbanks went to the Bittner home and while at the front door he was shot and killed by Baxter.
Baxter claims that he had been persecuted by Bur-banks; that Burbanks had stopped him on numerous occasions without just cause and searched him, apparently looking for illegal liquor. Appellant contends that at the time of the killing the officer was attempting to arrest him illegally; that Burbanks, while trying to make the arrest, reached for his gun; and that he (Baxter) fired the fatal shot in self-defense. On the other hand, the evidence is sufficient to sustain the verdict.
On appeal, there are numerous assignments of error. It is contended that there was error in qualifying the jury on the death penalty, but this was done in accordance with the statute. Ark. Stats., § 43-1920. Furthermore, if the court erred in excusing any particular juror, that would not be ground for reversal. Turner v. State, 224 Ark. 505, 275 S. W. 2d 24. Appellant also says the court erred in failing to keep the jury together, but this was a matter within the discretion of the court. Ark. Stats., § 43-2121. Appellant further contends that the court erred in permitting the Deputy Prosecuting Attorney to read the indictment to the jury, but this procedure is authorized by Ark. Stats., § 43-2110.
It is insisted that the court erred in failing to give defendant’s instruction No. 6 as follows: “If the deceased was about to arrest or attempting to arrest the defendant for this misdemeanor not committed in his presence and without a warrant and if this defendant resisted such an arrest and, in so doing, took the life of the deceased, then this defendant is not guilty of murder in either the first or second degree. In such case, the defendant could not be guilty of any crime greater than manslaughter.” This instruction is not a correct statement of the law, and was properly refused. According to this instruction, it would be possible for any person, with malice aforethought and after premeditation and deliberation, to kill an officer attempting to arrest him, for a misdemeanor not committed in the presence of the officer, and still not be guilty of any crime greater than manslaughter. In a situation of this kind, the law in this State is clearly announced in Coats v. State, 101 Ark. 51, 141 S. W. 197, where this court said:
“An illegal arrest is no more than a trespass to the person. ‘The attempt to take away one’s liberty is not such an aggression as may be resisted with death. Nothing short of an endeavor to destroy life will justify the taking of life.’ 1 Bishop’s New Criminal Law, § 868; Creighton v. Commonwealth, 84 Ky. 103; 4 Am. St. Rep. 193; 25 Am. & Ency. of Law, p. 278 and cases cited; Wharton on the Law of Homicide (3 ed.), § 407; Robertson v. State (Fla.), 52 L. R. A. 751.
“Mr. Bishop says that the reason why a man may not oppose an attempt on his liberty by the same extreme measure permissible in an attempt on his life may be because liberty can be secured by a resort to the law.
“So it appears that, even in a case where the defendant kills an officer in resisting an illegal arrest, he can only oppose force with force as in other cases where he is assaulted; and if the circumstances of the killing show that he acted with malice and premeditation, he is guilty of murder in the first degree. In short, he is placed in no better position than is any other person assaulted, and can only kill his assailant when the danger appears to him as a reasonable person so urgent and pressing that he is in danger of losing his own life or receiving great bodily injury.”
The court said in Edgin v. Talley, 169 Ark. 662, 276 S. W. 591, 42 A. L. R. 1194: “Although he might have believed that he was being illegally arrested, it was his duty to have submitted to the officers.”
After the introduction of the evidence was completed, the defendant requested that the jury inspect the scene of the alleged crime. Thereupon, the court said: “G-entlemen of the jury, it has been requested that you visit the scene of this alleged killing. The officers will go with you. They will point out where Mr. Burbanks fell. They are not to discuss this case with you. If they know, they will point out the room where this alleged shot came from. You can view this room. Don’t discuss the case with the officers or anyone else. After you have viewed the premises you will report back to this courtroom. ”
Ark. Stats., § 43-2119, is as follows: “When, in the opinion of the court, it is necessary that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place, which must be shown to them by the judge, or a person appointed by the court for that purpose.” Section 43-2120 provides: “The officer[s] must be sworn to suffer no person to speak or communicate with the jury on any subject connected with the trial, nor do so themselves, except the mere showing of the place to be viewed, and return them into court without unnecessary delay, or at a specified time. ’ ’
Ark. Stats., § 43-2120, was not complied with, and the officers conducting the jury to the scene of the alleged crime were not sworn in accordance with the statute. The defendant made no request that the officers be sworn as the statute provides.
Was there error in the failure to comply with the statute and, if so, was it such an error as could not be waived by the defendant? In Whitley v. State, 114 Ark. 243, 169 S. W. 952, the officers conducting the jury to the place of the alleged crime were not sworn in accordance with the statute. It was held, however, that a previous oath administered to the officers in charge of the jury sufficed. The court said:
“The sheriff and his deputy had been specially sworn in relation to their duties of keeping the jury together during the progress of the trial, and had been instructed not to allow the jurors to communicate among themselves, and they had been specially instructed not to communicate with the jury themselves, nor to allow anyone else to do so. . . . True, no specific oath was administered to the sheriff or his deputy on the particular occasion of- sending the jury to make a view, but the record shows that the sheriff had the jury in charge the night before ‘under proper oath and instructions as to the guarding of the jury,’ and that the court ‘instructed the officers that they were under the same oath and instructions about guarding the jury as they were the night before, and not to permit any discussion of the case while they were viewing the scene of the killing, or while they were absent from the court room.’ ”
But, in the case at bar, the defendant’s motion that the jury be kept together in charge of an officer was denied. Hence, the jury had been permitted to separate and were not under the charge of an officer. The record does not show what officers were assigned the duty of conducting the jury to the scene of the alleged crime, nor does the record show that any kind of oath was administered to the officers at any time. And there is no showing that the very things that the oath is calculated to guard against did not occur.
In Atterberry v. State, 56 Ark. 515, 20 S. W. 411, the defendant was convicted of grand larceny, and it was held that by his failure to call the court’s attention to the necessity of administering the oath to the officers in charge of the jury during its deliberation, the defendant had waived the oath required by statute. But, in Johnson v. State, 68 Ark. 401, 59 S. W. 34, on the question of admonishing the jury when they were allowed to separate as provided by Ark. Stats., § 43-2122, it was held a reversible error to fail to comply with the statute.
In the Johnson case, the court emphasized the fact that the statute, now Ark. Stats., § 43-2122, provides that the jury must be admonished on being allowed to separate. Likewise, in the case at bar, § 43-2120 provides that the officers conducting the jury to the scene of the alleged crime must be sworn to suffer no person to speak or communicate with the jury. Also in the Johnson case, the defendant did not request the judge to admonish the jury. We think that the statement of the court in Stroope v. State, 72 Ark. 379, 80 S. W. 749, is especially applicable here:
“It is not for the court to say that no harm was done in this way. No one can foresee or foretell whether there be harm in such case, or what the harm may be, if any. We are of opinion that this was error, for which the judgment following thereon should be reversed. This may seem to be overstrictness in the application of the rule governing such matters, but it is best to avoid the very approach of an evil. To permit a breaking over .of the rule in one instance is likely to set a precedent fraught with the greatest embarrassment in future cases. ’ ’
The legislature has deemed it proper to adopt as the law of this State Ark. Stats., § 43-2120, which makes it mandatory that officers conducting a jury to the scene of an alleged crime be required to take an oath in accordance with the statute. This statute is calculated to have a salutary effect and should not be nullified by this court.
There are other assignments of error, but they are not such as are likely to occur at another trial.
Reversed.
Justices Millwee and George Rose Smith dissent. | [
32,
-22,
-111,
62,
59,
96,
58,
-70,
82,
-47,
-30,
122,
-19,
-117,
69,
41,
50,
61,
85,
105,
-31,
-73,
35,
-30,
114,
115,
25,
-59,
54,
107,
-84,
-107,
9,
112,
-54,
81,
-90,
98,
-27,
88,
-124,
-126,
-117,
113,
-62,
82,
48,
119,
116,
14,
-15,
-98,
-77,
43,
23,
-57,
73,
60,
91,
-66,
-16,
49,
90,
13,
-39,
22,
-77,
-89,
-101,
-95,
80,
52,
-40,
49,
0,
-8,
115,
-124,
-126,
84,
99,
24,
-84,
98,
66,
35,
25,
-55,
-88,
9,
14,
46,
45,
-89,
-103,
81,
65,
13,
-105,
-35,
107,
112,
14,
-28,
117,
-50,
73,
116,
4,
-34,
-76,
-111,
-83,
124,
-112,
-38,
-21,
-123,
52,
117,
-51,
-30,
93,
68,
85,
-101,
-113,
-108
] |
J. Seaborn Holt, J.
This is another case involving usury pleaded under a conditional sales contract.
March 27, 1952, prior to June 30, 1952, the date on which our decision in Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973, became final, appellee Hall, purchased a Dodge pickup truck from the Green-Mouton Motor Company in El Dorado, Arkansas. The invoice to appellee recited:
“The selling price of 1948 Dodge pickup ....................................$695.00
‘ ‘ Less: Trade-in allowance of 1941 Chevrolet ........................ 245.00
“Balance ............................................................ 450.00
“18 Months Insurance......................... 112.48
“Service Charge ....................................... 56.87
“Total Contract..........................................$619.35”
A conditional sales contract was executed by appellee on the above date (March 27, 1952) in favor of Green-Mouton which recited a “Time Balance” of $619.35, and provided for fifteen monthly pajunents of $41.27 each. This contract was duly assigned by Green-Mouton to appellant, Universal C. I. T. Corporation.
Appellee, after having made the payments for April, May and June of 1952 defaulted and brought the present' suit in which he sought to cancel the contract for usury, and to recover the three monthly payments which he made on the contract. Appellant’s answer was a denial of every material allegation in the complaint not specifically admitted. The trial court found the contract usurious and ordered its cancellation but refused appellee’s claim for a refund of the three payments on the ground that they were voluntarily made. From the decree is this appeal.
It is undisputed that the sales contract recited the price of the truck to be $695.00 and, after deducting $245.00 allowed on a trade-in, left a balance of $450.00. To-this balance was added $169.35 (making a total of $619.35) to cover interest, insurance purchased by appellee, and certain service charges under a finance plan including bail bond and credit identification. This $619.85 was described in the contract as the ‘ ‘ Time Balance ’ ’ and in the invoice above as ‘ ‘ Total Contract. ’ ’
'While some of the items charged against appellee Hall might have been considered usurious under our holding in the Hare case above, however, such items were permitted under many of our cases governing transactions made before the opinion in the Hare case became final. The present case is controlled by our holding in the recent case of Crisco v. Murdock Acceptance Corporation, 222 Ark. 127, 258 S. W. 2d 551, which case we reaffirmed in Universal C. I. T. Credit Corporation v. Crossley, 222 Ark. 200, 258 S. W. 2d 562.
Accordingly the decree is reversed, and the cause remanded with directions to enter a decree consistent with this opinion. | [
82,
123,
16,
-97,
26,
96,
106,
26,
-47,
-56,
39,
-45,
-19,
-30,
20,
97,
-25,
61,
-11,
106,
-73,
-93,
7,
34,
-45,
-109,
-53,
-35,
48,
-55,
-84,
-44,
68,
40,
-62,
21,
-94,
-62,
-63,
30,
94,
-128,
-69,
97,
-7,
80,
48,
-39,
68,
1,
97,
-52,
-21,
44,
59,
75,
105,
42,
-5,
56,
-48,
-96,
-101,
-123,
127,
70,
-112,
68,
-104,
21,
-54,
14,
-112,
60,
24,
-24,
120,
-74,
-58,
124,
37,
-103,
8,
102,
102,
-94,
36,
-81,
-36,
28,
46,
-37,
13,
-89,
-94,
88,
34,
73,
-97,
28,
-38,
22,
39,
-10,
44,
93,
27,
105,
2,
-118,
-110,
-79,
-113,
-13,
12,
27,
-17,
38,
50,
112,
-49,
-16,
92,
87,
122,
-109,
-114,
-72
] |
Minor W. Millwee, Associate Justice.
Appellants, James Bullock and Shirley Jean Hall, are minors who, by their parents, brought separate actions against appellee, Joe Miner, to recover damages for personal injuries which they allegedly sustained on August 25,1954, when a school bus in which they were riding was struck by appellee’s truck on U. S. Highway 71 between Abbott and Mansfield, Arkansas. Each complaint alleged that, at the time of the collision, appellee’s truck was being-operated by Franklin Richey as the agent, servant and employee of appellee and while acting within the scope of his agency or employment, all of which appellee denied.
The cases were consolidated for trial to a jury. After appellants presented their testimony bearing on the issue of Richey’s agency for or employment by appellee at the time of the collision, but before they had introduced all their proof, the trial court denied appellants’ motion for a non-suit and granted appellee’s motion for a directed verdict in his favor.
In directing a verdict for appellee, the circuit judge found, as a matter of law, that Richey was not acting as the agent or servant of appellee at the time of the col lision and was not, therefore, liable for his negligent acts. Thus it is agreed that the primary issue here is whether there is any substantial evidence to warrant a jury finding that the driver, Franklin Richey, Avas acting as the agent or servant of appellee and within the scope of his agency or employment at the time of the collision. In testing the correctness of the court’s action in peremptorily instructing the jury on this issue, the evidence adduced must be given its strongest probative force in favor of the appellants. As this court stated in Barrentine v. Henry Wrape Co., 120 Ark. 206, 170 S. W. 328: “In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and Avhere there is any evidence tending to establish an issue in favor of the party against whom the Amrdict is directed, it is error to take the case from the jury.” See also, Pugh v. Camp, 213 Ark. 282, 210 S. W. 2d 120.
At a pretrial conference it was admitted that appellee was engaged ill the junk business at Boles, Arkansas, and owned the truck involved in the accident; that said truck was being driven by Richey and Avas partly loaded with scrap iron; and that Richey, at times previous to the accident, had been employed by appellee. At the trial Richey and appellee were called as witnesses by appellants. Richey testified that, on the morning of the accident, he drove his own car to the home of appellee at Boles to see if he could catch a ride with appellee to Ft. Smith where Richey desired to make some inquiry about his prospective employment at O’Roark’s Body & Paint Shop. Appellee told Richey that he and his wife were going to Ft. Smith later in the day, but that Richey could drive appellee’s truck, Avhich was partly loaded with junk, to O’Roark’s shop where appellee would pick it up and deliver the junk to Yaffee Iron & Metal Co. in Ft. Smith where appellee always sold his junk. Richey attempted to fix the brakes on the 1948 model truck, which were knoAvn by appellee to be defective, and appellee gave him $1.00 Avith A\diich to pur chase brake fluid. In making the repairs, Richey “plugged up” one of the brakes and so advised appellee. Richey proceeded in the truck toward Ft. Smith over Highway 71 until he came up behind the school bus which was slowing down for a stop. A car was approaching from the opposite direction and the truck struck the rear of the school bus when the brakes proved to be wholly defective and would not hold.
When Richey was questioned by appellee’s counsel as to the nature of the agreement under which the truck was turned over to him, he answered: “Well, it wasn’t exactly a loan. He (appellee) told me I could drive the truck up there. He told me I could drive the truck up there if I’d drive the load of iron up there.” He also stated that he was to drive the truck to Ft. Smith for the ride up there as well as for the convenience of appellee, and that he might have driven it back to Boles if he had not secured the job at 0’Roark’s shop. While appellee denied that Richey was in his employ at the time of the collision, he stated that he had made similar trips for appellee prior to and since the collision; that Richey’s working hours were usually irregular and he was paid by the hour; and that he frequently did things for appellee without charging for his services. He had intended to pick up an old car body at 0’Roark’s shop and bring it back to Boles to be dismantled for junk. According to the driver of the school bus, appellee came upon the scene shortly after the wreck and stated that “his brakes were supposed to have been fixed at Waldron,” and that Richey was hauling a load of junk to Ft. Smith in his truck.
When the foregoing admissions and testimony are considered in the light most favorable to the appellants, we conclude that a jury question was made as to whether Richey was acting within the scope of his agency or employment and as the agent or servant of appellee at the time of the collision. 0 It is true that an owner is not liable for negligence in the operation of his vehicle by an employee to whom he has rented or lent it and who is using it on a mission of his own or solely for his own purposes. White v. Sims, 211 Ark. 499, 201 S. W. 2d 21. But it is also well settled that if a vehicle causing an accident belongs to the defendant, and is being operated at the time of the accident by a regular employee of the defendant, there is a reasonable but rebuttable inference that at such time he was acting within the scope of his employment and in the furtherance of his master’s business. Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S. W. 2d 1010.
In cases involving facts quite similar to those adduced by the appellants here, we have held that the issues, as to whether the driver of the vehicle was acting as the agent or servant of the owner and within the scope of his agency or employment at the time of the accident, are for the jury and not the court. Casteel v. Yantis-Harper Tire Co., 183 Ark. 475, 36 S. W. 2d 406; Ball v. Hail, 196 Ark. 491, 118 S. W. 2d 668; Lion Oil Refining Company v. Smith, 199 Ark. 397, 133 S. W. 2d 895. To the same effect are the cases of Volentine v. Wyatt, 164 Ark. 172, 261 S. W. 308, and Richards v. McCall, 187 Ark. 61, 58 S. W. 2d 432. In West v. Wall, 191 Ark. 856, 88 S. W. 2d 63, relied on by appellee, the driver was using the truck on an independent business trip for a partnership of which he was a member at the time of the accident which did not involve a defective condition of the vehicle.
Our conclusion that the evidence adduced by appellants is legally sufficient to warrant a jury finding for appellants on the issues presented is in harmony with the following rule approved by this court in Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243, and numerous subsequent cases: “It may be said to be the general rule that where an unimpeached witness testifies distinctly and positively to a fact and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established, and a verdict directed based as on such evidence. But this rule is subject to many exceptions, and where the witness is interested in the result of the suit, or facts are shown that might bias his testimony or from which an inference may he drawn unfavorable to his testimony or against the fact testified to by him, then the case should go to the jury.”
While Eichey is not made a party defendant, he could hardly be classed as a disinterested witness and his testimony on some points is contradicted by other evidence. For instance, his statement that he made repairs to the truck at appellee’s home is contradicted by the bus driver’s testimony that appellee said the brakes were to have been repaired at Waldron. And, even if the fact finders found Eichey’s testimony true in toto, it is certain that he was acting for the mutual benefit of himself and appellee and not solely for his own purposes in driving appellee’s truck. On the whole case, we cannot say that a fair and reasonable inference might not have been deduced by the jury that Eichey acted as the agent or servant of appellee and within the scope of his employment in the operation of the truck at the time of the collision.
While the issue probably will not arise again, the trial court also erred in overruling appellants’ motion for a non-suit. See Hall, Adm., v. Chess & Wymond Co., 131 Ark. 36, 198 S. W. 523. For the error in instructing a verdict for appellee, the judgment is reversed and the cause remanded for trial. | [
80,
-24,
-27,
-100,
8,
98,
58,
10,
103,
-29,
36,
-45,
-81,
-58,
28,
121,
-9,
109,
-48,
107,
-11,
-77,
21,
-78,
-46,
-77,
-5,
71,
-78,
-55,
36,
-42,
77,
112,
-54,
-111,
102,
74,
-59,
24,
-50,
-120,
-87,
110,
89,
-54,
48,
126,
16,
15,
117,
-98,
-61,
42,
59,
-58,
109,
46,
107,
-75,
-39,
49,
78,
5,
15,
2,
-79,
36,
-70,
1,
-8,
26,
-36,
48,
0,
-8,
50,
-90,
-128,
-44,
105,
-103,
8,
-90,
114,
33,
20,
-63,
-84,
-104,
38,
126,
31,
-89,
-78,
88,
9,
41,
-73,
-99,
121,
80,
8,
-2,
-17,
69,
28,
108,
11,
-49,
118,
-79,
5,
49,
-98,
9,
-21,
-115,
48,
117,
-50,
-14,
93,
69,
82,
-33,
70,
-126
] |
Frauenthal,- J.
This is an action instituted on a note which was executed by the defendant, R. L. Coffelt, on March 8, 1908, for $225, payable to the order of A. S. Phelps, Jr., 18 months after its date, with interest. The note is a negotiable instrument, and the plaintiff alleged that he was a bona fide purchaser thereof before maturity and for a valuable consideration. The defendant admitted the execution of the note, but resisted its enforcement on various grounds, amongst which are the following: (1) he denied that the plaintiff was an innocent purchaser of the note, and alleged that he was induced to execute it upon representations made by the payee which were false, whereby the consideration therefor had failed; and (2) that the note was executed in consideration of a patented machine or article, and that it was not executed on a printed form, ás provided by section 513 of Kirby’s Digest; and also that the payee therein was not a merchant or dealer selling patented things in the usual course of business. A demurrer was interposed to these various defenses except that which denied that the plaintiff was an innocent purchaser of the note, and the demurrer was overruled. Upon the trial of the case, a verdict was returned in favor of the defendant, and from the judgment rendered thereon the plaintiff has appealed to this court.
It appears from the uncontroverted testimony, we think, that the plaintiff purchased the note sued on before its maturity for a valuable consideration and without any notice of any imperfection in or defense to it. This is virtually conceded by counsel for the defendant, and the sole defense now urged by him against a recovery on the note is that the consideration therefor was a patented thing, and that it was not executed in compliance with the provisions of the above statute.
It appears from the testimony that the payee of the note, A. S. Phelps, Jr., was, at the time of its execution, engaged in the business of manufacturing, selling and installing acetyline' gas lighting systems or plants. His manufactory was located at that time at Elkhart, Indiana, and later moved to Geneva, Illinois. He had warehouses or distributing places located at different towns and cities, one of which was at Bentonville, Arkansas. At that city he had rented a warehouse, and kept on hand a number of lots or jobs covering several gas lighting systems, complete, and he employed laborers or gas fitters at such place for the purpose of installing the systems. He also had employed one E. P. Roberts as an agent, who went from place to place in the county in which Bentonville is situated, and there sold these gas lighting systems to individuals. This agent, in making such sales, would take with him a sample of the gas generator or the system. The lighting system consisted of a gas generator and some fixtures. On February 15, 1908, the defendant entered into a written contract with said Phelps through the agency of said Roberts for the purchase and installation of the gas lighting system in his residence. By the terms of this contract, he ordered a “50-light Phelps carbide feed gas generator,” at the price of $150, and directed the piping of his residence and the furnishing of fixtures, for which he agreed to pay the additional sum of $75, and also to board the men doing the work of installing the plant. Later the system ■ was installed, and the defendant executed said note for the said sums aggregating $225. The defendant introduced in evidence a certified copy of letters patent issued by the United States Goverment on February 28,1905, granting to said A. S. Phelps, Jr., the right to make, use and vend an improvement upon acetyline gas generators. This copy of said letters patent was certified to by the commissioner of patents. The testimony adduced on behalf of the defendant tended to prove that the generator sold to him was the identical machine covered by these letters patent, and that the said Roberts, who was the agent of the said Phelps in selling same, had stated that the generator was covered by letters patent issued to said Phelps. From these letters patent and the facts and circumstances adduced in evidence, we are of the opinion that there was sufficient testimony adduced on the trial to warrant the jury in finding that the generator sold to defendant was a patented article. In his testimony, the vendor, Phelps, stated that these letters patent had expired, but admitted that there was a patent held on a part of the system known as the feed and cut-out portion of the gas bell; but the letters patent on the generator continued for seventeen years from February 28, 1905, and the evidence therefore tended to prove that the letters patent covered this, generator and had not expired. It is urged by counsel for plaintiff that the court erred in admitting the certified copy of said letters patent. We are, however, of the opinion that this action of the court was right. The letters patent issued by the United States Government are proved by the production of the original itself or by copies of the record thereof under the seal of the patent office and certified to by the commissioner of patents or his chief assistant. 2 Greenleaf on Ev., § 488; 9 Enc. of Ev. 655; U. S. Comp. Stat. 1901, p. 673.
It is provided by section 513 of Kirby’s Digest that “any vendor of any patented machine, implement, substance or instrument of any kind or character whatsoever, when the said vendor of the same effects the sale of the same to any citizen of this State on a credit, and takes any character of negotiable instrument in payment of the same, the said negotiable instrument shall be executed on a printed form and show upon its face that it was executed in consideration of a patented machine, implement, substance or instrument, as. the case may be, and no person shall be considered an innocent holder of the same, though he may have given value for the same before maturity, and the maker thereof may make defense to the collection of the same in the hands of any holder of said negotiable instrument, and all such notes not showing on their face for what they were given shall be absolutely void.” It is further provided by. section 516 of Kirby’s Digest that “this act shall not apply to merchants and dealers who sell patented things in the usual course of business.”
It is urged by counsel for plaintiff that the consideration of the note was not only said gas generator but álso the fixtures and the installation of the plant; that, even if said generator was patented, the other part of the consideration therefor was not patented; he contends that the plaintiff is entitled to recover unless the note was executed solely for the purchase price of a patented machine or article, and asked an instruction to that effect. The court, however, refused to give that instruction, but instructed the jury that it devolved upon the defendant to prove that the note sued on was executed for the purchase price of a patented machine or article. It is well settled, we think, that, if a contract is based upon several considerations, some of which are merely insufficient and not illegal, it is not void but may be upheld by the consideration which is sufficient; but if one of several considerations of an entire contract, as a note, is illegal, the whole contract is void. In other words, where the contract is entire, and a part of the consideration thereof is illegal, and the illegal portion is not separable from the whole consideration, then the whole contract is unenforceable. 1 Parsons on Contracts, § 455; 1 Daniel on Negotiable Instruments, § 204; Edwards v. Randall, 63 Ark. 318; Hanauer v. Gray, 25 Ark. 350; Tucker v. West, 29 Ark. 386; Kizer v. Texarkana & F. S. Ry. Co., 66 Ark. 348.
By the above statute the note is declared void where it is given in payment of a patented article, and is not executed on a printed form and in the manner therein prescribed. In other words, it makes illegal such note in the sense that it is given in contravention of a statutory requirement, and for that reason its character as a negotiable instrument is destroyed, and it can not be used as the evidence of the indebtedness. If part of the consideration of the note is illegal in this sense, then the note itself is tainted with illegality, and is void. The contract of sale itself of a patented article or of any other article in connection therewith is not void, no matter what may be the form of the note given for the articles, because the statute does not declare the contract void. But the note given in pursuance of such sale is void if a material part of the consideration thereof is a patented article, and it is not executed in form and manner required by said statute. The consideration of the note sued on was the gas generator and certain fixtures and the installation thereof. The chief portion of the consideration was the gas generator. Under the testimony, the character of this plant or gas lighting system was identified and fixed by this gas generator, which was patented. It may be that in cases where there is some small patented attachment to the machine or article sold which is not the inducing cause of the sale but only an incident thereto, then the machine or article so sold would not fall within the purview of the above statute. But where the machine or thing sold is patented, and is the principal or material part of the consideration inducing the sale thereof, then the note falls within the provisions of the above statute, although there may be some portion of the consideration thereof which is not covered by patent. The above statute avoiding negotiable instruments executed for patent rights or patented things when such notes are not on printed forms as prescribed by said statute has been uniformly upheld by this court and the Supreme Court of the United States. Wyatt v. Wallace, 67 Ark. 575; Woods v. Carl, 75 Ark. 328; Columbia County Bank v. Emerson, 86 Ark. 155; Mullins v. Columbia County Bank, 87 Ark. 554; Woods v. Carl, 203 U. S. 358; Ozan Lumber Co. v. Union County National Bank, 207 U. S. 251. We are of the opinion, therefore, that there was sufficient evidence to' sustain the verdict of the jury finding that the note sued on was executed for a patented machine. It is conceded that the note was not executed in the manner prescribed by the above statute. It follows, therefore, that the note was unenforceable, even in the hands of an innocent purchaser.
It is urged that the payee of said note was a merchant or dealer and sold said machine in the usual course of business, and for this reason, under the provisions of section 516 of Kirby’s Digest, was exempted from said statute. The court instructed the jury that it devolved upon the defendant to prove by a preponderance of the evidence that said A. L. Phelps, Jr., the payee of the note, was not a merchant and dealer in the articles for which the note sued on was given, and was not selling same in the usual course of business. It appears that said Phelps was a manufacturer of the gas generator sold, and that he made sales thereof by agents who went throughout the counties and from place to place soliciting from individuals purchases of the lighting plant or system by sample. It is true that he had a warehouse in which a number of the systems were stored, but we think that these were only placed at such warehouse for convenience, instead of shipping same direct from his factory after the orders had been taken. These gas systems were not kept in a store for sale in the ordinary course of business, nor were they sold in the ordinary course of business. They were sold through agents soliciting orders therefor by said Phelps, who was the manufacturer thereof. According to the common understanding, the words 'merchant’ and 'dealer' are employed to designate persons who are engaged in the business of buying and selling merchandise or other personal property in the usual course of trade. They are usually understood as being something different from a manufacturer. While it is true that a manufacturer may have a store or business house in which he may buy and sell and deal in the very articles which he manufactures and thus become a merchant or dealer therein, yet if he manufactures the articles sold upon orders and only sells same on such orders, then he is not a merchant or dealer within the purview of the exemption from this statute. Union County National Bank v. Ozan Lumber Co., 179 Fed. 710. We think that there was sufficient evidence adduced upon the trial of this case to warrant the jury in finding that said Phelps was not a merchant or dealer selling said patented generator or the gas lighting system in the usual course of business.
The court gave a number of instructions, and refused several which were asked by'the plaintiff; but we are of the opinion that in its various rulings on these instructions it conformed to the principles which we have herein announced. By the instructions which were given, we think that the law applicable to the facts of this case was fully and fairly presented to the jury, and the court committed no error in any of its rulings upon any of the instructions. We are also of the opinion that there was sufficient .evidence to warrant the verdict which the jury returned.
The judgment is accordingly affirmed. | [
-76,
121,
-8,
-35,
10,
112,
42,
-110,
82,
-128,
-73,
114,
-23,
-45,
0,
53,
-9,
107,
113,
107,
87,
-77,
35,
75,
-14,
-77,
-39,
81,
-79,
-51,
-12,
86,
76,
32,
-62,
93,
-29,
-32,
-123,
90,
6,
-128,
41,
-32,
-45,
102,
48,
59,
85,
79,
97,
-58,
-95,
47,
22,
75,
107,
46,
-23,
9,
-56,
-7,
-103,
-43,
45,
22,
-96,
-61,
-112,
69,
-38,
14,
-102,
57,
3,
-24,
50,
-90,
-122,
-12,
75,
41,
12,
98,
35,
19,
85,
-21,
-8,
-120,
39,
-29,
-115,
-89,
-111,
72,
3,
45,
-68,
-99,
60,
22,
-89,
118,
-2,
-99,
21,
-19,
3,
-113,
-58,
-125,
47,
106,
-114,
-121,
-21,
-125,
49,
65,
-57,
-124,
84,
93,
-5,
-101,
-50,
-103
] |
Minor W. Millwee, Associate Justice.
This suit involves the constitutionality of Act 145 of 1955.
Appellant is engaged in the cattle business in Union County, Arkansas, where he originally brought suit in chancery court to restrain the sheriff and treasurer of Union County from enforcing Act 145 of 1955. The Union Chancery Court found that the State Police were necessary parties to the suit which was refiled in Pulaski Chancery Court and Herman E. Lindsey, State Police Director, was made a party defendant.
The complaint asserted unconstitutionality of Act 145 on two grounds, the first being that it is an amendment of Initiated Act No. 1 of 1950 and did not receive a two-thirds vote of all members elected to each house of the General Assembly as required by Amendment No. 7 of the Arkansas Constitution, and the second that it compels citizens to incriminate themselves in violation of Art. 2, § 8 of the Constitution. Appellees demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This appeal is from a decree sustaining the demurrer and dismissing the complaint when appellant refused to plead further.
The primary question is whether Act 145 of 1955 amended Initiated Act No. 1 of 1950 within the meaning of Amendment No. 7 of the Constitution (Ark. Stats., Yol. 1, p. 206) which provides that no measure approved by a vote of the people shall be “amended or repealed” by the General Assembly except by vote of two-thirds of all members elected to each house. Initiated Act No. 1 of 1950 (Ark. Stats., § 41-430, et seq.) made it a misdemeanor for the owners of cattle, horses, mules, hogs, sheep or goats to allow them to run at large on any public highway in the state, and provides that any qualified officer shall have authority to make arrests for violations of the act.
Act 145 was passed by the Legislature in 1955 by less than a two-thirds majority vote of both houses. The act makes it the duty of the sheriffs and members of the State Police to restrain and impound any animals found running at large on any public highway in the state. It also makes it the duty of county courts to provide enclosures for impounding said animals, which may be sold by the sheriff at public sale with the right of the owner to reclaim within 30 days of the first publication of notice of sale upon payment of the costs of taking up, feeding and care of such animals. Any net sale proceeds remaining at the end of each year in the fund to be kept by the sheriff in connection with the impounding and sale of animals must be deposited with the County Treasurer for the benefit of the County Road Fund.
In view of § 1 of Act 145 which states that the purpose of the act is to provide for more effective enforcement of the prohibition against animals being allowed to run at large in violation of Initiated Act No. 1 of 1950, appellant insists that Act 145 amends Initiated Act No. 1 by providing for the taking up and impounding of animals found running at large on the highways in addition to the criminal penalty imposed upon violators by the initiated act. We do not agree that Act 145 “amended” Initiated Act No. 1 within the meaning of Amendment No. 7 of the Constitution.
As applied to statutes, an amendment has generally been defined by the courts as a legislative act designed to change some prior and existing law by adding to, or taking from it some particular provision. State ex rel. Nagle v. Leader Co., 97 Mont. 586, 37 P. 2d 561; Assets Reconst. Corp. v. Munson, 81 Cal. App. 2d 363, 184 P. 2d 11; 50 Am. Jur., Statutes, § 3; 82 C. J. S., Statutes, § 243. In Gregory v. Cockrell, 179 Ark. 719, 18 S. W. 2d 362, this court held that an amendment of a statute involves some change or alteration in an existing statute which is direct and not consequential. In that case we also joined many other courts in approving the following definition of “Amendment in legislation” found in Bouvier’s Law Dictionary, 3rd ed., p. 187: “An alteration or change of something proposed in a bill or established as law.” Some courts have distinguished an “amendment” from a “supplemental act” by defining the latter as that which supplies a deficiency, adds to, extends or completes that which is already in existence without changing or modifying the original. Lost Creek School Township, Vigo County v. York, 215 Ind. 636, 21 N. E. 2d 58, 127 A. L. R. 1287.
Act 145 of 1955 does not in any manner “alter or change” Initiated Act No. 1 of 1950. There is nothing-in Amendment No. 7 which prohibits legislation upon the same subject matter by a majority vote of less than two-thirds of the General Assembly so long as it does not amend or repeal the act or law approved by the electors. The Legislature has the power to provide for the impounding and sale of livestock found running at large in violation of law independently of Initiated Act No. 1 of 1950. Howell v. Daughet, 148 Ark. 450, 230 S. W. 559, 18 A. L. R. 63. The fact that Act 145 had for its purpose the more effective enforcement of the initiated act is immaterial unless it changed or altered it in some way. A comparison of the two acts shows that each is complete within itself, and that Initiated Act No. 1 still stands intact without alteration or change by Act 145. While the latter act may be supplemental to the former, it is not amendatory within the meaning of the Constitution.
Nor do we agree with appellant’s contention that Act 145 compels the owner to be a witness against himself in violation of Art. 2, § 8 of the Constitution. While the act permits an owner to reclaim his impounded stock, it does not compel him to do so, nor does it necessarily follow that he thereby admits that he has violated Initiated Act No. 1 of 1950. One is not guilty of allowing his stock to run at large unless he knowingly permits them to do so. De Queen v. Fenton, 100 Ark. 504, 140 S. W. 716. Even though an owner reclaims his stock, he is still free to make any defense or contention he may have, or desire, with regard to whether he allowed the stock to run at large.
The able trial judge correctly held Act 145 valid and constitutional, and the decree is affirmed. | [
52,
-18,
56,
109,
10,
96,
50,
-102,
83,
-71,
101,
83,
-81,
-64,
5,
113,
-21,
61,
85,
105,
-58,
-73,
83,
96,
34,
-45,
-103,
-57,
50,
75,
-20,
119,
75,
48,
-62,
21,
-60,
106,
-59,
-36,
-86,
35,
11,
-35,
104,
-48,
56,
105,
22,
75,
49,
-113,
-30,
46,
54,
67,
105,
44,
89,
46,
73,
123,
59,
-113,
127,
6,
35,
84,
-118,
7,
122,
110,
-112,
49,
17,
-40,
114,
-94,
-118,
-12,
105,
-103,
8,
38,
99,
-125,
-87,
-49,
-120,
-118,
6,
127,
-115,
-122,
-112,
73,
106,
36,
-106,
-99,
122,
-108,
14,
-6,
-31,
-59,
87,
110,
-122,
-50,
-108,
-73,
11,
-84,
22,
19,
-21,
101,
16,
113,
-51,
-14,
93,
71,
16,
-97,
-122,
-48
] |
Minor W. Millwee, Associate Justice.
This appeal is from a decree denying the petition of appellant, Joe Nelms, for a permanent injunction to restrain appellees from interfering with appellant’s use of a certain road which he claimed had become a public highway by prescription.
Appellees, James E. Grant and wife, purchased 400 acres ..in Stone County in December, 1949, which included lands joining appellant’s 40-acre tract on the north ai/d east as shown by the following sketch introduced by appellees :
Appellant and his witnesses testified that the roadway shown on the sketch had been used by two or three local landowners and the public generally over a period of 35 to 50 years as an outlet to the village of Rushing and other points on State Highway No. 9. When the Grants purchased their lands in 1949, appellant was living near Gate 4 in a house that was torn down shortly thereafter when he moved to the residence which he built near Gate 1. At one time he had lived in his father’s home, which was also located near Gate 1, but this house was torn down 8 or 10 years prior to the trial. Appellant also lived in Indiana for 1% years, beginning in 1948. He admitted that the road in question had been moved from time to time and that there were three different roads over the lands. He assisted appellees in building a fence on the north line of his property in 1950 when Gate 1 was put in, but he could not remember the location or date of installation of the other gates.
A good portion of the lands in question had been open and unenclosed for long periods prior to 1949. However, small portions of the land had been cultivated at different times. John Moore, appellees’ predecessor in title, was cultivating a small acreage and maintaining Gates 2 and 3 in 1950. A witness for appellees testified that these were old gates when he first noticed them about 7 years prior to the trial and there was other evidence that the gates had been in existence and use for 8 or 10 years in 1950 when appellees completely fenced their lands as a stock farm and installed Gates 1 and 4. Gates 1, 3 and 4 were necessary to keep livestock off the outside range and Gate 2 was used to protect a cultivated field which was separated from the pasture lands.
In 1952, Mrs. Grant closed Gate 1 because the gates were continually being left open and torn down. A suit then filed by appellant was dismissed under an arrangement whereby appellees installed cattle guards at Gates 2 and 3, which proved inadequate or unsatisfactory, and the gates were restored. When someone, identified by Mrs. Grant as the appellant, persisted in leaving open and tearing down the gates, Mrs. Grant again closed Gate 1 by locking it and the instant suit was filed.
Evidence introduced by both sides tended to show that the portion of the road from Gate 1 to Gate 2 had not been used for a period estimated at 8 to 12 years prior to 1949. Mrs. Grant was positive that there was no road there in 1949 nor any visible evidence that a road had ever been there. Much of the road traversed lands which were unenclosed and unoccupied for a considerable portion of the time in which adverse use was claimed. The land in the vicinity of Gates 1 and 4 was first fenced in 1950 and the land between Gates 2 and 3 was allowed to “lay out” much of the time. Different ways were used over the lands at different times. Evidence offered by appellant in an effort to show that the road extending west from his house near Gate 1 was inadequate for vehicular travel was first admitted, but appellees’ offer to show that said road furnished an adequate outlet to the highway without crossing their property was rejected on the ground that it was immaterial to the issue involved.
The rule applicable to the establishment of a public highway by prescription over private lands was announced in Howard v. State, 47 Ark. 431, 2 S. W. 331, where this court held: “A road becomes established as a public highway by prescription, where the public, with the knowledge of the owner of the soil, has claimed and continuously exercised the right of using it for a public highway for the period of seven years, unless it was so used by leave, favor or mistake; and this though the public travel may have somewhere slightly deviated from the original track by reason of any obstacle that may have been placed in it.” Another well-settled rule is that where a road is used by the public across unoccupied and unenclosed lands, such use is presumed to be permissive. Brumley v. State, 83 Ark. 236, 103 S. W. 615. We have also held that if the public acquiesces for more than seven years in the existence of a gate across a road established by prescription, its conduct amounts to an abandonment of the prescriptive right, entitling the owner to close the gate permanently. Porter v. Huff, 162 Ark. 52, 257 S. W. 393; Kennedy v. Crouse, 214 Ark. 830, 218 S. W. 2d 375.
In denying the prayer for a permanent injunction, the chancellor pointed out the changing routes of the road over the years and the fact that much of the land was open and unenclosed while part of it was fenced with gates across the road. There was. a finding that the evidence was insufficient to establish a public way by prescription because the use of the road over the years was permissive and not adverse. We cannot say this finding is against the preponderance of the evidence. Even if it he held that a public highway was at one time established by prescription, the evidence also tends to show that appellant, and the public generally, acquiesced in the use of Gates 2 and 3 for a period of 8 to 10 years prior to 1950, thereby losing any prescriptive right previously acquired. The facts here are similar to those in Porter v. Huff, supra, where the court said: “"When appellee enclosed his land and placed gates across the road, it was notice to the public that thereafter they were passing through the land by permission, and not by right. ’ ’
Affirmed. | [
-11,
-56,
-4,
-36,
74,
-96,
26,
-101,
66,
-65,
117,
87,
-81,
82,
5,
53,
-17,
61,
80,
123,
85,
-78,
119,
-96,
82,
-13,
-5,
-35,
-96,
76,
-68,
83,
76,
48,
-118,
21,
-26,
-62,
13,
90,
-116,
-113,
27,
-18,
-39,
80,
62,
47,
80,
15,
49,
-113,
-13,
46,
53,
-29,
-87,
44,
-53,
-83,
-103,
-8,
-65,
-59,
126,
60,
-128,
87,
-72,
-127,
-56,
43,
-104,
53,
-128,
-8,
123,
-90,
-110,
-11,
67,
-101,
8,
36,
98,
1,
101,
-17,
-32,
-40,
12,
90,
-83,
-90,
-14,
16,
67,
-96,
-98,
-99,
112,
16,
71,
126,
-20,
5,
93,
104,
-123,
-82,
-80,
-77,
-113,
-72,
-124,
-63,
-29,
15,
50,
115,
-61,
-2,
79,
71,
113,
27,
-126,
-127
] |
Paul Ward, Associate Justice.
This appeal challenges a decree of the chancery court granting a divorce to Melvyn J. Gardner. Appellant, Bernice A. Gardner, urges two grounds for a reversal: (a) Appellee had no bona fide residence in Arkansas, and (b) The evidence does not show three years separation as required by statute.
Factual Background. The parties were married in Boston in 1943. Sometime later they moved to Miami Beach, Florida where they and their four children established their residences and where Dr. Gardner engaged in the private practice of psychiatry. During the latter part of 1951, as a result of estranged marital relations, Dr. Gardner moved from their home to a hotel, and Mrs. Gardner secured a decree providing support for herself and the children. In June, 1953, Dr. Gardner gave up his private practice at Miami Beach and accepted employment with the Veterans Administration at Jefferson Barracks, Missouri. He remained there until about the first of November 1953 when he asked for and was given an assignment as psychiatrist at Fort Boots Veterans Hospital in North Little Bock, Arkansas. He arrived in North Little Bock on the 7th or 8th of November and began service at the hospital on the 9th. He began this action for divorce November 9, 1954.
(a) It is appellant’s contention that the chancellor erred in holding''appellee was a bona fide resident of this state. It is specifically urged, first, that appellee did not himself say he intended to make Arkansas his permanent home and, second, that there is no corroborating evidence or circumstance to show animus manendi.
While the evidence supporting the chancellor’s finding on the question of residence could be more satisfactory yet we are unwilling to say such finding is against the weight of the testimony. We think appellee did, in effect, say he intended to make Arkansas his permanent residence.
“Q. Do you have any present intention of changing your residence, Dr. Gardner?
A. I do not.
Q. Have you made any plans that are calculated to keep you here in this state for an extended period of time? ■ ■ ' •
A. Yes, we have started the plan for a new group of research in projects which I estimate will take several years to complete.
Q. Do you intend to take an active part in those projects?
A. I do.”
We recognize that mere declarations of intent by Dr. Gardner coupled with the fact that he had lived in this state one year when his complaint was filed do not meet the test of tona fide residence announced in Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585 and subsequent decisions of this court. There is however present in this case an independent and extrinsic circumstance which, we think, is sufficient to show Dr. Gardner’s intention to make this state his domicile. Dr. Henry M. Hawkins, who is Chief of Continued Treatment Service at Fort Roots Veterans Hospital, testified regarding appellee:
“Q. How long have you known him?
A. Since November 9, 1953.
Q. Where was he living when you met him?
A. He was living on the grounds and still does.
Q. Did he move to the North Little Rock Veterans Hospital on or about November 9, 1953?
A. November 9, to the best of my knowledge.
Q. Has he lived there continuously since that time f
A. Continuously.
Q. Do you know whether he has made any plans to continue to live in North Little Rock?
A. We have worked out projects that will take us several years to complete.
Q. Has he indicated his desire to participate in those projects?
A. Most certainly; he and I are doing them together.
Q. Did you say they will require an extended period of time to complete?
A. Yes, sir.”
Dr. Hawkins who has been at his present location several years, admits that both he and appellee can be transferred by the government any time, yet, as stated by him, this is often the case where one is employed in private business. Every one is entitled to maintain a domicile somewhere regardless of the nature of his employment, and it is significant here, we think, that Dr. Gardner has abandoned his residence in Florida and has acquired one at no other place if not in Arkansas.
(b) We also think the evidence supports the cham cellor’s finding that appellant and appellee had lived apart without cohabitation for a period of three years. It was admitted by appellant and found by the Florida Court that they did not cohabit from August 28, 1951 to January 5, 1953, and appellant makes no contention that they cohabited thereafter. Appellee’s father who lives in Philadelphia stated he saw his son in February 1952 and December 1953 and had talked with him over the phone at other times, and that he was sure the parties had lived separate and apart since the latter part of 1951. He also stated that he was in Miami Beach, Florida in January and February of 1952, 1953, and 1954, and had seen appellant on each occasion except the last one. Of course there is no positive corroboration which precludes the possibility that appellant and appellee may have cohabited on some one specific occasion during the three year period, but such corroboration is not required. See Wicker v. Wicker, 223 Ark. 879, 269 S. W. 2d 311. In affirming the chancellor we recognize, and do not intend to violate, the rules against hearsay evidence, or the rule against collusive testimony in divorce cases. We do point out, in respect to testimony corroborating three years separation, that, under the circumstances disclosed here, the corroboration may be slight. There is no suggestion in this case that there exists any collusion between the parties. In dealing with a similar situation in Kirk v. Kirk, 218 Ark. 880, 239 S. W. 2d 6, we stated: “It has been said that since the object of the requirement as to corroboration is to prevent collusion, where the whole case precludes any possibility of collusion, the corroboration only needs to be very slight.”
We have decided that appellant’s request for an attorney fee covering this appeal should be allowed in the amount of $150.00 and it is so ordered.
Affirmed.
Justice McFaddin dissents.
Justice Millwee not participating. | [
49,
-18,
117,
126,
26,
-128,
-70,
-83,
114,
-83,
33,
83,
-81,
75,
80,
105,
2,
47,
64,
121,
-37,
-73,
71,
72,
114,
-77,
122,
-35,
-68,
-33,
-28,
-41,
76,
105,
-54,
-47,
70,
74,
-49,
28,
-58,
5,
-85,
-59,
88,
-58,
48,
109,
88,
15,
21,
-33,
-13,
40,
19,
-57,
104,
40,
91,
48,
-48,
-80,
-118,
12,
111,
36,
-79,
37,
-102,
-121,
112,
47,
-112,
48,
0,
-23,
115,
-74,
-106,
112,
71,
-67,
16,
96,
99,
1,
33,
-25,
-32,
-120,
14,
56,
45,
-90,
-110,
24,
64,
68,
-68,
-99,
125,
20,
8,
126,
103,
-115,
30,
100,
46,
-113,
-44,
-79,
-127,
-7,
-108,
17,
-21,
-29,
16,
113,
-53,
-30,
93,
67,
59,
-101,
-116,
-14
] |
George Rose Smith, J.
The appellee recovered judgment for $1,205 as the value of nine head of cattle killed by the appellant’s trains. The case involves eight distinct incidents, two cows having been killed upon one occasion by the same train, and resulted in nine separate verdicts for the plaintiff. The appellant admits that its trains killed eight of the nine animals but contends that it was entitled to an instructed verdict upon each count of the complaint. For convenience of discussion the eight counts may be divided into three subdivisions.
I. Upon five of the occasions — those of April 20, May 14, August 4, August 29, and September 25, 1954— the railway engineer made no effort either to stop the train or to slacken its speed after discovering cattle on or near the railroad track. Although there is evidence that a cow may be seen for as much as half a mile away, the jury were justified in believing that no attempt is made to reduce the train’s speed when an animal is sighted at a distance. The engineers and firemen explain that ’ the sounding of the whistle may startle a grazing beast and cause it to run across the track in fright. Hence the trainmen think it best to try to slip past the animal without disturbing it unnecessarily. If, however, the cow shows any indication of getting upon the tracks the whistle is blown in repeated short blasts in an effort to scare the animal back. There is much testimony from which the jury might have concluded that even when a beast is seen to be approaching the track no attempt is made to slacken speed unless the distance is so great that the train can actually be brought to a standstill in time to avoid a collision.
This practice of continuing at full speed unless a complete stop can be made does not as a matter of law absolve the railroad company from the presumption of negligence that arises from the statute, Ark. Stats. 1947, § 73-1001. In several cases the failure to moderate the train’s speed has been a basis for, or a factor supporting, the view that the statutory presumption has not been indisputably overcome. St. Louis, I. M. & S. R. R. Co. v. Hagan, 42 Ark. 122; St. Louis & S. F. R. Co. v. Carlisle, 75 Ark. 560, 88 S. W. 584; Chicago, R. I. & P. R. Co. v. Williams, 221 Ark. 404, 253 S. W. 2d 349.
Varied situations are presented by the case at bar. The cow killed on August 29 was sighted half a mile away. When the train was “a thousand feet or less” from the animal the engineer first observed an indication that the cow would come upon the track. He blew the whistle — -“that’s all I could do” — but the cow “made a sudden dash on the railroad track to get across and almost made it.” From other testimony it is reasonable to believe that by a routine application of the service brakes the train’s speed could have been materially reduced over a distance of 1,000 feet, and still more so at half a mile. It cannot be said as a matter of law that the jury were wrong in thinking the animal would have escaped had any effort at all been made to slow the train.
The other four incidents in this first group all involve the railway’s practice of making no attempt to slacken speed when an animal is first observed. In the instance that is perhaps most favorable to the appellant, that of August 4, the engineer testified that the cow was 200 feet away when he discovered her on the tracks. This testimony is to some extent contradicted by the fireman, who said that the animal was grazing on the .side of the track when he first saw her at a distance of only seventy-five feet. In passing it may be remarked that such inconsistencies in the testimony have been held to justify the jury’s conclusion that the witnesses are discredited. Little Rock & F. S. Ry. Co.v. Jones, 41 Ark. 157; St. Louis S. W. Ry. Co. v. Hutchison, 79 Ark. 247, 96 S. W. 374; Missouri Pac. R. Co. v. Bain, 170 Ark. 594, 280 S. W. 625. But, apart from these discrepancies in the proof, the jury had all along the problem of deciding whether a slackening of the train’s speed would have avoided the accident. To what extent a moving train may be slowed over a given distance is not a matter which the jury may be taken to know from everyday knowledge; proof is needed. Since the appellant offered no evidence on this point, taking the position that no reduction in speed is called for unless a full stop is possible, it cannot be said that the presumption of negli gence was incontrovertibly overcome in any of these instances.
II. On two occasions — those of April 26 and May 4 — the engineer did apply the brakes in an attempt to stop his train. In the latter instance the testimony is so contradictory that the jury, under the cases last cited, was-not required to believe either eyewitness. The engineer says that the accident occurred at 9:50 a.m.; that he sighted a herd of cattle crossing the tracks; and that he applied first the service brakes and then the emergency brakes in his attempt to stop. The fireman, in testimony that we cannot bring into harmony even by a careful study of the record, stated on direct examination that he observed fifteen or twenty cattle crossing the tracks, but he says the incident happened at night — ■ "I distinctly remember because it was dark.” He could not then be sure that one cow had been fatally injured, but on the return trip the next morning he saw the animal’s dead body. Yet on cross-examination this witness stated, ivithout explanation, that the occurrence was in the daytime. If the testimony cannot be reconciled by a study of the record it could hardly be harmonized by the jury upon a single hearing.
In the other instance, that of April 26, the statutory presumption was clearly overcome by the defendant. The engineer testified that he saw from 50 to 100 cattle on the track at night, that he began sounding the whistle, and that he immediately applied the emergency brakes but was unable to stop in time. Many cases hold that such uncontradicted proof rebuts the presumption of negligence. Kansas City, F. S. & M. Ry. Co. v. King, 66 Ark. 439, 51 S. W. 319; St. Louis, I. M. & S. R. Co. v. Landers, 67 Ark. 514, 55 S. W. 940; Chicago, R. I. & P. Ry. Co. v. Fowler, 186 Ark. 682, 55 S. W. 2d 75. Indeed, the appellee’s only argument on this count is that the headlight might have been defective. This contention is based solely on the engineer’s statement that all headlights are not of exactly the same brilliance, Avhieh obviously falls short of proof that the light in question ay as inferior.
III. The appellant denies that a train struck the appellee’s ball on September 19 and contends that the evidence is insufficient to show that the animal was killed by a train. We think the evidence supports the verdict. The bull was found, seriously injured, about 200 yards from the track. A witness, searching for the animal, was able to find it by starting at the track and following the trail left by the beast as it dragged itself to a mudhole. A section foreman told the plaintiff’s son that the bull had been killed by a train and might be destroyed. It is argued principally that no witness described any marks on the bull that might have resulted from the impact with the train. The quick answer to this contention is that, with the exception of the section foreman, no witness was asked about such wounds, although there was every opportunity for the question to be put. When the section foreman saw the animal it was mired down with only its back showing; so his failure to see any marks falls short of proof that there were none.
The judgment is affirmed except as it relates to the cow killed on April 26; that part of the judgment, in the sum of $120, is set aside and the cause dismissed. | [
-16,
86,
-116,
-49,
43,
96,
42,
-102,
97,
-31,
-9,
-45,
-115,
-61,
21,
55,
-25,
61,
85,
43,
-42,
-109,
87,
98,
-101,
-45,
51,
-51,
-67,
75,
44,
-42,
13,
48,
74,
21,
103,
-54,
77,
-40,
-114,
52,
-23,
-31,
57,
16,
-72,
123,
22,
71,
49,
-97,
-17,
-82,
24,
-63,
41,
62,
59,
-83,
-64,
121,
-78,
71,
118,
4,
49,
100,
62,
7,
72,
62,
-103,
53,
0,
-40,
114,
-96,
-125,
84,
109,
-39,
12,
-30,
98,
41,
13,
-49,
40,
-120,
47,
94,
-115,
-90,
-110,
0,
99,
39,
-98,
-99,
56,
86,
-122,
122,
-26,
5,
89,
40,
-127,
-49,
-76,
-121,
-113,
-92,
-106,
23,
-21,
-73,
34,
113,
-103,
-86,
94,
69,
124,
-97,
-114,
-91
] |
Ward, J.
Appellant instituted this action in chancery court asking to be adjudged the owner of an undi vided one-third interest in certain oil and gas holdings which were claimed and held by Charles F. Steele and Amos T. Hutchinson, and asking the trial court to declare that Steele and Hutchinson in fact held one-third of said oil and gas holdings in trust for him. Appellant based his action on an alleged oral agreement between him and Steele whereby appellant was to secure certain correction deeds and certain mineral leases and Steele was to give him the said one-third interest. Steele, emphatically denying any such oral agreement, admits that appellant did considerable work of the nature above stated for him and Hutchinson but contends that he and Hutchinson have fully paid appellant for all such work.
The trial court held that the testimony was inadequate to support appellant’s claim, and the essential question presented to this court concerns the weight and sufficiency of the evidence.
Preliminary statement. Since the testimony is voluminous and the varied activities of the parties were somewhat complicated, yet have a potential significance to the stated issue, it will be helpful to give a general background picture.
The oil and gas holdings of which appellant seeks an undivided one-third interest pertain to only 22 acres of land, but the bulk of the work which he did in securing leases and correction deeds affected the entire 116% acres.
In Section 8, Township 15 South, Range 22 West, there is a tract of land consisting of 116% acres known as the “Milwee Estate.” For convenient reference this tract of land is divided in this manner: 1. 70 acres consist of the East Half of the SE% of the SW% less 10 acres squarely off of the north side thereof; 2. 5 acres consist of the East Half of the 10 acres excepted above; 3. 5 acres consist of the West Half of the 10 acres excepted above; 4. 17 acres join the two 5 acre tracts on the north and is in the shape of a parallelogram. This tract may also be described as all of the South Half of the SE% of the NW[4 except 3 acres squarely off the north side thereof; 5. 19% acres lie west of the 70 acre tract and the West 5 acre tract.
It appears that Charles F. Steele and Amos T. Hutchinson are associated in the oil and gas business and have been for about 10 years prior to this litigation. For the purpose of this opinion it is not necessary to refer to appellee, Minnette Hutchinson, hereafter. She is the wife of Amos T. Hutchinson and was made a party because she had some interest in the leases, nor is it necessary to refer to Berry Asphalt Company which was made a party, because its interest will not be affected by the outcome of this litigation. Mr. Hutchinson is a non-resident and apparently is counted on to furnish the money for drilling and leasing operations. Appellee Steele apparently is a man of small financial means who has vast knowledge and experience in the oil and gas business. He is advanced in years and was in very poor health during the whole period with which we are concerned here. Apparently it was his job to do the ground work for Hutchinson. He stated on one occasion that he wrote two letters a week to Hutchinson over a period of 5 years. Appellant Silvey is a resident of Arkansas, of good reputation and apparently has had experience in dealing with other people in securing oil and gas leases. The land covered by the oil and gas leases involved in this litigation consists of the 17 acre tract and the West 5 acre tract.
On January 1, 1952, appellees Steele and Hutchinson owned, or thought they owned, all of the oil and gas leases on the disputed lands except a 1/45 interest which was later secured by Silvey. They also had oil and gas leases amounting to a considerable interest in all of the 116% acres. It developed that it was necessary to obtain certain correction deeds and to obtain certain oil and gas interests before it would be practical to drill on any of the land. Since Steele was physically unable to do this work he enlisted the help of Silvey. Silvey says he and Steele had two separate and distinct agreements, and, for the purpose of this opinion, we will treat them as such.
First agreement. There is not much if any dispute concerning the first agreement. On or about January 1, 1952, it appeared to Steele that a reasonable amount of work would clear up the lease situation and he had an agreement with Silvey to do this work for him. After some disagreement it was finally decided that Silvey should receive for his work a 1/96 (of %) interest covering the entire 116% acres. Silvey completed this work within 3 or 4 months and he was given an assignment of a 1/96 interest covering all lands. Silvey has this interest and is now drawing remuneration as a result of wells having since been drilled.
Second agreement. Apparently during the time that Silvey was working under his so-called first agreement the abstract of title to the “Milwee Estate” was being examined by Mr. Steele’s attorney, Charles H. Tompkins. As a result of this title examination Mr. Tompkins discovered that certain correction deeds would have to be obtained to perfect the title to the lands, and that there was a large amount of so-called splinter leases or interests outstanding on the lands. It was recognized that the work required by the attorney must be done before it would be practical to start drilling operations, and it was also apparent that it would necessitate considerable work on the part of someone to meet the attorney’s requirements. This information was made known to Steele about the time that Silvey had completed his work under the first agreement. It is not disputed that Steele [and Hutchinson] desired and expected Silvey to do this work. The terms of the agreement under which Silvey undertook and did the required work are in dispute and form the basis of this lawsuit. Silvey has one version of the understanding or agreement and Steele has an entirely different version.
Silvey’s understanding of the agreement. Generally speaking Silvey contends that he had a definite oral agreement with Steele to do the work required by Mr. Tompkins whereby he, Steele, and Hutchinson would all be equal partners in all of the leases covering the entire 116% acres of land, or, in other words, that he, Silvey, would receive for his work one-third of the oil and gas leases on all of the “Milwee Estate.” It is not disputed that Silvey worked many months in accomplishing the work he did or that he did a good job. The record shows that Steele and Hutchinson have assigned to Silvey a one-third interest in the 70 acre tract and the 19% acre tract. This suit is an effort by Silvey to obtain a one-third interest in the 22 acre tract. It should be stated here that the East 5 acre tract is not involved in this suit. Silvey admits that Steele had begun drilling a well on the East 5 acre tract before he performed his first agreement and that he at no time claimed any interest in that tract. Actually then, Silvey only claimed as to 111% acres.
Appellees’ understanding of the agreement. Again generally speaking, Steele denies emphatically that he made the agreement alleged by Silvey, and states that the understanding which he had with Silvey was substantially as follows: At no time did he agree to give Silvey a one-third interest in the 22 acre tract because, as he says, he already had that land under lease and did not contemplate much difficulty in clearing the title and lease situation as to that land. He admits that Silvey wanted an additional interest to compensate him for the extra work required by Tompkins and that consequently he (Steele) promised and did give him a one-third interest in the 70 acre tract and also the 19% acre tract.
There are certain facts and circumstances disclosed by the record which each side points to as indicating substantiation for each respective contention.
Appellant points out. (a) Since work under the first agreement had been completed and he had been paid therefor by the assignment of a 1/96 interest in all of the “Milwee Estate” lands, appellant says that it is unreasonable to suppose that he would undertake and perform the enormous amount of work required by Tompkins without requiring a one-third interest in the leases covered on all of the lands, and that it is significant that much of the work performed by him related to the 22 acres in question. Many of the leases which he obtained from the Milwee heirs included the said 22 acres as well as the 89% acres.
(b) On January 19, 1953, Tompkins wrote a letter to Steele, enclosing a certain assignment covering the 19% acre tract, in which he indicated it was his understanding that Silvey owned an undivided one-third of the leasehold interest in the “Milwee-Estate” lands. It is significant, appellant says, that appellees, having thus been put on notice of Silvey’s claim, made no protest at the time or at any time thereafter, and that it is also significant that Steele did not remember receiving this letter.
(c) Appellant says that Steele claims that he did not agree to give appellant a one-third interest in any of the lands until July, 1953. Therefore, says appellant, Steele’s testimony cannot be reconciled because the letter just referred to above indicates that Steele must have known about appellant’s claim of a one-third interest as early as January 19, 1953.
(d) A large number of the leases secured by Silvey were taken in his name — later assigned to appellees.
Appellees point out. (a) Appellees acquired the original leases on the “Milwee Estate” and had to a large degree secured all leases on the 22 acres before Silvey entered the picture. Appellee Hutchinson was looked to as the man to furnish the money to pay for leases, attorney fees and operational expenses, and Steele states that he paid $1,700.00 to keep liens from running against the leases so that Hollyfield-Warren could drill a well on the 70 acres.
(b) All parties including Silvey knew that the 22 acre tract was the most valuable and Silvey admits that on one occasion appellees refused to give him any interest in the 17 acre tract.
(c)While it is true that Silvey took leases in his name Steele gave him instructions not to do so and in any event the leases were assigned by Silvey to appellees.
(d) Silvey admits he knew that appellees assigned certain leases for the drilling of a well on the 17 acre tract and that he did not make any claim for his one-third interest at the time.
(e) Mr. Tompkins stated that he did not know what the trade was between Silvey and appellees and that it was none of his business, although he knew they had some kind of an agreement.
(f) Several letters written by Steele to Hutchinson were introduced in evidence which, appellant agrees, are competent. These letters indicate Steele was unwilling to let Silvey have any interest in the disputed lands on January 10, 1952; January 20, 1952, Silvey was not satisfied, and Steele said “to stop where he was if he was not satisfied,” but Silvey said he would go on through with it; January 31, 1952, Steele said that he was sorry that he hired Silvey to get leases on the 70 acre tract and the 19% acre tract and that Silvey wanted to buy an interest in the 22 acres because he realized “this is the high point,” but Steele refused; on March 10, 1952, Steele wrote that Silvey “is never satisfied with what he is getting — I pay no attention to him any more.”
(g) On one occasion after appellant claims the second agreement was made Steele and Silvey were present when Hollyfield-Warren were attempting to locate a well just south of the East 5 acres and Fred Forest, a witness for appellees, was asked, “Q. Did you hear any discussion between Mr. Silvey and Mr. Steele as to ownership of two tracts, North tract and South tract?” He answered, “I heard Mr. Silvey say it did not make any difference and Mr. Steele said ‘Yes it does, I am not going to have that that close.’ This is mine and that is yours and we are not going to drain my oil with that.”
(h) Raney Ellis, age 82, a witness for appellees, stated that he was at Mr. Steele’s home in July of 1953 when Silvey was there, and he heard Steele promise Silvey one-third interest in the 70 acres and one-third interest in the 19% acres. "Witness stated that Silvey was well pleased.
(i) Billy D. Stroups, a witness for appellees, stated that he lived with Mr. Steele during the first two or three months of 1953 and during July and August of 1953; he was in Mr. Steele’s house on the occasion mentioned by Raney Ellis and he heard Silvey and Steele talking; that Silvey indicated he didn’t think he was getting enough for his work; that Steele gave him a 1/96 of the “Milwee Estate” land; but that he didn’t hear Steele say anything to Silvey about a one-third interest.
. It can be readily seen from the above that much of the testimony is in hopeless conflict and much of it lacks clarity. One difficulty in trying to determine exactly which view the record substantiates is that most of the facts and circumstances relative to the dealings between Silvey and Steele are consistent with Silvey’s understanding of the agreement and also consistent with Steele’s understanding. On the one hand it seems probable that since Steele and Hutchinson had been working together for so many years, they would not readily take a third party into full partnership. It is equally understandable, and the record shows, that Silvey desired to have a one-third interest in all of the lands, and it is not denied that he did a difficult job well. On the other hand the record shows that Silvey is now receiving, as a result of his work, something like $500.00 a month and it appears likely he may receive more in the future. It is recognized, of course, as stated, by the chancellor, that we are not here concerned with the amount of work done by Silvey except in so far as it may shed light on the agreement. Perhaps one of the most significant circumstances tending to corroborate Silvey and to discredit appellees’ testimony generally, is the letter written by Tompkins on January 19, 1953, in which he, to some extent, put Steele on notice that Silvey ivas claiming a one-third interest in all of the land, and which suggests the one-third interest had been discussed at that time. On the other hand it must be recognized that this does not constitute substantive testimony that Steele consented to such an arrangement. Tompkins admits that he didn’t know what the agreement was between Silvey and Steele and it will be presumed that he got his information regarding the matter from Silvey, which of c.ourse could not bind Steele. 'It is possible also that Steele, having read the letter, concluded that it did not necessitate a positive denial on his part. Moreover we are’not sure that Steele fixes July 1953 as the first time a one-third interest for Silvey was mentioned. One time Steele did fix this date, but at another time he said it was July 1952 — it’s possible the first statement was inadvertently made. It is noted also that appellant says the date cannot be determined, and the fact that one witness heard the conversation [about the agreement in 1953] does not necessarily preclude previous conversations of a «similar nature.
We are impressed with the exhaustive and apparently conscientious effort put forth, by the chancellor, reflected in a-lengthy and comprehensive written statement, to arrive at a just determination. It was his opinion that the testimony failed to meet the burden imposed by law upon.Silvey to prove he had an agreement with Steele to receive a one-third interest in the leases covering all the lands.
After a careful consideration of all of the testimony we cannot say that the conclusion reached by the chancellor is against the weight of the testimony, and therefore the decree of the trial court is sustained.
Seamster, C. J., not participating. | [
112,
-20,
-8,
-100,
-118,
96,
58,
-101,
73,
-85,
117,
119,
-81,
-49,
4,
49,
98,
61,
69,
107,
103,
-77,
7,
97,
-112,
-13,
-39,
-51,
-79,
79,
-12,
-41,
76,
32,
-54,
-107,
-62,
12,
-61,
-36,
-114,
-124,
-86,
-20,
-39,
16,
60,
123,
16,
75,
49,
54,
-13,
40,
53,
107,
40,
44,
-17,
61,
17,
-48,
-85,
-123,
29,
67,
-112,
70,
-100,
13,
-54,
14,
-112,
-80,
-120,
-24,
123,
-90,
4,
100,
15,
-85,
-84,
54,
99,
41,
-32,
-17,
58,
56,
15,
-34,
-115,
-89,
-14,
104,
97,
104,
-97,
-99,
124,
16,
7,
-10,
-28,
5,
26,
108,
3,
-113,
-44,
-95,
11,
-16,
-97,
17,
-21,
-123,
16,
113,
-55,
-30,
124,
103,
58,
-105,
-114,
-80
] |
George Rose Smith, J.
These two cases, consolidated on appeal, are actions for the wrongful deaths of Paul Heitman and Ronny Hardwick, who were killed in the same railroad crossing accident, and for the destruction of the car involved in the collision. The verdicts were in the amount of $10,160 for the Heitman estate, $10,000 for the Hardwick estate, and $1,000 for the car, which was owned by Hardwick’s father. The only contention on appeal is that the railroad company and its trustee were entitled to a directed verdict in each case.
Although the cases were separately tried, the material evidence in the two’suits is to the same effect. The collision occurred at the Main Street crossing in the city of Malvern, a few minutes after midnight on the morning of February 7, 1954. Four of the occupants of the automobile were killed; the only survivor is a seventeen-year-old boy who was asleep at the time. The proof shows clearly enough that the appellants’ train was traveling at about seventy-five miles an hour and that the view of all concerned was obstructed by a number of freight ears that were standing on a nearby track. The railroad engineer did not see the automobile at all before the collision, and the fireman did not see it until both train and car were some six or eight feet from the point of impact. Since the’ crossing was in effect a blind intersection the railroad’s conduct in the giving of signals is of primary importance, it being the appellants’ contention that the sole canse of the collision was the automobile driver’s failure to heed signals that were plainly visible and audible.
This urban crossing is protected by red electric lights that are supposed to begin flashing automatically whenever an oncoming train reaches a point about 3,500 feet from the crossing. There is, however, substantial evidence to show that the warning system was not operating properly on the night in question. The witness Helms testified that earlier in the evening his truck had been obstructed by a line of vehicles and that he had gone to the center of the highway to look ahead for the cause of the delay. He says that he was in a position to see the red signals, had they been working, but he looked for them and did not see them. After reentering his truck he observed the end of a train going by and could then see the lights of Main Street on the other side of the tracks. A State policeman who investigated the accident testified that he stayed particularly to see if the lights were operating and that when a train arrived about thirty minutes later the signals did not begin blinking until the train reached the edge of the highway. This belated operation of the signals was also observed by the witness G-erety, and there is other testimony of a corroborative effect.
We need not detail the conflicting testimony as to whether the operators of the train sounded its air horn and bell, for a jury question was presented by the proof that the automatic warning system was defective. In Chicago, R. I. & P. Ry. Co. v. Hamilton, 92 Ark. 400, 123 S. W. 379, there was proof that the railroad company had failed to close a gate that was intended to keep travelers from attempting to cross when trains were passing. It was there said: “This was an invitation to a traveler, or an assurance to him that the way was clear and that he might proceed in safety. Whether or not it constituted negligence for him to cross without taking the further precaution of looking or listening was a question for the jury to determine under all the circumstances of the case. For, when the plaintiff attempted to cross, upon the invitation of the company’s agent and under the implied assurance that it was, safe for him to do so, it cannot be said as a matter of law that he was guilty of negligence in failing to look or listen for danger.” To the same effect are Bush v. Brewer, 136 Ark. 246, 206 S. W. 322, and Mo. Pac. R. Co. v. Brown, 186 Ark. 339, 53 S. W. 2d 587. In view of these decisions the defendants were not entitled to directed verdicts in the cases at bar.
Affirmed.
Seamster, C. J., not participating. | [
-16,
120,
-60,
-82,
26,
96,
58,
-70,
-28,
-22,
-25,
-45,
-115,
-61,
81,
63,
-17,
55,
-15,
43,
-10,
-101,
23,
42,
-45,
-109,
-93,
-17,
-98,
-56,
124,
-46,
76,
48,
75,
5,
102,
-120,
-60,
90,
-52,
-108,
-21,
113,
-103,
16,
-80,
122,
-108,
31,
53,
-114,
-33,
-90,
24,
-29,
73,
42,
123,
-83,
-47,
-15,
-125,
71,
-9,
20,
-93,
52,
-102,
-93,
120,
26,
-40,
-75,
8,
56,
114,
-90,
-41,
-12,
97,
-103,
12,
-94,
103,
0,
21,
-105,
-20,
-104,
46,
118,
-113,
-91,
-106,
16,
3,
37,
-97,
55,
122,
80,
6,
104,
-2,
68,
73,
104,
-127,
-113,
-74,
-128,
-1,
-76,
-98,
19,
-21,
45,
50,
112,
-53,
-118,
95,
7,
123,
31,
79,
-74
] |
Sam RobiNsoN, J.
This case concerns the title to minerals and royalty on a small acreage. Appellants, Addison L. Tyler, and his wife, Annie Tyler, purchased as an estate by the entirety 20 acres of land. The grantor reserved three-fourths of the minerals. In language of the oil business, the Tylers acquired “5 acres of minerals.” Later, they sold 2% acres of minerals. This case involves the remaining 2% acres. Tyler conveyed to appellee, Melvin Boucher, this remaining 2y2 acres. Mrs. Tyler did not join in the deed but steadfastly refused to do so, and, at the time Boucher received the deed from Tyler, he was aware of the fact that Mrs. Tyler had refused to sign it. However, he thought she owned only a dower interest and paid Tyler $1,875.00, the full purchase price agreed upon. When it was understood that Mrs. Tyler was part owner, Tyler refunded to Boucher $937.50, one-half the purchase price. Boucher then proceeded in an effort to prevail upon Mrs. Tyler to sell her interest in the minerals or royalty. Finally, she conveyed to Boucher certain royalty for which she was paid $50.00 in addition to the amount theretofore refunded to Boucher by Tyler, making a total of $987.50. The Tylers claim that, as part of the consideration for the royalty deed, Boucher was to destroy the mineral deed he had theretofore obtained and which Tyler alone had signed. The Chancellor held that Boucher had acquired in fee 1% acres in minerals by the mineral deed from Tyler and 1% acres of royalty by the deed executed by both Mr. and Mrs. Tyler.
There are two questions: First, is the evidence sufficient to set aside the mineral deed from Tyler to Boucher? "We do not think so, although both the Tylers testified that the setting aside of the mineral deed was part of the consideration for the royalty deed. The royalty deed on its face recognizes the validity of the mineral deed. The royalty deed provides: ‘ ‘ This conveyance considered with mineral deed Addison Lee Tyler to Melvin Boucher dated Oct. 18, 1952 conveys 144 acres Minerals and 144 acres royalty.”
Next, just what interest did Boucher acquire by both deeds? The mineral deed was signed by Tyler alone. By this deed, Boucher acquired all of Tyler’s interest in the minerals. But the mineral deed signed by Tyler alone would not affect Mrs. Tyler’s right of survivorship or her rights to one-half of the rents and profits. Roulston v. Hall, 66 Ark. 305, 50 S. W. 690; Pope v. McBride, 207 Ark. 940, 184 S. W. 2d 259. Hence, after Tyler gave the mineral deed and before Mrs. Tyler executed the royalty deed, she and Boucher were each entitled to one-half of the royalty income from the minerals. Two and one-half acres of minerals were owned. Mrs. Tyler would be entitled to all of the income from 1% acres of minerals and this royalty is exactly what she conveyed to Boucher by her deed. Although there is some ambiguity in the deed, it is clearly a deed to royalty. The deed provides “AN UNDIVIDED one/one hundred twenty eighth (l/128th) interest in and to all of the oil, gas and other minerals.” Actually, as one of the owners by the entirety of 2% acres of minerals out of 20 acres, Mrs. Tyler was entitled to a l/128th royalty in the 20 acres. The deed further provides: “This conveyance is of 144 oil, gas and other minerals royalty acres over the entire spread of the hereinabove described lands.” The land described is the 20 acres. The royalty from 144 acres is all Mrs. Tyler was entitled to as a tenant by the entirety.
Further, the deed provides: “It is the intention of the parties hereto that the grantee herein, his heirs or assigns, shall be entitled to receive hereunder one six teenth (1/16) of all oil and/or gas run to the credit of the royalty interest reserved under and by virtue of any oil and gas mining lease” and again: “In any event the grantee herein, his heirs or assigns, shall be deemed the owner of and shall be entitled to receive one one twenty eighth (1/128) part of all oil and gas produced and saved from said land, or any part thereof. ’ ’
It is our conclusion that, by the mineral deed from Tyler, Boucher acquired 2% mineral acres subject to Mrs. Tyler’s right of survivorship; that before Mrs. Tyler executed the royalty deed she was entitled to one-half the royalty income from the 2y2 acres, but by her deed she transferred her rights in 1% acres of royalty to Boucher. But she still has the right of survivorship in the 2% acres of minerals and in the event she survives her husband she would be entitled to the royalty on 1)4 acres of minerals, as she only sold the royalty on 1XA acres.
Reversed, with directions to enter a decree not inconsistent herewith. | [
-16,
111,
-100,
61,
24,
96,
-86,
-94,
105,
43,
-27,
83,
-17,
-62,
24,
33,
-73,
45,
69,
106,
-74,
-93,
3,
-110,
82,
-109,
89,
-35,
-76,
88,
-28,
87,
76,
36,
-54,
85,
66,
75,
109,
88,
-98,
37,
-87,
81,
-39,
-112,
60,
47,
80,
75,
81,
-122,
115,
44,
25,
70,
73,
46,
127,
61,
89,
-24,
-81,
20,
63,
18,
-78,
37,
-112,
-91,
-40,
74,
-112,
48,
-128,
-24,
59,
-74,
70,
84,
11,
25,
-120,
-90,
119,
50,
-115,
127,
-8,
-104,
46,
-14,
13,
-90,
-45,
88,
2,
104,
-99,
-100,
125,
80,
39,
-10,
-22,
5,
92,
108,
63,
-5,
-42,
-128,
13,
-8,
-99,
19,
-5,
-97,
52,
112,
-51,
-94,
92,
103,
120,
-109,
15,
-15
] |
Ed. F. McFaddin, Associate Justice.
The appellant claims that someone forged her name to a warranty deed which has been of record since 1937. The Chancery Court held that the signature was that of the appellant; and this appeal has ensued.
In 1954 appellees (J. A. Hancock and wife) filed this suit to have their title quieted against the appellant (Mrs. Annie Mae Simmons). The complaint alleged that the appellant executed a warranty deed to Mrs. Hancock in 3937, but was now claiming that the deed was a forgery. Appellant, by answer and cross-complaint, alleged that the 1937 deed was a forgery, and that the Hancocks had all the time been the tenants of appellant.
Only a factual question- is presented; and the evidence is in sharp dispute. Mrs. Simmons testified that in -1937 the property was worth in excess of $3,000.00; that she rented it to Mr. Hancock for $15.00 a month; that he executed to her four rental notes totalling $360.00 as evidence of rents to mature; that from 1937 to 1950 Mrs. Simmons was a nurse in New York and other places outside Arkansas; that the Hancocks paid the monthly rental to Mrs. Simmons ’ mother until her death in 1948; and that in 1950 Mrs. Simmons learned that no rents were then being paid. Other witnesses testified as to payments by Mr. Hancock to appellant’s mother. The original deed in question was dated and acknowledged on November 26, 1937. Mrs. Simmons testified — and she was corroborated by a number of witnesses- — that she was not in Arkansas on that date. She also testified that she did not know the man who, as Notary Public, claimed to have taken her acknowledgment.
On behalf of the appellees, the Notary Public who took Mrs. Simmons’ acknowledgment to the deed on November 26, 1937, testified that his certificate of acknowledgment was true and correct. J. A. Hancock testified that he and his wife purchased the property from Mrs. Simmons just as recited in the deed — i.e., the assumption of an outstanding mortgage and the execution of the four vendor’s lien notes totalling $360.00. The four notes —marked paid — were introduced in evidence; and on the back of one of the notes was the admittedly genuine and contemporaneous signature of Mrs. Simmons. This signature was compared with the questioned signature of Mrs. Simmons on the deed. An employee of an El Dorado Bank — whose duties for almost fifteen years had been to pass on the genuineness of signatures — testified that, in his opinion, the admitted and the questioned signatures were both made by the same person.
We mention also one other significant matter. Each of the four notes had typewritten in it the description of the property here involved. Mrs. Simmons testified that none of this typewritten matter was in any of the notes when she received them or endorsed the one note as aforesaid. But even so the printed portion of each note said: “This note is given as part of the purchase price on the following described lands in Union County, Arkansas, to-wit: (lines for description). A lien is reserved on said property as security for the payment of this note, . . .” Thus Mrs. Simmons admittedly endorsed her name on the back of a note which said it was for the purchase price of property and that a lien was retained for the purchase price.
From the evidence herein recited, and other in the record, the Chancery Court found that the questioned deed was genuine. We have examined the original instruments and we cannot say that the Chancellor was in error.
Affirmed.
The deed was to the former wife of J. A. Hancock. After her death her heir conveyed the property to J. A. Hancock, who is the appellee. He has since remarried.
Mrs. Simmons explained this by statin# that she endorsed the note to hypothecate it for a loan, which she later repaid, and thereupon the note was redelivered to her. | [
-78,
108,
-55,
46,
-120,
-32,
-88,
-118,
99,
-95,
49,
83,
-3,
66,
84,
111,
-31,
45,
-11,
121,
102,
51,
23,
65,
-14,
-77,
99,
85,
-71,
93,
-12,
86,
76,
36,
-62,
85,
-30,
-126,
-51,
18,
-50,
-126,
11,
-27,
-39,
80,
52,
-69,
16,
15,
85,
-105,
-13,
45,
53,
79,
40,
46,
-21,
40,
-40,
-32,
-97,
-115,
121,
7,
-111,
119,
-108,
9,
-24,
-116,
-104,
49,
1,
-24,
51,
-90,
-122,
116,
74,
-103,
8,
38,
98,
50,
-51,
-1,
-84,
-120,
35,
126,
-115,
-89,
50,
104,
-53,
44,
-66,
-99,
121,
-128,
7,
118,
116,
-123,
28,
104,
43,
-85,
-42,
-95,
25,
58,
-100,
-125,
-17,
-109,
48,
113,
-51,
-32,
93,
66,
51,
-101,
-114,
-14
] |
ELANA CUNNINGHAM WILLS, Justice.
I, This is the second appeal taken to this court by appellant Brenda Downing. In the first case, Downing v. Lawrence Hall Nursing Center, 368 Ark. 51, 243 S.W.3d 263 (2006), this court dismissed Downing’s appeal for lack of a final order because the circuit court had not entered an order dismissing the “John Doe” defendants Downing named in her original complaint. In the present appeal, Downing challenges the circuit court’s orders granting the motion to dismiss filed by appellees Lawrence Hall Nursing Center (“Lawrence Hall”) and Lawrence Memorial Hospital (“Lawrence Memorial”) and the motion for summary judgment filed by appellee St. Paul Fire & Marine Insurance Co.
_JjThe procedural history of this case is somewhat lengthy. On June 10, 2002, ap pellant Brenda Downing brought a wrongful death action on behalf of the Estate of Robert Harris against Lawrence Hall; Lawrence Memorial; St. Bernard’s Hospital, doing business as St. Bernard’s Regional Medical Center; Dr. Robert Quevil-lon; and John Doe Insurance Companies A through Z. Dr. Quevillon and St. Bernard’s were dismissed without prejudice in October 2005 and September 2005, respectively. Lawrence Hall and Lawrence Memorial filed a motion to dismiss on October 19, 2005, arguing that Downing lacked authority to file a complaint on behalf of the estate because letters of administration had not been filed at the time the complaint was filed. The circuit court granted the motion to dismiss the complaint in an order filed on November 22, 2005.
Downing filed a notice of appeal on December 2, 2005, and attempted to appeal the circuit court’s decision to this court; however, as noted above, we dismissed the appeal for lack of a final order because there was no order dismissing the John Doe defendants in the record. Downing v. Lawrence Hall Nursing Ctr., 868 Ark. 51, 248 S.W.3d 263 (2006).
About a year after the dismissal of Downing’s appeal, in November 2007, this court handed down the case of Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007), which held that, pursuant to Act 438 of 2007, letters of administration are not necessary to empower a person appointed to act for an estate, as long as there is an order appointing that person [¡¡administrator. On January 17, 2008, Downing filed a motion to set aside the November 2005 order of dismissal that had been based on her lack of letters of administration. The circuit court entered an order on February 13, 2008, granting her motion and setting aside the previous order of dismissal.
On January 29, 2008, Downing filed an amended complaint again naming Lawrence Hall and Lawrence Memorial and adding St. Paul Fire & Marine Insurance Co. as the liability carrier for those entities. Downing’s complaint alleged that both Lawrence Hall and Lawrence Memorial were “non-profit/government entities] owned and controlled by Lawrence County, Arkansas.” The complaint further asserted that St. Paul, as the liability carrier, was “made a defendant to the extent its insureds are all immune from suit for tort pursuant to Ark.Code Ann. § 21-9-301 and Ark.Code Ann. § 16-120-101 et seq.”
Lawrence Hall and Lawrence Memorial answered the amended complaint on February 7, 2008. In the answer, the defendants admitted that they were insured by St. Paul, but affirmatively asserted that the statute of limitations barred Downing’s complaint against St. Paul. St. Paul moved for summary judgment on the same date, arguing that the amended complaint, which attempted to substitute St. Paul for the John Doe defendants, could not relate back to the original complaint so as to defeat the statute of limitations. In its | .¡accompanying brief, St. Paul argued that its existence had been known to Downing since January 2003, and Downing’s failure to amend her complaint to name it as a defendant precluded relation back pursuant to Ark. R. Civ. P. 15(c).
Downing responded to St. Paul’s motion for summary judgment on February 29, 2008. In her response, she pointed out that, during the pendency of the lawsuit, the law in this state regarding charitable immunity had changed radically. She argued that at the time she filed her initial complaint on June 10, 2002, this court had, on May 9, 2002, handed down Clayborn v. Bankers Standard Insurance Co., 348 Ark. 557, 75 S.W.3d 174 (2002), which held that there was no direct action against liability insurers for nonprofit corporations. That decision was affirmed in Scamardo v. Joggers, 356 Ark. 236, 149 S.W.3d 311 (2004), which was handed down on February 26, 2004. As mentioned above, the circuit court dismissed Downing’s complaint on November 22, 2005, because she did not have letters of administration. Three weeks later, however, this court decided the case of Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005), which overruled both Clayborn and Scamardo and held that a plaintiff could bring a direct action against a liability carrier.
Downing also noted in her response to St. Paul’s motion for summary judgment that, when this court dismissed Downing’s appeal for lack of a final order on November 16, 2006, her counsel was aware that the Steward v. Statler case, dealing with the letters-of-administration issue, was pending before this court. Very shortly after that opinion came |fidown on November 1, 2007, Downing successfully had the earlier order of dismissal set aside and filed her amended complaint that named St. Paul, the liability carrier for Lawrence Hall. Dovming argued that her decision not to add St. Paul up to that point was not a “strategic decision,” as argued in St. Paul’s summary-judgment motion, but was based on the law of charitable immunity at the time she filed her complaint and amended complaint. Therefore, she contended, she had complied with Rule 15(c), and her amended complaint naming St. Paul should relate back to the filing of the original complaint.
After a hearing on April 3, 2008, the circuit court entered an order on May 16, 2008, granting St. Paul’s motion for summary judgment, finding that the statute of limitations had run against St. Paul. The court’s order thus dismissed St. Paul with prejudice. Lawrence Hall and Lawrence Memorial subsequently filed a motion to dismiss, asserting that, as charitable institutions, they were completely immune from being sued in tort. Because they had admitted in their answer that they were “non-profit corporations/government entities,” they urged that the complaint against them should be dismissed with prejudice. Downing responded that Lawrence Hall and Lawrence Memorial had not proven that they were charitable entities entitled to immunity. In addition, Downing alleged that their immunity was legislatively abrogated or waived with respect to her Residents’ Rights Act claims and that the courts should abrogate the doctrine of charitable immunity in any event.
After a hearing on January 21, 2009, the circuit court entered an order on February 19, 2009, dismissing Lawrence Hall and Lawrence Memorial with prejudice. Downing filed [Ra motion for reconsideration on February 26, 2009, pointing out that this court handed down the case of Jackson v. Sparks Regional Medical Center, 375 Ark. 533, 294 S.W.3d 1 (2009), on February 12, 2009. Downing described Jackson as “discussing] the whipsaw effect on the plaintiff caused by the Clay-bom, Scamardo, and Low decisions,” and she asserted that the “same whipsaw effect” was the cause of the dismissals entered against her. The trial court did not rule on Downing’s motion for reconsideration, and it was thus deemed denied on March 30, 2009. Downing filed a timely notice of appeal on April 8, 2009. On appeal, she raises two main points: 1) charitable immunity does not bar some or all of her suit; and 2) the complaint against St. Paul was not time-barred.
In her first argument on appeal, Downing contends that the circuit court erred in concluding that Lawrence Hall was entitled to charitable immunity. She raises three separate arguments under this point heading. First, Downing claims that Lawrence Hall and Lawrence Memorial did not prove their entitlement to charitable immunity. Second, she urges that her claim under the Arkansas Residents’ Rights Act is not barred by charitable immunity. Finally, Downing asks this court to abrogate the doctrine of charitable immunity.
In reviewing a court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Dollarway Patrons for Better Schs. v. Morehead, 2010 Ark. 133, 361 S.W.3d 274; Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be |7liberally construed. Dollarway Patrons, supra. However, when a complaint is dismissed on a question of law, this court conducts a de novo review. Id. (citing Branning v. State, 371 Ark. 433, 267 S.W.3d 599 (2007)).
In her first subpoint, Downing argues that the trial court should not have granted Lawrence Hall and Lawrence Memorial’s motion to dismiss on charitable-immunity grounds because there was no proof of their status as charitable entities. She urges that, because charitable immunity is an affirmative defense, it was the defendants’ burden to prove that they were entitled thereto. Lawrence Hall and Lawrence Memorial respond that Downing initially pled that they were charitably immune in her complaint; they admitted that they were immune in their answer; and therefore, due to her “concession,” there was no need for them to present any evidence of their charitable status.
In both her original complaint and her amended complaint, Downing included the following paragraphs:
4. Lawrence Hall Nursing Center is a non-profit corporation/ government entity owned and controlled by Lawrence County, Arkansas, with its principal place of business at 1309 West Main Street, Walnut Ridge, AR 72476.
5. Lawrence Memorial Hospital is a non-profit corporation/ government entity owned and controlled by Lawrence County, Arkansas, with its principal place of business at 1309 West Main Street, Walnut Ridge, AR 72476.
Moreover, in her original complaint, Downing asserted that “Defendants John Doe Insurance A through Z are the insurers for Lawrence Hall [and] Lawrence Memorial ... and are made a defendant to the extent its insureds are all immune from suit for tort pursuant to RArk.Code Ann. § 21-9-301 and Ark.Code Ann. § 16-120-101 et seq.” Similarly, her amended complaint stated that “Defendant St. Paul Fire & Marine Insurance Company is the liability insurer for Lawrence Hall and Lawrence Memorial and is made a defendant to the extent its insureds are all immune from suit for tort pursuant to Ark.Code Ann. § 21-9-301 and Ark.Code Ann. § 16-120-101 et seq.”
In their answer to the original complaint, Lawrence Hall and Lawrence Memorial stated that they “admit that they are a nonprofit corporation/governmental charitable entity ... [and] affirmatively assert that they are immune from suit under the provisions of governmental and charitable immunity, and therefore, Plaintiffs complaint as to these defendants should be dismissed with prejudice.” They further “admit[ted] that they are immune from suit pursuant to Ark.Code Ann. §§ 21-9-301 and 16-120-101 et seq.” Their answer to the amended complaint admitted the allegations of paragraphs 4 and 5, set out above, and further admitted that Lawrence Hall and Lawrence Memorial “were at times insured by St. Paul Fire & Marine Insurance Company.” In addition, the answer to the amended complaint contained a paragraph stating that the defendants “adopt, reallege, and reassert any and all answers, defenses, and affirmative defenses set forth in the Answer to Plaintiffs Complaint previously filed with the court.”
In their motion to dismiss, Lawrence Hall and Lawrence Memorial asserted that it was “undisputed [that Downing] has asserted that the Lawrence Defendants are ‘non-profit corporations/government entities’ in her pleadings and defendants have admitted same.... [ ^Accordingly, the Lawrence defendants must be dismissed with prejudice as a matter of law.” As mentioned above, the circuit court agreed and granted Lawrence Hall and Lawrence Memorial’s motion to dismiss. On appeal, Downing urges that the circuit court should not have granted the motion to dismiss in the absence of any evidence that Lawrence Hall and Lawrence Memorial were, in fact, entitled to charitable immunity.
The “essence of the charitable-immunity doctrine is that agencies, trusts, etc., created and maintained exclusively for charity may not have their assets diminished by execution in favor of one injured by acts of persons charged with duties under the agency or trust.” Anglin v. Johnson Reg’l Med. Ctr., 375 Ark. 10, 15, 289 S.W.3d 28, 31 (2008) (quoting George v. Jefferson Hosp. Ass’n, 337 Ark. 206, 211, 987 S.W.2d 710, 712 (1999)). The doctrine favors charities and results in a limitation of potentially responsible persons whom an injured party may sue. Id. Therefore, we give the doctrine a very narrow construction. Id.; George v. Jefferson Hosp. Ass’n, supra (citing Williams v. Jefferson Hosp. Ass’n, 246 Ark. 1231, 442 S.W.2d 243 (1969)). To determine whether an organization is entitled to charitable immunity, courts consider the following factors:
(1) whether the organization’s charter limits it to charitable or eleemosynary purposes; (2) whether the organization’s charter contains a “not-for-profit” limitation; (3) whether the organization’s goal is to break even; (4) whether the organization earned a profit; (5) whether any profit or surplus must be used for charitable or eleemosynary purposes; (6) whether the organization depends on contributions and donations for its existence; (7) whether the organization provides its services free of charge to those unable to pay; and (8) whether the directors and officers receive compensation.
IinAnglin, 375 Ark. at 16, 289 S.W.3d at 31-32. These factors are illustrative, not exhaustive, and no single factor is dispositive of charitable status. Id., 289 S.W.3d at 32.
In the present case, Lawrence Hall and Lawrence Memorial offered no proof on any of these factors. They urge that they did not need to because Downing’s complaint had already pled that they were charitably immune, and that proof of these factors is only necessary when a hospital’s charitable status is being challenged by the plaintiff. Downing responds that she never alleged that the defendants were charities and that she only stated that they were nonprofits that might claim immunity, and if they did, their insurance carriers would be liable under the direct-action statute.
This court has specifically held that charitable immunity is an affirmative defense. Felton v. Rebsamen Med. Ctr., 373 Ark. 472, 480, 284 S.W.3d 486, 492 (2008). In Felton, this court concluded that charitable immunity falls into “the catch-all provision of Rule 8(c), as it is ‘any other matter constituting an avoidance or affirmative defense,’ ” and as such, the defense “must be specifically pled to be considered by the circuit court.” Felton, 373 Ark. at 480, 284 S.W.3d at 492 (citing Ark. R. Civ. P. 8(c)). The burden of pleading and proving an affirmative defense is on the party asserting it. Vent v. Johnson, 2009 Ark. 92, at 13, 303 S.W.3d 46, 52 (holding that statutory immunity under Arkansas Code Annotated section 21-9-301 was an affirmative defense that had to be asserted and proven by the defendant).
In Here, as noted above, the Lawrence Hall defendants contend that Downing “pled” that they were charitably immune, and they were therefore required to do nothing more than “admit” to that status. Downing’s complaint, however, did not plead that the defendants were charitably immune; rather, as set out above, she only stated that Lawrence Hall and Lawrence Memorial were nonprofit entities and that the insurers were made defendants “to the extent” that Lawrence Hall and Lawrence Memorial were immune from suit in tort.
An entity’s status as a nonprofit organization is but one factor to be considered in determining whether it is entitled to charitable immunity. See Masterson v. Stambuck, 321 Ark. 391, 902 S.W.2d 803 (1995) (adopting the eight factors for establishing charitable status). More to the point, an entity claiming charitable-immunity status bears the burden of affirmatively pleading the defense and proving its entitlement thereto. See Felton, supra. This court has specifically held that “Merely asserting [one’s] status as a not-for-profit corporation is not equivalent to specifically raising the affirmative defense of charitable immunity, as not all not-for-profit organizations will be immune under the doctrine.” Neal v. Sparks Reg’l Med. Ctr., 375 Ark. 46, 51, 289 S.W.3d 8, 11 (2008) (citing George, supra).
Accordingly, we conclude that the circuit court erred in granting Lawrence Hall and Lawrence Memorial’s motion to dismiss based on their “admission” that they were charitably immune. It was the appellees’ burden to specifically plead and prove this affirmative defense, 112and “admitting” only that they were nonprofit organizations was insufficient to meet the pleading requirements for this defense.
In her second point on appeal, Downing argues that the circuit court erred in granting St. Paul’s motion for summary judgment on statute-of-limita tions grounds. When Downing filed her amended complaint in January 2008 after this court’s dismissal in Downing I and our decision in Steward v. Statler, supra, she named St. Paul as a defendant as the liability insurer for Lawrence Hall and Lawrence Memorial. St. Paul moved for summary judgment on February 7, 2008, asserting that, although the courts will permit a substitution for a John Doe defendant after the statute of limitations has expired, they will only do so when the substitution satisfies the requirements of Arkansas Rule of Civil Procedure 15(c). St. Paul asserted that Downing knew that it was Lawrence Hall and Lawrence Memorial’s insurance carrier as of January 24, 2008, when the defendants sent Downing a letter supplementing discovery and identifying St. Paul. Because Downing had delayed naming St. Paul as a defendant for five years after filing her lawsuit, St. Paul argued that she had not met the requirement of Rule 15(c), and her amended complaint should be dismissed as to the insurer. The circuit court agreed and entered an order granting St. Paul’s summary-judgment motion on May 16, 2008.
|lsOn appeal, Downing argues that the circuit court erred in concluding that her amended complaint did not relate back to the time of the filing of her original complaint and was thus time-barred. Arkansas Rule of Civil Procedure 15(c) governs the relation back of amended pleadings and provides as follows:
An amendment of a pleading relates back to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, -within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
In this case, St. Paul concedes that the claim asserted in the amended pleading arose out of the same transaction set forth in the original pleading, and it agrees that it received notice of the institution of the lawsuit in a timely fashion. St. Paul disputes only the matter of whether Downing’s failure to name it in the original complaint was due to a “mistake concerning the identity of the proper party,” contending that Downing’s decision not to sue it at that time was a purposeful calculation that should not be utilized to circumvent the statute of limitations.
It is important to recall the timeline in this case, both of Downing’s pleadings and the changes in this court’s case law. Downing’s original suit was filed on June 10, 2002. This lucourt’s opinion in Clayborn v. Bankers Standard Insurance Co., 348 Ark. 557, 75 S.W.3d 174 (2002), was handed down on May 9, 2002. Clayborn held that Arkansas Code Annotated section 23-79-210, the direct-action statute, only provided for direct actions against an insurer in the event the organization at fault was immune from suit in tort. Clay-bom further stated that this court had “never held that charitable organizations are completely immune from suit, but rather, we have only held that they are immune from execution against their property.” Clayborn, 348 Ark. at 567, 75 S.W.3d at 180.
Thus, at the time Downing filed her complaint, the law in Arkansas indicated that the action should be filed against the charitable entity, rather than its insurer. Accordingly, under the law in Arkansas at the time she filed her complaint, Downing properly brought suit against Lawrence Hall and Lawrence Memorial, alternatively naming John Doe insurance company defendants “to the extent [the] insureds are all immune from suit for tort.”
The law did not change until December 15, 2005, when this court decided the case of Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005), overruling both Clayborn and Scamardo v. daggers, 356 Ark. 236, 149 S.W.3d 311. In Low, this court held that the “not subject to suit for tort” language in the direct-action statute was synonymous with a charitable organization’s immunity from tort liability, and plaintiffs alleging injury by a charitable organization could bring suit against the charity’s liability insurer under the direct action statute. See Sowders v. St Joseph’s Mercy Health Ctr., 368 Ark. 466, 470, 247 S.W.3d 514, 517 (2007).
[fiJust prior to Low, Downing had filed a notice of appeal from the circuit court’s dismissal of her complaint on the letters-of-administration issue. After resolution of that appeal — and after awaiting this court’s decision in the Steward v. Stabler case regarding letters of administration— Downing successfully petitioned the circuit court to set aside the earlier dismissal. At that time, Downing filed her amended complaint, substituting St. Paul for the previously named John Doe insurance carriers, on January 29, 2008. St. Paul then moved for summary judgment on the grounds that the claims against it were time-barred because Downing’s decision to not name it earlier was not due to a mistake as to the defendant’s identity under Rule 15(c).
This court recently addressed an analogous situation in Jackson v. Sparks Regional Medical Center, 375 Ark. 533, 294 S.W.3d 1. In that case, Jackson filed a medical-injury action against Sparks Regional Medical Center, Steadfast Insurance, and several other individuals, including John Doe defendants, on February 7, 2002. On May 6, 2002, Jackson filed an amended complaint that substituted Columbia Casualty Co. for one of the John Doe defendants (Columbia was the proper liability carrier for Sparks, rather than Steadfast, which Jackson voluntarily non-suited on May 7, 2002). After this court handed down Scamardo in February of 2004, Jackson voluntarily nonsuited Columbia on April 6, 2004. Jackson also took a nonsuit as to Sparks on July 29, 2004. In July 2005, within the one-year savings statute, Jackson refiled his complaint against Sparks, various doctors, and John Does Nos. 1-10. In December 2005, this court handed down Low, 364 Ark. 427, 220 S.W.3d 670. On |1fiFebruary 26, 2007, Sparks filed a motion for summary judgment on the basis of charitable immunity, and on July 11, 2007, Jackson filed an amended complaint that added Columbia as a defendant. Jackson, 375 Ark. at 542-43, 294 S.W.3d at 7.
The circuit court in Jackson granted Columbia’s motion for summary judgment. On appeal Jackson argued that he had been “whipsawed” by the changes in the law on charitable immunity during the course of his lawsuit, and that his amended complaint naming Columbia should relate back to the filing of his original suit. This court agreed, concluding that, at the time Jackson refiled his lawsuit, Scamardo was the prevailing law, and Columbia thus could not have been the appropriate party to sue when that complaint was filed. Id. at 543, 294 S.W.3d at 7.
This court further held that relation back of the amended complaint under Rule 15(c) was proper, stating that
Rule 15(c) states only that there needed to be a “mistake concerning the identity of the proper party.” (Emphasis added [in original]). While Jackson obviously knew that Columbia was the correct liability insurer for Sparks, he was unaware that Columbia was the proper defendant because of the change in the law. In fact, Columbia was not the proper defendant during the time within which he was required to refile his lawsuit. Columbia only became the proper defendant after Low, which was not decided until after Jackson lost his opportunity to refile against it.
Id. at 544, 294 S.W.3d at 8. The court further pointed out that it was this court’s decisions that caused Jackson to make an “understandable mistake,” and to not allow Rule 15(c) to apply “would indeed have an unfair and prejudicial result.” Id. at 545, 294 S.W.3d at 9.117Therefore, we held that Jackson satisfied all of the requirements of Rule 15(c) and that the circuit court had erred in granting Columbia’s motion for summary judgment.
St. Paul argues that the instant case is more akin to George v. Jefferson Hospital Ass’n, 337 Ark. 206, 987 S.W.2d 710, in which this court held that the amended complaint did not meet the requirements of Rule 15(c) and thus could not relate back. In George, however, the complaint was filed prior to the upheavals in this court’s decisions concerning charitable immunity. There, the plaintiffs decision to omit the insurance carrier was not based on a mistake as to the insurer’s identity, but was the result of a strategic decision to avoid suing the insurer prior to a judicial determination of the hospital’s charitable status. George, 337 Ark. at 216, 987 S.W.2d at 715. Thus, the decision not to name the insurer was a “purposeful calculation, mistaken perhaps, as to its consequence but not as to its choice of parties.” Id. at 217, 987 S.W.2d at 715.
We conclude that Jackson is the controlling case. At the time Downing filed her lawsuit in June of 2002, Downing properly named the Lawrence defendants and, alternatively, the John Doe defendants, based on this court’s language in Claybom. However, after the Low decision, St. Paul became the proper party, and Downing amended her complaint to reflect the new situation. Thus, under this court’s reasoning in Jackson, her | ^mistake was as to the identity of the proper party and, as a result, the circuit court erred in finding that Downing’s amended complaint against St. Paul was barred by the statute of limitations and in granting St. Paul’s motion for summary judgment.
Reversed and remanded.
. The complaint also alleged causes of action for negligence and medical malpractice, as well as claims under the Arkansas Residents’ Rights Act. See Ark.Code Ann. § 20-10-1201 to -1209 (Repl.2005).
. Arkansas Code Annotated section 21-9-301 (Repl.2004) affords tort immunity to political subdivisions of the state, except to the extent that they are covered by liability insurance, and Arkansas Code Annotated section 16-120-101 to -105 (Repl.2006) grants a measure of tort immunity to board members of nonprofit corporations and governmental entities.
.Discovery was provided to Downing at that time naming St. Paul as the insurer.
. At oral argument, counsel for Lawrence Hall and Lawrence Memorial conceded that no proof was offered as to the defendants’ status as charitable entities.
. As mentioned above, Downing also argues that charitable immunity has been legislatively abrogated with respect to claims under the Arkansas Residents' Rights Act, Arkansas Code Annotated section 20-10-1201 to -1209 (Repl.2005), and that this court should judicially abrogate the doctrine altogether. Because it has not been demonstrated that Lawrence Hall and Lawrence Memorial are indeed entitled to charitable immunity, it would be premature for this court to consider or decide these issues at this juncture.
. That she waited over two years after Low to do so is immaterial. Downing had filed her notice of appeal in the letters-of-administration case two weeks before Low was handed down, and thus there was an ongoing appeal during much of the time between the Low decision and Downing’s amended complaint. In Jackson, this court noted that Jackson waited eighteen months after Low was decided to file his amended complaint, and while there was nothing in the record to suggest why, "the situation would not have been any different had he attempted to do so immediately following Low,” the statute of limitations having already run. Jackson, 375 Ark. at 545, 294 S.W.3d at 8. | [
-79,
-4,
-35,
44,
10,
-29,
114,
18,
115,
-31,
39,
83,
-81,
-32,
29,
111,
-29,
61,
-63,
121,
-15,
-73,
87,
-96,
-42,
-6,
-13,
7,
-96,
95,
-10,
-2,
77,
97,
10,
-107,
-58,
-126,
-51,
80,
-114,
9,
-120,
-27,
89,
-37,
36,
123,
94,
7,
117,
-97,
-13,
41,
20,
66,
72,
40,
121,
-83,
80,
-80,
-117,
-123,
95,
18,
32,
-124,
-104,
5,
88,
58,
28,
49,
32,
-88,
50,
-90,
-114,
52,
75,
-103,
13,
103,
98,
35,
-123,
-11,
-96,
-72,
46,
78,
-99,
-121,
-102,
57,
112,
8,
-107,
-99,
116,
20,
3,
124,
-18,
-106,
30,
44,
-52,
-49,
-106,
-79,
-50,
-44,
28,
-86,
-18,
23,
32,
113,
-119,
34,
90,
-57,
50,
59,
-50,
-110
] |
Mehaeey, J.
On May 28,1931, the appellees were the owners of an automobile service station in Fayetteville, Arkansas, and executed in writing a lease called the “Private Service Station Lease,” for the period of from June 1, 1931, to June 1, 1934, and, on the same day the appellant executed to appellees a license called “Private Service Station License Agreement,” for the same period of time. It was provided in each of the instruments that the appellant might revoke the license upon giving 10 days’ notice, and mig’ht terminate the lease by giving a like notice and paying $5.
Some time about January 22, 1932, the appellant served notice upon appellees of the cancellation of the license. It did not undertake to cancel the lease. At the same time that it served notice of the cancellation of the license, it offered another contract too appellees, which they declined to accept.
In June, 1932, appellees filed this suit in the Washington 'Chancery- Court for the cancellation of both ’the lease and license. It alleged, among other things, that they were procured by fraud. Considerable evidence was taken on the question of whether the lease was procured by fraud,
The property on which the lease was given was the homestead of appellees, and consisted of a two-story building, a portion of the first floor being occupied by a grocery, which extended the entire length of the building, There is a garage, and in front of the office and store building is the filling station. Appellees live above, occupying the whole of the second floor, and their dwelling extended over the filling station and land described in the lease.
Appellees are husband and wife, and the lease was not acknowledged by either.
Section 5542 of Crawford & Moses’ Digest is as follows: “No conveyance, mortgage, or other instrument affecting the homestead of any married man shall be of any validity except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same.”
The only question we find it necessary to determine is whether the lease was void because it was not acknowledged by the wife, and, that being true, it is unnecessary to set out the testimony with reference to fraud.
Our Constitution provides for homesteads, and the section we have above quoted provides that no instrument affecting the homestead shall be of any validity unless the wife acknowledges the instrument.
It is contended by appellant that it is unnecessary for the wife to sign and acknowledge a lease where it does not interfere with the comfortable use of the property as a homestead. It says that a leading case on the subject is Millikin v. Carmichael, 139 Ala. 226, 35 So. 706, 101 Am. St. Rep. 29.
The statute of Alabama, however, is somewhat different from ours. It provides that no mortgage, deed, or other conveyance of a homestead by a married man shall be valid without the voluntary signature and assent of the wife, etc. Our statute makes invalid any instrument affecting the homestead, but the court, in the case of Millikin v. Carmichael, supra, said: “The authorities are not uniform as to the right of the husband alone to lease the homestead premises, for this right has been both affirmed and denied. The most satisfactory rule would seem to be that the husband alone may lease the homestead lands for purposes not interfering with the use of the property as a homestead, hut cannot do so when the lease interferes with such possession and enjoyment of the premises by the wife.”
In that case the lease was to box and take from pine trees standing on the homestead gum or resin, and the court said that it did not deteriorate the value of the trees, diminish the value of the land, or otherwise impair its value as a homestead, but rather that its value was enhanced, and its use and occupancy as a homestead rendered more valuable.
Under statutes like the Alabama statute, it has been held, not only by the Alabama court, but by some other courts, that a lease like the one in the Alabama case, that in no way interfered with the occupancy of the homestead, did not require the signature and acknowledgment of the wife; but those cases all hold that, if it does in any way interfere with the use, occupancy and enjoyment of the homestead, the lease is void unless the wife signs and acknowledges same.
Taking gum and resin from pine trees in the forest would probably in no way affect the use or enjoyment of the homestead, whereas a stranger conducting a filling station right under the living rooms of the parties would certainly interfere with the occupancy and enjoyment of the homestead.
The same rule is announced in 15 A. & E. Enc. of Law, 674, and it is said in a note in the case of Mailhot v. Turner, 133 Am. St. Rep. 333, that a lease of the homestead property amounts to such an alienation as to render it void when executed by one of the spouses only, when it interferes with the possession and enjoyment of the premises as a homestead. If he may do so for a period of five years, as attempted in that case, he may continue to lease the premises for a longer period, and even for an indefinite period.
If the parties conld execute the lease in this case, they conld do it for an indefinite period. If appellants conld occupy the space in front of and under the floor where the parties were living without the wife’s consent and acknowledgment, then a valid lease could be given on any part of the building occupied as a homestead. We know of no court, however, that has ever held that this could he done.
In the case of Bacon v. Mirau, 148 Minn. 248, 180 N. W. 579, cited and relied on by appellant, the court said: “In this case the lease was of a business appendage, not a part of the residence, and the lease of it in no sense interfered with the family occupation, but added to the family income.”
Not only is our statute different from the statutes construed in the cases relied on by appellant, but this court has said, with reference to an oil and gas lease affecting the homestead: “In this connection it may be stated that under our statute no conveyance or other instrument affecting the homestead shall be of any validity except in certain enumerated cases, unless the wife joins in the execution of the instrument, and acknowledges it.” Miles v. Jerry, 158 Ark. 314, 250 S. W. 34.
Under our statute, no instrument affecting the homestead is valid unless the wife joins in the instrument and acknowledges the same, and this is true, although it might not interfere with the occupancy and enjoyment of the homestead.
In the last case referred to, the court was discussing a gas and oil lease, and held in that character of lease that the wife must join and acknowledge to make it valid.
Any instrument affecting the homestead must be acknowledged by the wife, and, if not, such instrument is void.
The decree of the chancery court is affirmed. | [
113,
125,
88,
-52,
8,
-32,
88,
-102,
-6,
-94,
39,
-41,
-23,
-46,
20,
41,
-30,
109,
112,
120,
-57,
-78,
70,
8,
-110,
-77,
-47,
93,
-80,
-51,
-10,
-41,
76,
36,
-30,
93,
-58,
-54,
-59,
-36,
-118,
33,
-103,
96,
-39,
-44,
52,
99,
64,
79,
69,
-121,
-95,
46,
49,
-57,
13,
46,
-27,
45,
-48,
-16,
-101,
-99,
111,
7,
50,
100,
-104,
-63,
106,
14,
-104,
17,
25,
-7,
115,
38,
-57,
124,
15,
-101,
9,
34,
98,
2,
33,
-21,
-28,
-116,
15,
-38,
29,
-90,
-16,
89,
3,
41,
-66,
-99,
89,
20,
77,
-10,
103,
-123,
95,
108,
10,
-50,
-42,
-95,
13,
-6,
-98,
9,
-17,
-57,
-79,
80,
-51,
-30,
93,
71,
119,
27,
-113,
-16
] |
Kirby, J.,
(after stating the facts). The court has nothing to do with the policy of such legislation; its province being only to determine the controversies arising ont of its enforcement and violation according to a fair construction thereof. It has long been the practice, both in onr Federal and 'State governments, to impose excise taxes upon certain products or commodities by requiring the use of adhesive stamps or labels attached to each package of the commodity or products. The use of revenue stamps by the Federal government in connection with the sale of tobacco products dates back to 1868. Act July 20, 1868, c. 186, 15 U. S. Stat., at L. 125, U. S. R. S. (1878), § 3'251.
The Federal statute imposes penalties and forfeitures for removing manufactured tobacco from the factory, except in proper packages duly stamped to indicate the payment of the tax. Lilienthal's Tobacco v. U. S., 97 U. S. 237, 24 L. ed. 901; U. S. v. Quantity of Tobacco, Fed. Cases Nos. 16105 and 16106, (especially at p. 656 of 27 Fed. Cas.).
The absence of the required stamp on the package is prima facie evidence of nonpayment of the tax, the dealers and manufacturers being held liable for selling or offering for sale cigars, etc., not properly boxed and stamped. U. S. R. S. (187i3) § 3373; U. S. v. Edwards, 25 Fed. Cas. 15025.
The statute alleged to have been violated by appel-lee in the sale of unstamped tobacco products is virtually in the language of the Federal statute, and provides: “Section 16. # * The absence of the proper stamps from any container of any tobacco products shall be notice to all persons that the tax has not been paid and shall be prima facie evidence of the nonpayment of such tax.” Act 152 of 1929, approved March 20, 1929, p. 767.
Our said act 152 of 1929 provides in § 4 thereof for the levy of an excise or privilege tax on certain tobacco products, specified in § 2 thereof, designating the amount of the levy upon cigars and cigarettes and requiring payment through the stamp tax system as prescribed therein.
■Section 1 of said act 152 of 1929 provides: “The business of handling, receiving, selling or offering for sale and dealing in, through sale, barter or exchange, tobacco products, as defined in § 2 of this act, is hereby declared to be a privilege under the Constitution and laws of the State of Arkansas, and the purpose of this act is to impose certain licenses, fees and taxes on this business.
Sections 2 and 3 of said act 152 of 1929 define the terms used in the act and require the “retailer” of tobacco products to pay for a permit or license annually.
Section 6 of said act 152 of 1929 prescribes the restrictions for retail dealers in the conduct of their business: “ (1). They shall not place in their stock or sell or otherwise dispose of any tobacco products to which proper stamps denoting the tax due thereon have not been affixed.” This section (2) also prescribes the procedure that must be followed in the purchase of revenue stamps; and (3) the time and manner that said stamps must be affixed to the packages of tobacco products and for their cancellation.
The court read to the jury § 9 of the act, which provides the penalties for violations thereof, and, on its own motion, over plaintiff’s several and specific objections, and over his objection to the charge as an entirety, gave the jury the following six additional instructions:
Instruction No. A-2: “So, if you find in this case that the defendant failed to comply with this statute, that is to say, had in her possession and sold or offered for sale packages of tobacco, cigars and cigarettes, and not having the stamps affixed thereto, (and the court will explain to you later what is meant by not having stamps affixed), then you will find for the plaintiff.”
Instruction No. A-3: “If you find that she did not have packages of cigars, cigarettes and tobacco on which stamps were not affixed, then it would be your duty to find for the defendant.”
Instruction No. A-4. “Now, gentlemen, the question arises, what is meant by packages of tobacco, cigars and cigarettes not having stamps affixed? If yon find in this case that the packages of cigarettes once had stamps affixed and were sold, and in the process of sale the defendant removed the stamps from the cigarettes intentionally to he preserved by her, then that would not be a compliance with the law which requires that stamps be affixed. ’ ’
Instruction No. 5-A. “But if you find that the stamps were once affixed to the packages and these stamps, in the process of sale, or before, had been intentionally removed, or in any manner removed by the intention of the defendant, then she would be liable the same as though the stamps had never been affixed. In other words, it is a matter of intention. If the stamps were once put on the cigarettes, and she .removed the stamps intentionally to preserve them, then she would be liable the same as though the stamps had never been put on the cigarettes; but, if these stamps were affixed, as required by law, and were removed by accident or in handling’ the cigarettes without any intention to preserve the stamps, then that would be a compliance with the law, and the defendant would not be liable for that.”
Instruction No. A-60. “Now, gentlemen, if you find for the plaintiff, it will be your duty to find for the plaintiff for twenty-five dollars for each package of cigarettes and each box of cigars that you find which wer¿ held or sold without the stamps being affixed. If you find for the plaintiff, you will find for the plaintiff in the sum for as many packages of cigarettes and boxes of cigars as you find that the stamps were not affixed under the instructions the court has given you. If you find for the defendant, you will say, ‘¥e, the jury, find for the defendant’.”
The court refused to give appellant’s requested instructions Nos. 5 and 6 as follows:
“5. You are instructed that, even though you may find that some or all of the packages did at one time have the stamps affixed, if the stamps were removed before delivery to a purchaser without the stamps being affixed and accompanying the packages, yon will find for the plaintiff.”
“6. As to the one carton sold to Mr. Gay, as testified to by him and by Miss Hughson, in which she and he testified that she removed the stamps before delivery, you are instructed to find for the plaintiff in the sum of $25 for each package in the carton.”
It is urged that the court erred in refusing to give the requested instructions for appellant, and in giving the six instructions objected to for appellee, telling the jury it was really “a matter of intention,” that the law would not be violated unless the stamps, that had been affixed to the packages of tobacco and cigarettes, had been intentionally removed to be preserved and used again, etc. That, if the stamps had been affixed, as required by law, and were removed by accident or in handling the cigarettes, without any intention to preserve the stamps, it would amount to a compliance with the law, and there would be no liability on the part of the defendant.
The court erred in giving the said instructions, and also in refusing to give the two requested instructions 5 and 6 for appellant.
The language of the statute is plain, unambiguous, and its meaning clear, and the court erred in refusing the instructions as requested by appellant. Instruction No. 6 was in effect a direction to find for the plaintiff on the carton of cigarettes sold to Mr. Gay, who testified, as did also the clerk, that said stamps were removed from the carton before its delivery upon the sale. Both the parties to the sale testified that they had been removed, although from one witness’ testimony it appeared that they were removed for preservation and use again, and the other stated that said stamps had been taken off and thrown into the waste basket. It could have made no difference for what purpose they were removed, since it is undisputed that said stamps were removed from the package of cigarettes before its delivery upon the sale, thus constituting a violation of the act.
If the stamps are not affixed and kept on the packages of cigarettes and tobacco, and canceled in accordance with the requirements of the law, it amounts to a violation thereof, for which the penalty is denounced and recoverable.
The correctness of this construction is confirmed by the provisions in the law for a refund for the amount of taxes paid upon stamped products not sold or disposed of, etc. Section 13, act 152 of 1929.
The absence of the proper revenue stamp from any container of any tobacco products would create the natural and reasonable inference that the tax had not been paid and the stamps affixed thereto in accordance with the requirements of the act, and the statute also expressly makes such showing prima facie evidence of the nonpayment of the tax, necessarily casting the burden of proof upon the defendant.
The court erred in refusing to give the said requested instructions on the part of the plaintiff and appellant, and in giving, over his objections, the said erroneous instructions requested on behalf of defendant, and also in refusing to direct a verdict as to one carton of cigarettes sold in accordance with requested instruction No. 6.
For these errors the judgment must be reversed, and the cause will be remanded for a new trial. It is so ordered. | [
-80,
-4,
-4,
109,
27,
-80,
43,
-70,
30,
-95,
-89,
83,
-19,
115,
-107,
55,
-13,
127,
49,
90,
-44,
-89,
55,
2,
102,
-9,
-39,
-43,
49,
125,
-27,
126,
12,
52,
-54,
-11,
103,
106,
-59,
90,
-18,
40,
40,
-57,
85,
100,
52,
43,
-61,
79,
97,
-121,
-29,
44,
-98,
-45,
9,
36,
-55,
21,
-31,
-24,
-70,
-100,
127,
6,
-79,
37,
-103,
-121,
-40,
10,
8,
17,
1,
-24,
115,
-91,
2,
84,
45,
61,
-128,
98,
-29,
-80,
125,
-83,
-84,
8,
47,
-14,
-67,
-58,
83,
89,
3,
-90,
-75,
-107,
52,
2,
-121,
126,
-54,
93,
-99,
60,
27,
6,
-76,
-94,
59,
124,
-114,
22,
-33,
-93,
25,
65,
-57,
-66,
93,
117,
62,
12,
-122,
-26
] |
'Smith, J.
Appellant recovered a judgment in the Franklin Circuit Court, Ozark District, against A. H. Metcalf in the sum of $549.46, upon which an execution was issued in due form on October 10, 1925. The execution was delivered by the clerk to the attorney for the judgment creditor, who, on the same day, sent it by registered mail to S. J. Davis, then the sheriff of the county, accompanied by a letter directing him to serve and return the execution according to law. A postal money order .for $1.60 was inclosed in this letter to cover the sheriff’s fees.
The sheriff returned the execution to the attorney who sent it to him in a letter dated October 17,1925, reading as follows:
“Replying to your letter of October 10th, covering! execution against A. H. Metcalf, you failed to send indemnifying bond which we require on all executions. If you will send bond with a list of the property that is not mortgaged, we will be glad to serve the execution for yon; otherwise we cannot.
“Very truly yours,
“Sebern J. Davis, Sheriff,
“By J. C. Mainard, D. S.”
In a letter dated October 31, 1925, the attorney replied to the sheriff’s letter as follows:
“In re Endicott-Johnson Corp. vs. A. H. Metcalf.
“I am in receipt of your letter dated October 17, 1925, returning to me execution which I sent to you for service in the above case, with the postoffice money order for $1.60 sent you to cover your fees. I am holding the execution and money order subject to your order, and you will please bear in mind that the Endicott-Johnson Corporation, judgment plaintiff in this execution, does not acquiesce in your refusal to perform your duties in connection therewith, in accordance with the law. ’ ’
No further correspondence passed between the parties, and this suit was brought against the sheriff and the sureties on his official bond under the provisions of § 4360, Crawford & Moses’ Digest, to recover the amount of the judgment for the alleged failure and refusal to levy and make return of the execution.
The cause was submitted to the jury, under instructions, of which no complaint is made, except that it is insisted that the jury should have been directed to return a verdict in favor of the plaintiff, the judgment creditor. The verdict of the jury, however, was in favor of the defendants, and from the judgment pronounced thereon is this appeal.
The letter from the sheriff, signed by his chief deputy, assigns, as a reason for not levying the execution, the failure of the plaintiff “to send indemnifying bond which we require on all executions,” which was not a sufficient excuse. It was definitely decided, in the case of Mayfield Woolen Mills v. Lewis, 89 Ark. 488, 117 S. W. 558, that a sheriff may not demand an indemnifying bond in all cases before levying an execution, but that, on the contrary, he may make this demand only when, acting* in good faith, he doubts that property is subject to execution which appears to be so. In the case of Mayfield Woolen Mills v. Lewis, supra, it was said: “We are therefore of the opinion that, under the provisions of the above sections (42i87 and 4288, Crawford & Moses,’ Dig’est), the doubt as to whether the property is subject to execution arises when the officer acts in g-ood faith and a claim is actually made relative to the property or such circumstances exist as might well justify a prudent person in apprehending litigation relative thereto; and in such cases the officer has the right to demand an indemnifying bond. And the officer in whose hands an execution has been placed cannot arbitrarily demand an indemnifying bond.”
Testimony was offered to the effect that Metcalf, the judgment debtor, was in the actual and open possession of a stock of goods, located in a building fronting the courthouse square, of which fact the sheriff was advised, yet the sheriff made no attempt to levy upon this stock of goods, although same was unincumbered.
It appears from the testimony that Metcalf was in failing circumstances, and was operating on capital largely borrowed from a local bank, but had given the bank no mortgage. He first bought a half interest in the stock of goods, and later bought the other half, for which he paid $2,000. In this connection he borrowed $3,500 from a local bank, and owed about $6,000 when he went into bankruptcy in February or March, 1926. Numerous suits were brought against Metcalf in 1925, and a number of judgments were recovered against him, but these were for small amounts in a court of a justice of the peace. The testimony of the deputy sheriff indicates that these judgments were collected by the sheriff from the cashier of the bank.
The sheriff was dead at the time of the trial from which this appeal comes, but his chief deputy testified that he and the sheriff — his principal — made inquiry about the judgment defendant, and that the result of their investigation was that the financial condition of Metcalf was such that they were afraid to levy the execution without an indemnifying' bond. The sheriff discussed this execution with the cashier of the bank, and reported the result of his investigation to his deputy who had the execution in hand, but, upon objection of plaintiff’s counsel, the court refused to permit the deputy sheriff to state what this report was as to Metcalf’s financial condition. Metcalf owned an automobile which was mortgaged; and so were the store fixtures, and so also was Metcalf’s home, and the deputy sheriff, who wrote the letter, set out above, returning the execution, testified that it was his impression at the time the letter was written that Metcalf had no property subject to execution. The money order was never returned to the sheriff’s office, nor was any property pointed out to the sheriff, or his deputy, which was subject to execution. The deputy admitted that he knew of the stock of goods, but he was not permitted to testify as to his conversation with his principal about it. On the cross-examination of the deputy sheriff, he was asked: “Q. You say you found no property to levy the execution on?” and he answered: “A. No, sir; what stock he did have, the shelves were filled with empty boxes, and that stock was about all the property he had.”
It is true, as has been said, that there was no mortgage on the stock of goods; and it is true also, as was said in the case of Coffman v. Citizens’ Loan & Inv. Co., 172 Ark. 889, 290 S. W. 961, that goods and chattels exposed daily for indiscriminate sale to the general public, at the place of business of the owner, and over which the dealer or merchant is permitted to exercise dominion, cannot be made the subject of a valid chattel mortgage. But the testimony, in its entirety, presents the issue of fact whether the sheriff acted in good faith in demanding an indemnifying bond. No specific request was made that the execution be levied upon the stock of goods, nor was the sheriff advised that it was subject to execution and was unincumbered, and the testimony supports the finding by the jury that there had been no palpable dereliction of duty on the part of the sheriff.
Upon the second appeal in the case of Mayfield Woolen Mills v. Lewis, 97 Ark. 149, 133 S. W. 590, it was said: “ 'The statute in question is highly penal, and the party invoking it must bring himself within both the letter and spirit of it.’ Craig v. Smith, 74 Ark. 364, 85 S. W. 1124. It 'was not enacted as a substitute for an ordinary action to recover the amount due, but was to reach palpable derelictions on the part of the officer. ’ Williams v. State, 65 Ark. 159, 46 S. W. 186. 'Its terms should not be extended to cases not within its plain meaning. ’ Mayfield Woolen Mills v. Lewis, 89 Ark. 488, 117 S. W. 558, citing Hawkins v. Taylor, 56 Ark. 45, 19 S. W. 105; Moore v. Rooks, 71 Ark. 562, 76 S. W. 548.”
The verdict of the jury is not without testimony to support it,, and it is therefore affirmed. | [
-16,
-24,
-24,
-99,
26,
-32,
42,
-118,
-46,
-29,
-92,
83,
-55,
5,
1,
37,
-95,
61,
-11,
105,
-60,
-77,
119,
111,
-45,
-14,
-51,
-43,
-71,
-51,
-28,
-44,
76,
48,
-62,
-99,
6,
-30,
-59,
-102,
-50,
-96,
-87,
-23,
-39,
-126,
48,
-65,
23,
11,
5,
31,
-22,
63,
19,
91,
109,
42,
123,
63,
-48,
-15,
-101,
-123,
127,
22,
-79,
-91,
-104,
1,
88,
46,
-104,
53,
0,
-7,
114,
-106,
-58,
84,
45,
73,
12,
122,
98,
1,
-107,
-51,
-72,
-40,
31,
-66,
-123,
-90,
17,
24,
122,
-116,
-74,
-99,
126,
20,
-122,
124,
-89,
5,
17,
44,
11,
-114,
-80,
-109,
-113,
44,
-114,
-97,
-17,
-126,
32,
81,
-51,
-78,
95,
-57,
122,
-69,
-50,
-48
] |
Bunn, C. J.
This is a suit for balance of salary claimed to be due, amounting to the sum of $400 and interest. Judgment for plaintiff, and defendant appealed.
The evidence shows that one F. R. Pierce was vice-president of the Ai’kadelphia Lumber Company up to the first Monday in February, 1897, when he was succeeded by the plaintiff, H. R. Asman. While vice-president, Pierce was agent to sell the product of the mill. He received'for his services $2400 per annum. It seems that Asman took the place of Pierce, nothing being said further as to pay or how long the employment should continue. Asman worked for the company one year, and was paid for his services at the rate of $2400 per annum, or $200 per month. He continued in his second year without anything being said farther, and, we infer, continued to be paid monthly at the same rate until in September, 1898, his resignation was demanded on the ground that his services were no longer needed. He did not directly respond to this demand, but sent a blank to the president and principal officer of the company, who had given him the appointment in the^first instance, for him, the president, to fill out and return to him, which was done; but Asman declined to sign the form of resignation himself. This correspondence resulted in Asman’s absolute refusal to resign, explaining in the meantime his attitude in the matter, so as to relieve himself of the charge of having conceded the right of the defendant company to discharge him. He seems to have been paid up to December, and sued for two months’ salary.
The general rule on this subject is that when one is employed to be paid so much per month, the employment is merely at will, or as long as the employee shall work, the stated amount being merely indicative of the rate at which the employee is to be paid for the time he may work. Wright v. Morris, 15 Ark. 444; Haney v. Caldwell, 35 ib. 156; Martin v. N. Y. Life Ins. Co., 148 N. Y. 117, 42 N. E. Rep. 416.
■ But it is argued, in effect, that the extraneous circumstances in evidence take this case of the general rule, and one of these circumstances is that the employment as agent to sell the product of the mill was, in some way, so intimately connected* with the office of vice-president that the time for which this employment ran was the same as the tenure of office of vice-president, which is conceded to be one year. Indeed, this, as a question, was submitted to the jury by the court in the. sixth instruction, which reads as follows, viz.: “If you believe that there was no compensation attached to the office of vice-president, he can recover nothing on that score. But if. ;you believe the election of vice-president placed him in a position to manage and conduct the business, and for that he was to receive a salary while vice-president, you may take that into consideration in determining whether that was a matter which fixed the period of his contract. That is to say, if he,was employed as vice-president, for which he received no emolument, but by reason of his vice-presidency he was assigned to another position, for which he was to receive $2400 per annum, you can take that fact into consideration in determining whether it was understood between the parties that he was to receive $2400 a year, or $200 per month.” That instruction would have been allowable, had there been any evidence to support it. It is true, Asman, while vice-president, was appointed to perform this outside duty, which had no relation to the duties of the vice-presidency, so ' far as the record shows, and which, in effect, is conceded to be the fact. The vice-president, moreover, was elected by the stockholders at an authorized meeting; whereas we gather that the plaintiff was appointed to sell the products of the mill by the president of the company, who apparently had the general management pf the affairs of the company, and could make this appointment. No rule or by-law is shown by which this agent appointed by the president was to exercise the duties of his agency during the time he should hold the vice-presidential office; or that the agency was a necessary adjunct to the vice-presidential office. In other words, there is nothing shown that Asman was vice-president and ex-officio agent to sell the products of the mill. All that is shown is that Pierce, the predecessor of appellee, was the vice-president of the company, and at the same time he was the traveling salesman of the company, and had free transportation from the company to travel in performing the duties of salesman; and that the president and general manager gave Asman Pierce’s place as such agent, the company having given him a small amount of stock and elected him vice-president.
The instruction therefore was not supported by the evidence, and was misleading, and therefore erroneous.
For this error, the judgment is reversed, and cause remanded for further proceedings not-inconsistently herewith.
We express no further opinion as to the evidence, as the case goes back for re-trial. | [
-110,
-5,
-72,
-99,
-102,
96,
58,
122,
89,
-29,
39,
117,
-51,
102,
9,
53,
-77,
61,
113,
11,
-75,
-77,
19,
74,
-62,
-45,
-15,
-59,
-67,
108,
-75,
-35,
77,
48,
10,
-47,
-30,
-94,
-51,
28,
-114,
-123,
-71,
-18,
-39,
64,
48,
21,
64,
75,
37,
-34,
-5,
44,
20,
107,
13,
46,
-1,
43,
-16,
-15,
-78,
-115,
127,
20,
-110,
7,
-104,
67,
-56,
46,
-120,
53,
-96,
-63,
123,
-74,
-122,
84,
35,
-67,
13,
-30,
-25,
18,
-127,
-91,
-70,
-36,
62,
-10,
-115,
-90,
-79,
120,
11,
73,
-74,
-108,
126,
20,
23,
126,
-6,
21,
-100,
104,
3,
-114,
-58,
-30,
-113,
118,
-98,
-121,
-17,
-107,
16,
97,
-49,
-93,
93,
71,
104,
-109,
-121,
-24
] |
Smith, J.
Appellees were the owners of certain lots, • which were sold to appellant Troy W. Lewis, on account of the nonpayment of the drainage taxes due thereon for the year 1913. The sale took place December 21,1914, at which time the period allowed by law for redemption from such sales was one year. The General Assembly of 1915 passed an act, which was approved and became effective on February 9, Act 43, page 123, of that year, wherein it was provided that a period of five years should be allowed for redemption from sale for drainage and other special assessments. Lewis assigned the certificate of purchase to his wife, and, upon the expiration of the year, the sale was duly confirmed and a commissioner’s deed executed to Mrs. Lewis. Thereafter, Lewis entered into negotiations with appellees concerning the lots.
Appellees say Lewis told them he was the owner of the lots, which constituted their homestead, and that he threatened to turn them out of doors unless they would pay him $125 for a quitclaim deed. This statement was denied by Lewis, but there was no testimony of any immediate coercion, and this alleged threat, if made, could have meant only that Lewis intended to enforce the rights given him under his purchase.
Lewis and wife executed a quitclaim deed to appellees, for the consideration of $125, which was not paid, but was secured by a deed of trust on the lots for that amount. Appellees brought this suit to cancel this instrument, upon the theory that it was a cloud upon their title, and was void, and the complaint, in which this relief was prayed, was accompanied by a tender of the taxes, penalty, and costs paid by Lewis on account of his tax purchase. Upon the final hearing, it was adjudged that the deed of trust was without consideration, and was void, and it was cancelled as a cloud, and this appeal has been prosecuted to reverse that decree.
The action of the court below is defended upon the ground that the sale was void, because of certain alleged jurisdictional defects; and it was also contended that a right of redemption existed, under the act of 1915, above mentioned, at the time of the execution of the quitclaim deed, and the deed of trust.
Very interesting briefs are filed upon these questions, and it is apparent that there was, and is, a genuine and serious controversy over the validity of this original sale, and of the existence of any right of redemption under this act of 1915. We expressly refrain from deciding whether this act of 1915 applies to sales made prior to its enactment, and likewise whether the sale was void.
We need only to ascertain that there was a genuine controversy between the parties to conclude that a sufficient consideration existed to support a contract for its adjustment. The existence of the controversy is, itself, the consideration, and it is immaterial that the claim of one of the parties subsequently proves to have been with out valid foundation. Gardner v. Ward, 99 Ark. 588; S. H. Kress Co. v. Moscowitz, 105 Ark. 638.
These lots were worth $1,500, and were lost to appellees but for the quitclaim deed, which formed the consideration for the deed of trust, if appellants are correct in the contention, which they now earnestly make, that the sale for taxes was not void, and that the right of redemption had expired when the deed of trust was given.
It follows, therefore, that error was committed in adjudging this deed of trust to be void, and the decree to that effect is reversed, and the cause is remanded, with directions to the court below to enter a decree in accordance with this opinion. | [
113,
108,
-76,
-116,
-70,
-64,
42,
-120,
105,
48,
-89,
91,
-19,
-122,
8,
33,
-93,
61,
69,
120,
-59,
-93,
55,
34,
-110,
-45,
-39,
-35,
52,
93,
-76,
-41,
76,
56,
66,
-99,
70,
-62,
-51,
-40,
-58,
-125,
42,
109,
-7,
64,
52,
43,
50,
73,
117,
-114,
-21,
46,
53,
87,
73,
46,
-21,
61,
-63,
-88,
-102,
4,
95,
6,
33,
101,
-112,
-61,
72,
-54,
-104,
17,
-120,
-24,
114,
-74,
-46,
-44,
77,
25,
44,
32,
102,
0,
101,
-1,
-104,
24,
46,
-34,
45,
-90,
-47,
80,
18,
32,
-66,
-36,
92,
80,
101,
-2,
-26,
-59,
93,
104,
7,
-18,
-42,
-125,
15,
-4,
-119,
3,
-9,
3,
50,
112,
-49,
-94,
94,
103,
116,
27,
14,
-7
] |
Butler, J.
This is an appeal from the action of the trial court vacating’ a judgment of that court made and entered on the 15th day of September, 1930, which was appealed to this court and affirmed.
In the court below the appellant filed a motion to dismiss the petition on the ground that the subject-matter involved had been adjudicated, and the plea of res judicata was interposed in said motion. This motion was overruled, and issue was joined. The court, having heard the evidence adduced, vacated its former judgment, and the appellant here urges the same grounds for reversal as those contained in his motion to dismiss.
The judgment sought to be vacated has been before this court on appeal and here affirmed. The appellant invokes the rule that matters involved and litigated in a former suit, or which might have been litigated therein, are res judicatae, and cites a number of our cases in support of the rule. It is our opinion that the rule and the decisions have no application here, for the reason that this is a special statutory proceeding authorized by the first subdivision of § 6290 of Crawford & Moses’ Digest and prosecuted under § 1316 of the Digest, which section provides that, where grounds for new trial are discovered after the term at which the verdict was rendered, an application for vacating the judgment may be made .by petition filed with the clerk on which a summons shall issue as on other complaints requiring the adverse party to appear and answer. By that section it is also provided that the case shall be summarily decided by the court upon evidence, either in form of depositions or the testimony of witnesses examined in the court.
It was alleged, and the court found, that the plaintiff (appellee) had discovered new evidence material to the issue in the former suit, and that, if the evidence was true, it constituted a valid defense. The court thereupon granted the prayer of the petition and vacated and set aside the .judgment and set down the case for trial. Subsequently, the case was again tried, and the verdict of the jury and judgment of the court were adverse to the appellant.
There appears to have been sufficient testimony to justify the action of the court in vacating the judgment and to sustain the verdict of the jury in the subsequent trial. In the matter of vacating judgments on the ground of newly-discovered evidence, a wide discretion is given the trial court, and its judgment should not be disturbed unless it is manifest that there has been an arbitrary abuse of that discretion. The right to have a judgment vacated on the ground of newly-discovered evidence, or for any other of the grounds mentioned in § 6290, supra, is not affected by an appeal to this court or a reversal or affirmance. It is an independent action to be instituted and conducted as in ordinary actions at law, and is not affected by whatever might have been done with respect to the judgment sought to be vacated.
In the case of Foohs v. Bilby, 95 Ark. 302, 129 S. W. 1104, there had been a trial and judgment in the lower court, from which Bilby had appealed to this court, in which court the judgment of the trial court was affirmed. Afterwards, proceeding under the statute was instituted to vacate the judgment. It was there said: “It is next insisted by counsel for appellant that, Bilby having appealed from the judgment of the circuit court and the judgment having been affirmed, he was precluded from instituting proceedings to vacate it. This objection is not tenable. The appeal was merely a continuation of the suit below. An appeal does not have the effect of vacating the judgment of the court below. Even where a supersedeas is granted, an appeal does not have the effect of vacating a judgment, but only stays proceedings thereunder. Miller v. Nuckolls, 76 Ark. 485 [89 S. W. 88, 113 Am. St. Rep. 101, 6 Am. Cas. 513]. If supersedeas is granted, the judgment of the court below is suspended pending the appeal; and, if the cause is reversed, the rights of the parties stand as though, no action had ever taken place in the court below. Harrison v. Trader, 29 Ark. 85. On the other hand, if the judgment is affirmed, the rights of the parties will stand as if no appeal had been taken. Therefore we do not see how the rights of a party to have a judgment set aside for the grounds set out in § 4431 of Kirby’s Digest can be affected by an appeal taken from the judgment. The appeal and the proceedings to set aside the judgment for the grounds mentioned in § 4431, su-pra, are wholly separate and independent proceedings, and are intended to effectuate different purposes. Therefore it is difficult to perceive how the use of the one remedy will preclude the right to exercise the other. ’ ’
From the record before us, we are of the opinion that the action of the trial court in vacating the judgment was not an arbitrary exercise of his power, and, since on a new trial there was substantial evidence to warrant the verdict, the judgment will be affirmed. | [
-15,
-32,
-44,
46,
74,
96,
32,
-68,
64,
-125,
39,
83,
-19,
-61,
16,
105,
-46,
93,
81,
106,
-49,
-93,
70,
1,
-109,
-110,
-38,
85,
61,
79,
-26,
119,
76,
56,
98,
-43,
70,
-54,
-51,
124,
-118,
-91,
-72,
-52,
-7,
72,
48,
48,
80,
15,
113,
-2,
-29,
42,
27,
-57,
-24,
44,
-38,
61,
122,
-40,
-102,
-115,
127,
2,
-79,
37,
-98,
-29,
-40,
62,
-128,
48,
1,
-32,
114,
-74,
6,
116,
103,
-71,
40,
118,
102,
1,
117,
103,
-104,
-72,
6,
-18,
31,
-90,
-15,
116,
75,
41,
-106,
-67,
117,
16,
39,
118,
-20,
-107,
30,
-84,
11,
-53,
-42,
-69,
-81,
124,
-66,
-127,
-30,
-77,
48,
112,
-116,
-56,
92,
103,
51,
-101,
-52,
-100
] |
Humphreys, J.
Appellant was indicted, tried and convicted in the Miller Circuit Court of the crimes of burglary and larceny. He filed a motion for a new trial, which was overruled. The requisite steps were taken and this cause is here on appeal.
(1) The first assignment of error urged for reversal is that the verdict is clearly against the uncontradicted evidence. The substance of the evidence tending to establish the guilt of appellant is as follows: The latter part of September or first part of October, as it was getting dark one evening, a man fitting the description of appellant was seen to enter the home of P. M. Crouch in Texarkana, Arkansas, and remain within the house about one-half hour. Upon the return of Mrs. Gussie Crouch she discovered that her home had been burglarized, and along with other jewelry a ring had been stolen. The ring was. of the value of $15. Not long after the burglary appellant gave Mrs. Fannie Pratt the stolen ring and at the, time told her he had purchased it. Appellant told John: Strange, chief of police, that he found the ring. Before and after the burglary appellant delivered meat daily to the Crouch home and was acquainted with the surroundings. He had been convicted of a similar crime prior, to this time.
In the face of such a record as this, we can not concur in the opinion of learned counsel that the verdict is contrary to the nncontradicted evidence. This record reflects the opportunity and tendency on the part of appellant to commit such an offense as this; also the possession of a recently stolen ring; also conflicting statements as to how he acquired possession of it.
It is true that the verdict is contrary to the proof-introduced by appellant. He said he found the ring by a rock wall near the Crouch residence and denied burglarizing the Crouch home. Charles Williams, who had been convicted of many burglaries and larcenies, gave testimony that he entered the Crouch house and took the ring* and other missing jewelry; that in his hurry and fright he lost the ring at the place appellant claims to have found it. Williams confessed to many other crimes when am rested, but denied that he burglarized the Crouch home. Appellant and Williams were in jail together awaiting, trial and for a part of the time occupied the same cell.
There is ample evidence in the record to sustain, either the State’s or appellant’s theory. The case in-, volved a question of fact to be determined by the jury. The jury probably concluded that the defense of appellant was concocted between Williams and himself in the quiet hours of incarceration and regarded the testimony of appellant and Williams as unworthy of belief. The weight of the evidence is a question for the jury and not the court. This court will not invade the province of the jury to pass upon the weight of the evidence. Rhea v. State, 104 Ark. 162.
Another assignment of error for reversal is that the court excluded the evidence of A. W. Stevens tending td establish the good character of appellant. No objection was made or exceptions saved at the time to the court’s ruling in this particular. For this reason, the error, if any, can not be corrected on appeal. Birones v. State, 105 Ark. 82.
(2) Another assignment of error set up in the motion for new trial is that the court erred in overruling appellant’s motion for continuance. The motion for continuance was correct in form and stated that appellant could prove by G-. W. Citty that “about the time tbe Crouch house is alleged to have been broken into and after that time, defendant herein was working for him and it was his duty to carry meat for his butcher shop and deliver same to his customers, which necessitated that defendant get up early in the morning, and go about town before it was light, and which he did about said time and after said burglary is said to have been committed. ’ ’ The prosecuting attorney agreed that the motion might be read to the jury and admitted the truth of what the motion stated the testimony of Gr. W. Citty would be. The motion for continuance was properly denied by the court: Baker v. State, 58 Ark. 513.
.The trial court refused instruction No. 1, asked by appellant, which is as follows:
/‘The court instructs the jury that the burden is on the State to prove the defendant guilty as charged in the' indictment, and if the evidence fails to satisfy your minds beyond a reasonable doubt of the guilt of the defendant, then it is your duty to give him the benefit of such doubt and acquit him.
“If any reasonable view of the evidence is or can be adopted which admits of a reasonable doubt of the guilt of defendant, then it is your duty to adopt such view and. acquit him.”
(3) This instruction was fully covered by the instruction given by the court on its own motion and by giving instructions Nos. 2 and 4, asked by appellant. It is not error to refuse to give an instruction correctly reflecting the law as applicable to the particular case, if the. same subject-matter is covered by other instructions. Goss v. State, 74 Ark. 33; McWilliams v. State, 101 Ark. 569; Morris v. State, 103 Ark. 352.
(4) It is insisted that the trial court erred in refusing to give instruction No. 5, asked by appellant. The instruction refused is as follows:
‘ ‘ The jury are instructed that the presumption that the person in whose possession stolen property is found is the thief, is not one of law, and weak one of fact; it is not at all conducive, and of itself is not sufficient for a conviction.”
This instruction is erroneous because it attempts to advise the jury what inferences they may draw from a certain part of the evidence. Our Constitution forbids trial judge from instructing juries on matters of fact, Blankenship v. State, 55 Ark. 244; Wiley v. State, 92 Ark. 586.
(5) The court also refused to give the following instruction asked by appellant:
‘ ‘ The court instructs the jury that the law presumes in favor of innocence, and of a good motive rather than' a bad one, and the burden is not on defendant to show he had no criminal intent in keeping the ring after he found it, but it devolves upon the State to prove he had such criminal intent. ’ ’
The instruction is erroneous because its effect would be to divert the minds of the jury from the intent involved in entering the house and taking the ring, to the intent appellant had in keeping the ring. This instruction, if given, would have placed upon the State the burden of proving that appellant formed a criminal intent in his mind to keep the ring after he obtained possession, thereof. The State’s burden under the charge of burglary and larceny was to show the criminal intent of appellant at the time of entering the house and not thereafter.
No error appearing in the record, the judgment is-affirmed. | [
-79,
96,
-4,
-65,
26,
64,
10,
-68,
114,
-127,
-27,
-13,
-95,
-57,
64,
121,
-111,
127,
84,
97,
-42,
-105,
23,
65,
-46,
-13,
121,
-43,
-80,
75,
-10,
-41,
15,
32,
66,
81,
70,
-118,
-25,
92,
-114,
9,
-70,
116,
121,
80,
36,
43,
52,
15,
117,
-98,
-29,
42,
22,
91,
105,
44,
75,
63,
88,
81,
-102,
77,
-51,
20,
-79,
39,
-109,
5,
-6,
24,
-108,
49,
0,
-24,
115,
-124,
-126,
84,
79,
-101,
12,
96,
98,
2,
-51,
-17,
-88,
-127,
14,
46,
-123,
-89,
-72,
64,
73,
37,
-105,
-99,
118,
84,
6,
-14,
-3,
-43,
29,
108,
11,
-49,
-108,
-109,
13,
96,
-108,
-70,
-13,
37,
112,
112,
-50,
-30,
76,
3,
89,
-101,
-114,
-45
] |
Humphreys, J.
Appellee obtained a judgment for $165 against appellant in the circuit court of Sebastian County, Fort Smith District, for an alleged balance due on the purchase price of a weighing scale purchased by appellee from appellant on order. The scale was sold on the installment plan under written contract, the unpaid purchase' money being evidenced by a note. The contract and note were introduced in evidence. The contract contained the following paragraph:
“You may ship me one Columbia weighing scale, freight prepaid. It is sold to me with the understanding that I may return it to you with or without reason at any time within thirty days from date of arrival of the scale, freight collect, instead of paying the purchase price. Should I not ship it back to you by freight only, within thirty days from date of arrival, I will pay you the purchase price, one hundred and ninety-five dollars. Fifteen dollars per month in equal consecutive monthly installments, the first payable thirty days after date of arrival; the remaining installments on the same date of each month thereafter.”
Appellant failed to return the scale, and, when this suit was brought for the balance of the purchase money, he interposed the defense that the scale was mechanically defective and wholly worthless, relying upon an implied warranty in the sale and purchase of the scale that it was reasonably fit for the purpose for which it was intended.
Appellant offered to introduce testimony showing that the scale was worthless, and of no value, on account of mechanical defects therein, which was excluded by the court over his objection and exception. The objection and exception, however, was not preserved in his motion for a new trial, and therefore its admissibility cannot be determined by this court on appeal. Trumbull v. Martin, 137 Ark. 495, 208 S. W. 803; Blair Milling Company v. Jones, 181 Ark. 1145, 24 S. W. (2d) 319.
Only one ground was assigned by appellant in his motion for a new trial, which is as follows:
“The court erred in peremptorily instructing the jury to return a verdict in favor of the plaintiff.”
The note and contract, with evidence to the effect that appellant did not return the scale, constitutes the record in the case, and, upon the record as made, it was the duty of the trial court to peremptorily instruct a verdict against appellant.
No error appearing, the judgment is affirmed. | [
-106,
104,
-96,
93,
26,
96,
40,
-102,
67,
33,
55,
83,
-23,
-57,
80,
123,
-30,
89,
117,
105,
69,
-77,
35,
65,
-46,
-105,
-47,
-45,
-75,
107,
-28,
-42,
76,
33,
-54,
85,
-26,
-62,
-63,
-104,
-50,
32,
41,
-20,
-7,
2,
48,
-18,
16,
71,
53,
-122,
83,
47,
31,
75,
105,
44,
105,
33,
-40,
-39,
-102,
13,
109,
5,
16,
54,
-110,
7,
88,
30,
-128,
49,
8,
-24,
115,
-90,
-122,
84,
105,
-71,
8,
102,
39,
2,
12,
-49,
28,
-88,
39,
-2,
-97,
-89,
-112,
88,
27,
69,
-74,
-100,
126,
86,
13,
118,
-26,
29,
29,
108,
3,
-50,
-110,
-125,
-113,
4,
-102,
-89,
-21,
-109,
16,
113,
-49,
-94,
92,
71,
59,
-101,
-114,
-38
] |
Humphreys, J.
Appellee was convicted in the municipal court of Fort Smith for failing to pay an occupation tax provided by ordinance and appealed to the circuit court, where the cause was submitted to the court, sitting as a jury, upon the following agreed statement of facts:
“It is agreed that the defendant, W. H. Bruce, is conducting a plumbing business, and would, if not exempted by the facts and law hereinafter set up, be subject to pay a privilege tax under the ordinances of the city of Fort Smith.
“The defendant pleads as a defense that he, being a resident of the Fort Smith District of Sebastian County, has been granted a certificate by the county judge certifying that he is entitled to the privileges and exemptions provided by Crawford & Moses’ Digest, § 9842, which certificate is 'attached hereto and made a part of this statement of facts, and plaintiff admits the genuineness of said certificate, and the same is unrevoked.
“It is admitted that defendant is an ex-United States soldier of the World War, and has a certificate of disability showing him to be a disabled soldier, a copy of which is hereto attached and made a part of this statement.
“It is admitted that defendant is drawing compensation under the provisions of the laws of the United States relating to veterans of the World War in the sum of $50 per month, and is a married man with a wife and two children, and has no property or business except the plumbing business from which to provide a living for himself and family.
“The certificate of disability issued by the United States Veteran’s Bureau states, ‘That because of defendant’s disability, asthma bronchial, severe with emphysema, right, which was caused by military service, his rating of permanent partial 50 per cent, will be continued. ’
‘ ‘ The certificate of the county judge is as follows:
“To Whom It May Concern:
“The bearer of this permit, Wallace H. Bruce, Jr., is a regularly discharged member of the United States Marine Corps, and, under § 9842 of Crawford & Moses’ Digest of the laws of Arkansas, is entitled to engage in what is known as ‘hawking and peddling,’ as is prescribed by this section.
“Therefore, the said Wallace H. Bruce, Jr., is on this day given a permit to engage in any 'business not in violation of said section, without paying a license therefor.
“July 2, 1931.
(Signed) “S. A. Lynch,
‘ ‘ County Judge, Sebastian County, Arkansas. ’ ’
The circuit court found that appellee was not drawing a pension within the meaning of said section of the Digest, but was drawing compensation, and was exempt from the payment of the tax under § 9842 of Crawford & Moses’ Digest, and returned a judgment of acquittal, from which is this appeal.
The decisive question presented by this appeal is whether appellee is receiving a monthly pension of more than $8 within the meaning of § 9842 of Crawford & Moses’ Digest. That section exempts an ex-United States soldier, as well as certain others, from paying privilege or occupation taxes who do not draw a pension in excess of $8 per month. There is nothing in the context of the section indicating that the word “pension” was used in any other than its ordinary sense or meaning.
“Pension” is defined in Webster’s International Dictionary as “a stated allowance or stipend made in consideration of past services or of the-surrender of rights or emoluments to one retired from service; esp., a regular .stipend paid by a government to retired public officers, disabled soldiers,” etc.
“Pension” is defined in Black’s Law Dictionary as “a stated allowance out of the public treasury granted by the government to an individual or to his representatives for his valuable services to his country or in compensation for loss or damage sustained by him in the public service.”
The agreed statement of facts reflects that appellant is receiving $50 per month, or more than $8 per month, from the United States Government on account of disabilities caused by his military service; so, the amount received by him is a pension within the definitions quoted above, and in the sense the word “pension” was used in the statute. The trial court erred in ruling that the monthly stipend received by appellee was compensation and not a pension. The stipend was not founded in contract and cannot therefore be regarded as compensation, but was a gratuity or bounty allowed him on account of disabilities received in military service.
Appellee also insists that the certificate issued to him by the county judge of .Sebastian County conclusively shows that he is exempt from the payment of the license fee - imposed by the ordinance. The certificate of the county judge was made pursuant to the provisions of § 9842 of Crawford & Moses’ Digest, which states that the certificate shall “be sufficient proof of the indigency or disability, and- of the service of said soldier or sailor in the Confederate, or United States Army or Navy.” The certificate does not state the amount of pension the applicant draws, so could not be conclusive proof that he comes within the exemption.
On account of the error indicated, the judgment is reversed, and the cause is remanded for a new trial. | [
16,
-22,
-60,
94,
43,
-64,
2,
-116,
18,
-127,
39,
113,
-27,
70,
69,
107,
-31,
63,
117,
121,
-21,
-77,
50,
74,
34,
-77,
-85,
-41,
-80,
79,
-4,
-76,
93,
57,
-54,
-107,
36,
-62,
-81,
28,
78,
0,
11,
109,
89,
0,
52,
35,
-128,
15,
49,
-97,
-14,
58,
23,
67,
8,
60,
77,
-86,
-48,
-45,
-102,
13,
-17,
21,
33,
100,
-104,
67,
96,
44,
-104,
17,
76,
-88,
51,
-74,
-62,
116,
59,
-69,
5,
96,
98,
0,
-111,
-7,
40,
-24,
-113,
-66,
-99,
-92,
-69,
89,
91,
-81,
-98,
-99,
126,
-108,
14,
-6,
116,
37,
17,
108,
-121,
-98,
-106,
-79,
77,
-71,
-100,
3,
-17,
-121,
16,
112,
-57,
-26,
125,
79,
123,
-101,
-121,
-70
] |
McCulloch, C. J.
This is an action on a fire insurance policy where there was a total loss of the insured building and some of the insured contents and a partial loss of other property insured. The insurance policy was for $500 on gin house; $1,350 on machinery, such as gin stands, feeders, condensers, presses, elevator, etc., $300 on engine, boiler, smokestack, etc.; $75 on seed house, and $100 on cotton seed while contained in the seed house; making a total of $2,325.
There was a recovery below of the sum of $1,890.80, which included the full amount of insurance on the building, and the defendant insurance company has appealed. The company defended on the ground that there was a breach of warranty with respect to the statement of the assured in his application concerning the original cost of the personalty covered by the policy, and with respect to the statement of the assured to the effect that no other company had at any time declined to insure the property* or any part of it. Another defense presented is that proof o'f loss was not furnished within sixty days, as required by the terms of the policy. The issues were submitted to the jury on instructions, the correctness of which is not challenged on this appeal, but it is insisted that according to the undisputed evidence the issues should have been determined in favor of the defendant, and that a peremptory instruction should have been given to the jury.
The property covered by the policy was a gin outfit owned by the plaintiff, J. C. Payton, which was situated at Mansfield, Arkansas, and the policy was negotiated, written and delivered by Mr. W. R. Alexander, the local agent of the company. In the application for insurance there was a question and answer with reference to the building as follows:
‘ ‘ Q. What did they severally' cost when erected?
‘ ‘ A. Gin house, $800. ’ ’
There was another question and answer in the application with respect to the engine and boiler, as follows:
“Q. What did you pay for it?
“A. One thousand dollars.”
It is contended that according to the undisputed evidence these answers were untrue and constituted breaches of the warranty. It is not correct to say that the testimony is undisputed as to the cost of the building, for one of the witnesses testified that it cost $900. The evidence establishes the fact that neither the agent of the company, Mr. Alexander, nor Payton, the assured, understood that the question related to the original cost, but they thought that the inquiry was concerning the value of the articles at the time that the policy was written. Mr. Alexander was the agent at Mansfield and walked out to the gin to see the plaintiff about securing the insurance on the property. He testified that he discussed with Payton the question of value of the different items to be incorporated in the policy and made pencil memoranda of what was determined in the negotiations to be the values. It is undisputed that Payton stated to Alexander that the engine and boiler were second-hand articles which Payton had purchased and that as installed in the gin plant were then of the value of $1,000. The proof shows that the engine and boiler cost Payton less than that sum, but the jury were warranted in finding that the statement concerning the value of those articles properly installed in the gin was the amount stated in the application. After securing the data from which the application was to be prepared Alexander went back to his office and copied the amounts into the printed application and later presented the application to Payton, who signed it, and it was forwarded to the company.
(1) The evidence shows that Alexander alone was responsible for the mistake in inserting the present value of the articles into the blank for the answer concerning the actual cost. The undisputed evidence shows that Alexander knew that the engine and boiler had been bought second-hand by Payton and it was not claimed that they actually cost the amount inserted in the application. . Under those circumstances the agent of the company was responsible for the mistake, and his knowledge was the knowledge of the company, and the company is estopped to plead the incorrect statement in the application as a breach of warranty. People’s Fire Ins. Assn. of Arkansas v. Goyne, 79 Ark. 315.
Counsel for the defendant rely upon decisions of the Supreme Court of the United States holding in substance that an applicant for insurance can not plead estoppel, and thus escape responsibility for untrue statements of facts which he permits an agent of the insurance company to insert in the application by showing that the agent was responsible for the incorrect statement and was actually advised as to the true facts. The cases relied on were fully discussed by this court in the case cited above, and we declined to follow them and declared the law on that subject to be as follows (quoting from the syllabus): “An insurance company may be estopped by the conduct of its agent, acting within the apparent scope of his authority, from availing itself of a false answer to a material question or of any other breach of warranty or violation of the provisions of the application or policy, notwithstanding clauses in the application or policy provide that it shall not be bound by any such conduct of its agent.”
The rule thus announced has been followed by this court in numerous cases which are cited on the brief of plaintiff’s counsel. Those cases are absolutely decisive of the question now before us, and we are of the opinion that the evidence makes out a clear case of estoppel on the part of the insurance company to plead the breach of warranty caused by the conduct of its own agent.
(2-3) Another question in the application was this:
“Q. Has this, or any other, company or any other agent of this or any other company at any time declined to insure you on said property, or any part of it?
“A. No.”
The facts as disclosed by the testimony were that Payton applied to another agent for this insurance and that an application was made out by the agent and sent in to one of the general agents in Little Bock, but later Payton was informed by the local agent that he had no company writing gin insurance. He then applied to Mr. Alexander, stating to him what had occurred in the transaction with the other agent. In fact, Payton had previously declined to give the insurance to. Alexander on the ground that he was going to give it that year to the other agent, Mr. Hodges, but that when informed by Hodges that his company would not take gin insurance, be turned to Alexander, who was soliciting the business. The testimony of Alexander, as well as that of Payton himself, shows that it was understood between them that the application had not been declined within the meaning of the question propounded, and the answer was inserted in the application by Alexander himself with full knowledge of all that had occurred between Payton and the other agent. We do not think that the answer was an incorrect one within the meaning of the question propounded, which manifestly related to a refusal by some company or agent engaged in that kind of insurance business. It did not refer to a refusal by a company not engaged in that business. Moreover, the actual knowledge of the truth of the matter possessed by the agent was the knowledge of the company, and it comes within, the rule announced by this court in the Goyne case, supra.
(4-5) The contention of the plaintiff was that the failure to furnish proof of loss was waived by the company, and the facts concerning that branch of the case were as follows:
Alexander was what is ordinarily termed a recording agent, that is to say, an agent with authority to solicit insurance, write and deliver policies and collect premiums, and also with authority to notify the company when loss occurred. The next day after the fire occurred Payton and Alexander had a conversation concerning the matter, and Alexander agreed to notify the company, and stated that an adjuster would be sent to adjust the loss. Alexander sent in the notice to the company, and in two or three weeks the adjuster came and was introduced to Payton by Alexander. The details of ihe fire and other matters concerning the settlement were discussed between the adjuster and Payton, and the adjuster asked particularly about a mortgage on the property to the Fort Smith Cotton Oil Company (which company is plaintiff in this action) and Payton answered the inquiry in the affirmative. The adjuster then asked Payton how it would suit him for them to meet in Fort Smith the following Thursday and “settle the matter up.” Payton expressed satisfaction with that arrangement, and they parted with the understanding that they were to meet in Fort Smith on the day named, but before that day Payton was informed by Alexander that Mr. Wilson, the adjuster, had telephoned him that he could not be in Fort Smith on that day. Nothing further was heard from the adjuster, but a few weeks later Payton applied to Alexander for information concerning the settlement, and was assured by Alexander that the loss was known to be an honest one, and that payment would be made in due time. Alexander advised Payton not to employ a lawyer for the reason that there would be a settlement of the loss. Payton was working in the country at the time, and only came back to town about every two weeks. When he came back from his next trip to the country the time (sixty days) was about up for filing proof of loss, and when Payton made inquiry of Alexander about the matter he was again assured that settlement would be made with him in a short time. .Nothing further was done, and about a week or ten days after the expiration of the time allowed for furnishing proof of loss Payton met the adjuster in Fort Smith and was told by the adjuster that payment of his policy would be refused.
These facts constitute a waiver of the proof of loss. The testimony was sufficient to show prima facie authority on the part of the local agent to waive proof of loss, and no testimony was introduced showing a limitation upon that authority. Citizens Fire Ins. Co. v. Lord, 100 Ark. 212; Concordia Fire Ins. Co. v. Mitchell, 122 Ark. 357. In addition to that the course of conduct of the adjuster was such as to lead Payton to believe that settlement would be made without requiring proof of loss, and it was incumbent on the company, if it intended to insist upon that requirement, to give notice to Payton of that fact. The adjuster came to Mansfield to meet Payton as promised by the local agent, and after going over the transaction fully they agreed to meet in Port Smith to make a settlement, and that meeting was postponed indefinitely without any notice or without the slightest intimation to the plaintiff that he would be required to make out a proof of loss. On the contrary, he was assured by- the local agent that payment would be made in due course of time, and that he need not go to any expense in employing counsel. The facts presented on that issue constituted no defense to a suit on the policy, and the court was correct in refusing to direct a verdict in favor of defendant.
(6) The only other question raised is that the court erred in instructing the jury that if they found for the plaintiff to find in the full amount of the policy on the building. The instruction was in accordance with the Statute of this State, known as the Valued Policy Law. Kirby’s Digest, § 4375. The stipulation of the policy in conflict with the terms of the statute was void.
Judgment affirmed. | [
-16,
-2,
-8,
-83,
-120,
-32,
104,
90,
83,
-119,
103,
87,
-3,
-26,
21,
99,
-94,
89,
69,
107,
-74,
-93,
19,
34,
-50,
-5,
-77,
-59,
-99,
79,
-4,
-41,
12,
60,
-126,
-47,
-30,
-54,
-59,
-36,
-50,
13,
-72,
-20,
-35,
112,
48,
-39,
116,
75,
81,
-97,
-29,
42,
17,
-53,
9,
44,
-21,
-71,
-15,
-15,
-126,
13,
127,
20,
-95,
118,
-100,
-61,
-64,
14,
-112,
-75,
1,
-88,
123,
38,
-122,
116,
7,
-119,
-119,
102,
103,
40,
1,
-17,
-81,
-120,
55,
-114,
-113,
-90,
-78,
113,
59,
14,
-73,
-99,
112,
24,
-121,
124,
120,
20,
93,
108,
3,
-97,
-108,
-13,
-21,
100,
-99,
-121,
-18,
19,
54,
117,
-49,
-94,
76,
95,
127,
-101,
15,
-49
] |
Humphreys, J.
Appellee instituted action in re-plevin against appellant, W. L. Knight, in the circuit court of Hot Spring County to recover possession of a brown Jersey heifer, alleging that he was the rightful owner of the heifer and that appellant was wrongfully detaining her under a false claim of ownership.
Appellant filed an answer denying the material allegations of the complaint.
The 'cause was submitted upon the pleadings and testimony adduced by the respective parties and instructions of the court, which resulted in a verdict and judgment in favor of appellee, from which is this appeal.
During the progress of the trial, the court made T. C. White a party defendant after he appeared voluntarily and testified that he and his wife owned an undivided interest with W. L. Knight in the heifer, to which action neither appellant objected and excepted at the time.
The action of the court in making T. C. White a party is urged here as a ground for the reversal of the verdict and judgment. No proper exception having been saved to the action of the court at the time in making him a party, that question cannot be raised on appeal. It was too late to raise the question the first time in appellant’s motion for a new trial.
The only other question raised for a reversal of the verdict and judgment is that the court erred in admitting the testimony of witnesses, Benson Wheat and Porter Harper, relative to what was said and done in the presence of W. L. Knight and appellee in an effort to show which of the two owned the heifer in question. At the time appellee found and claimed the heifer, he was informed by W. L. Knight that he had purchased her from J. M. Greer and Mr.Mays over at Okolona. Appellee then went after Greer and Mays, who came .back with him for the purpose of identifying the yearling they let Knight have. Knight was present, and they identified a red yearling with white spots on its flanks and not the yearling in question as the one Knight got from them. The objection made to the introduction of the testimony was that it was hearsay. We do not think so. The parties had agreed, without assistance from either, for G-reer and Mays to select from the yearling’s in the pasture the one they had let Knight have. They selected a different yearling from the one in controversy as the one they had let Knight have, and this circumstance tended to throw light on the issue being-litigated as to the ownership of the heifer. The testimony was properly admitted.
No error appearing, the judgment is affirmed. | [
113,
108,
-35,
13,
8,
96,
42,
-98,
66,
-93,
119,
-45,
-19,
-57,
20,
121,
-21,
45,
85,
107,
-57,
-77,
87,
-32,
-80,
-46,
81,
93,
-79,
79,
-28,
-10,
12,
48,
-54,
21,
70,
-118,
-51,
28,
-114,
-124,
27,
-24,
121,
-48,
56,
121,
52,
67,
33,
-114,
-21,
38,
60,
67,
105,
44,
107,
45,
-48,
120,
-118,
5,
-67,
6,
51,
54,
-72,
-95,
-40,
110,
-104,
49,
0,
-55,
115,
-74,
-118,
116,
9,
-103,
8,
34,
102,
1,
77,
-121,
40,
-72,
46,
63,
-123,
-90,
-48,
8,
75,
97,
-74,
29,
114,
-48,
7,
-4,
-19,
-52,
28,
104,
3,
-50,
-106,
-73,
7,
36,
-112,
19,
-29,
-75,
20,
113,
-51,
-30,
93,
71,
48,
-101,
-114,
-106
] |
Butler, J.
Gr. W. Stroud, the appellant, was the owner of a tract of land, a part of which he undertook to subdue and cultivate. In doing this he went beyond his line, cleared and inclosed a small parcel of land beyond his true boundary which he occupied under a claim of ownership for a period of approximately twenty years. At about the expiration of this period of time the appel-lee, Snow, purchased a tract of land adjoining that of the appellant on which the appellant’s fence had been built and the lands aforesaid inclosed and held.
On the trial of the case in the court below, the appel-lee and his witnesses testified that, after the purchase by appellee, he notified the appellant that his fence was over the property line, and after some discussion the appellant agreed that when the line was run by the surveyor, he would put his fence back on the true line, that the line was run by the surveyor, and the appellant was present at the time and then and there agreed to carry out his former promise. This was disputed by the appellant, who testified that he had never made any such agreement, but that the appellee entered on the land during’ the night and constructed a fence across the property, and that he thereupon ¡brought this action, which was a suit for forcible entry.
Over the objection of the appellant, the court gave instruction No. 1 as follows: “Your verdict will be for the plaintiff for the title and possession of the property in controversy, and assess his damages, if you find that he has been damaged, for such an amount as you believe from the evidence to be a fair and reasonable rent for the land during the time the defendant has had same in his possession; unless you further find from the evidence that there was a controversy between the plaintiff and the defendant as to where the line between them should properly be; and then, unless you further believe from the evidence that an agreement was entered into between them that the line as surveyed by the county surveyor should be recognized as a proper line and a fence constructed in accordance therewith, in which event your verdict should be for the defendant for the title and possession of the property in controversy.”
To the giving of this instruction, timely exceptions were saved, and it is now urged that the instruction was erroneous, and that the court should have given instructions (a) and (b) requested by appellant.
Instruction (a) was for a directed verdict in favor of the plaintiff for possession of the land and $120 damages. Instruction (b) is as follows: “You are instructed that if you find from the evidence that the plaintiff, Gf. W. Stroud held the land in question in open, notorious and adverse possession for seven consecutive years, then you will find for the plaintiff and assess his damages for such sums as you find to be fair, reasonable rent for said land during the time that the defendant has had same in possession.”
The court refused these instructions, to which ruling timely objections were made and exceptions saved. The jury found for the defendant and settled the disputed question of fact against the appellant, so that we must treat the agreement as established. This presents the single question, is the agreement sufficient to divest the title to the land in controversy acquired by lapse of time and the adverse possession of the appellant beyond the statutory period? The general rule is stated in 2 C. J., § 559, p. 256, as follows: “A title which has ripened by adverse possession cannot be divested by parol abandonment or relinquishment, but must be transferred by deed.” This rule is recognized by this court in Hudson v. Stillwell, 80 Ark. 575-578, 98 S. W. 356, where we said: “If the occupancy was adverse for the statutory period, it operated as a complete investiture of title, and a subsequent executory agreement to readjust the boundary lines or any other act done in recognition of the validity of plaintiff’s claim to the land would not remove the statute bar and reinvest the title.” To the same effect are the decisions in Parham v. Dedman, 66 Ark. 26, 48 S. W. 673; Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 444; O’Neal v. Ross, 100 Ark. 560, 140 S. W. 743; Hutt v. Smith, 118 Ark. 10, 175 S. W. 399; Blackburn v. Coffee, 142 Ark. 430, 218 S. W. 836; Dermott v. Stinson, 144 Ark. 208, 222 S. W. 54, cited by the appellee.
In tbe recent case of Haskins v. Talley, decided by tbe Supreme Court of New Mexico, November 17, 1923, and reported in 29 N. M. 173, 220 Pac., at page 1007, our cases are reviewed, and tbe doctrine therein announced is approved as tbe general rule. See also Lusk v. Yankton, 40 S. D. 498, 168 N. W. 375.
Tbe agreement under consideration in Hudson v. Stilwell, 80 Ark. 575, 98 S. W. 356, was a verbal one, and the reason for tbe rule announced in that case, which we have quoted, was that tbe agreement was such a one as would affect an interest in lands and was within tbe inhibition of tbe statute of frauds. Parham v. Dedman, 66 Ark. 26, 48 S. W. 673. Tbe words in that rule, “or any other act done, etc,” refer to executory agreements.
In tbe instant case there was no testimony as to anything except an executory agreement. There was no possession of the land in dispute surrendered by appellant or taken upon that surrender by appellee. Therefore, instruction No. 1 given by the court and heretofore set out was not only contrary to the rule announced in the cases cited, but was also not in accord with the rule announced in Taylor v. Rudy, 99 Ark. 128, 137. S. W. 574, cited in Buchanan v. Roddy, 171 Ark. 855, 286 S. W. 1020, as follows: “Where there in uncertainty as to the boundary, or the owners of adjoining lands are in dis-ute as to the dividing line, the parol agreement of such owners as to the boundary establishes the line, and, when followed by possession with reference thereto, is conclusive on them”; and in Cox v. Daugherty, 75 Ark. 395, 36 S. W. 184; “Persons owning adjacent lands may, by agreement, establish the boundaries between their lands, regardless of the lines of the Government survey. ’ ’
These cases are where there were agreements which had been executed and possession acquired under them which brought them without the inhibition of the statute of frauds, and there is no. conflict in the principles announced in those cases with that announced in Hudson v. Stilwell, supra, and the other cases cited.
The judgment of the court below is reversed, “and the cause remanded for further proceedings according to law and not inconsistent with this opinion. | [
-16,
124,
-104,
-114,
24,
96,
40,
-120,
97,
-119,
119,
-37,
111,
-62,
0,
35,
-9,
121,
81,
122,
-44,
-94,
103,
3,
-46,
-45,
-117,
85,
-77,
76,
-58,
87,
12,
32,
-54,
85,
-26,
-128,
-19,
-40,
-114,
-91,
-117,
104,
-39,
80,
48,
123,
84,
78,
49,
-113,
-77,
46,
57,
-21,
73,
44,
-53,
41,
80,
120,
-82,
5,
63,
3,
-80,
103,
-68,
39,
-2,
126,
-112,
113,
4,
-24,
115,
-74,
-110,
116,
7,
25,
8,
34,
102,
32,
105,
-17,
-18,
-39,
46,
120,
-115,
-90,
81,
88,
67,
1,
-67,
-99,
121,
48,
38,
126,
-27,
84,
30,
104,
7,
-125,
-108,
-109,
13,
48,
-102,
-121,
-21,
-91,
49,
112,
-49,
-22,
93,
99,
51,
-101,
-113,
-39
] |
McHaNey, J.
Appellee, an urban special school district, of Paragould, Arkansas, brought this action against appellant, county treasurer of G-reene County, in which the city of Paragould is located, to enjoin him from paying out on bond issues of the district, both maturities and interest, that part of the 18-mill school tax voted by the electors of the district, under Amendment No. 11 to the Constitution, for general school purposes, in the year 1931, payable in 1932. A 6-mill tax was voted for the building or bond payment fund and 12 mills for general school purposes. The bonds were all issued prior to the passage of act 169, Acts of 1931, and totaled approximately $400,000 now outstanding. The complaint alleged that “said bond issues (were) secured by various pieces of real estate belonging to said district, and, in addition, by an attempted pledge on the part of the district of all of the income of the district for the purpose of paying off and retiring said bonded indebtedness, together with the interest thereon.” It was further alleged that the collector of the county had collected school taxes in the district, so voted, as above stated, in the year 1932 for the tax of 1931, in the sum of $33,061.86, and that additional revenues to accrue to the district from the State for the school year 1932.-1933 are estimated at $7,518.64, or a total revenue of $40,580.50, one-third of said sum of $33,061.86, or the sum of $11,020.62 being voted by the electors of the district and set aside for the retirement of bonds and interest, and the remainder being available for general school purposes; that during the school year 1932-1933 bond maturities and interest will amount to $40,567.50, just $13 less than the total gross revenue of the district from all sources; that the whole of the sum voted by the electors for bond retirement had been paid out by appellant for such purpose, and that, unless restrained, he would pay out the remainder of the funds now in his hands, $15,605.75, thereby using all the 18-mill tax so voted and all other available revenue, so that no schools could be conducted in said district.
To this complaint a demurrer was interposed by appellant, which was'overruled by the court, and, on his declining to plead further, he was perpetually enjoined in accordance with the prayer of the complaint.
The issue to be determined by this court on this appeal is succinctly stated by counsel for appellee as follows : “Whether or not the directors of an urban special school district under the law as it stood at the time of the issue of the said bonds had authority of law to make, without submission of the question to the electors of the district, a pledge of all the proceeds of the 18-mill tax for the sole purpose of paying bonds and interest when future levies thereof were not and could not be within the control of the school board (or of the Legislature itself, for that matter) but depended for their existence on the favorable annual vote of the electors of the district. ’ ’
Only the 12-mill tax voted by the electors is involved. Appellant claims the right, by virtue of the pledge of all the income of the district for the payment of bonds, made by the directors of appellee district when the bonds were issued, to pay out the proceeds of said 12-mill tax to the retirement of bond maturities and interest, thereby closing the schools. Whereas appellee contends that the directors had no power to pledge revenue or income of the district, which was uncertain and contingent on a vote of the electors of the district annually. It appears to be conceded by appellee (a point we do not decide) that all revenue, save and except the amount voted annually by the electors for general school purposes, including the State tax of 3 mills, the tobacco and severance taxes and the amount voted for bond purposes, is subject to the payment of bonds and interest.
The framers of the Constitution of 1874, recognizing the great importance of educational advantages for all the children of the State through a system of free public schools, imposed on the State the duty of establishing and maintaining such schools in the following eloquent language in § 1, article 14: “Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction. ’ ’
The same Constitution by § 3, of article 14, provided for the levy of a tax for such purpose as follows: “The General Assembly shall provide by general laws for the support of common schools by taxes, 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 twenty-one 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 five mills on the dollar in any one year for school purposes. Provided, further, that no such tax shall be appropriated to any other purpose nor to any other district than that for which it was levied.”
By amendments adopted in 1907 and 1917, the maximum rate that might be voted was increased to 7 and 12 mills respectively, and by Amendment No. 11, adopted in 1927, it was provided as follows: 1 ‘ The General Assembly shall provide by the general laws for the support of common schools by taxes which shall never exceed in any one year three mills on the dollar on the taxable property in 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 twenty-one years. Provided, that the General Assembly may, by general law, authorize school districts to levy 'by a vote of the qualified electors of such districts a tax not to, exceed 18 mills on the dollar in any one year for the maintenance of schools, the erection and equipment of school buildings and the retirement of existing indebtedness for buildings. Provided, further, that no such tax shall be appropriated for any other purpose nor to any- other district than that for which it is levied.”
By act 63 of 1927, p. 177, enacted pursuant to Amendment No. 11, it is provided: “That the qualified electors of the school districts at any annual school election may, in accordance with election procedure provided for by law,- levy any rate of school tax they may desire. Provided that no rate voted shall exceed 18 mills on the dollar.” It will be noticed that the act is not so explicit as the amendment itself, in that it fails to designate the purpose for which the electors may vote the tax up to 18 mills. Three purposes are named in the amendment (1) “for the maintenance of schools”; (2) for “the erection and equipment of school buildings”; and (3) for “the retirement of existing indebtedness for buildings.” And it is then provided “that no such tax shall be appropriated for any other purpose nor to any other district than that for which it is levied.” This appears to be very simple language, unambiguous, and not difficult of comprehension. The electors of any school district may vote a tax'at any rate they wish for any or all said purposes, provided the tax voted for all does not exceed 18 mills. For instance, they might vote 6 mills for bond and 12 mills for school purposes, as they did in this case, and, when so levied and collected, neither sum could “be appropriated for any other purpose # * * than that for which it is levied.” In other words, the 12 mills voted for school purposes could not lawfully be'appropriated for payment of bonds or the interest thereon, nor could the 6 mills voted for bond purposes be appropriated for schools. Such is the plain language of the amendment. No other construction can be given, and any other in the present ease would probably work disaster to both parties. For, since the voting of any tax for any purpose is optional with the district’s electors, the taking of the 12 mills voted for general school purposes to pay bonds would close the schools and keep them closed for many years, it would seem reasonably certain the electors would not vote a tax on themselves and have no schools. The bondholders would lose the 6-mill tax now being received, a substantial loss to them, and the district would be without a free public school for years to come, which would be disastrous to it and its people.
Appellant contends that § 8977, Crawford & Moses’ Digest, and the decisions of this court in Schmutz v. Special School District of Little Rock, 78 Ark. 119, 95 S. W. 438, and Am. Ex. Trust Co. v. Trumann Special School Dist., 183 Ark. 1041, 40 S. W. (2d) 770, support his contention that all the revenue may be pledged. Said section provides: “To borrow money and mortgage the real property of the district as security therefor under such conditions and regulations as to amount, time and manner of payment as the board of directors of said school district shall prescribe.” This section authorizes the directors to mortgage the real property of the district to secure the money borrowed, and permits them to fix the time and manner of payment. It does not authorize them in specific terms to pledge any revenue, and it could not authorize them to pledge any part of the 18-mill tax voted for any other purpose. Neither the Schmutz nor the Trumann Special School District case, supra, discussed the exact question now under consideration. In the latter case, after quoting from the former, it is said: “The board of directors could not have limited the liability of the district to the payment of the bonds out of the revenues set aside for ‘the building fund,’ if one had been provided, since they were and are a charge against the whole revenues of the district.”
What the court meant by a “charge against the whole revenues of the district” was the whole of its certain revenue, or revenue from fixed sources, such as the 3-mill State tax, poll tax, tobacco tax, severance tax, snob bond fnnd tax as might be, if and when voted, bnt not that part of the optional tax voted for school purposes. We think these and other cases cited by appellant are not in point, for the reason they do not have the same background of fact.
Nor is this repudiation as contended by appellant. It is merely postponement of payment of an obligation because of lack of available funds legally bound therefor. It is quite probable, although.the complaint fails to show the date of the bond issues outstanding, that, when many of said bonds were issued, the maximum amount permitted to be voted was 5 mills or 7 mills; if so, certainly when the electors tax themselves 6 mills for such purpose at this time, the bondholders are getting all they could in equity and good conscience demand.
Affirmed. | [
85,
-19,
-76,
108,
-86,
64,
122,
-98,
-45,
-93,
-91,
-45,
-23,
38,
20,
101,
-13,
123,
68,
88,
-91,
-77,
115,
74,
-101,
-5,
-55,
-43,
55,
-51,
-28,
-41,
104,
124,
-54,
-43,
-114,
102,
-51,
92,
14,
9,
-81,
76,
-39,
-32,
52,
-27,
50,
11,
97,
-82,
-21,
40,
-108,
-21,
77,
46,
-39,
41,
-63,
-29,
48,
-123,
127,
7,
-111,
100,
-104,
65,
-64,
14,
-104,
55,
-124,
-8,
122,
-94,
-58,
-42,
5,
-103,
40,
100,
-90,
1,
-91,
-9,
-76,
-120,
62,
-41,
13,
-92,
-58,
25,
98,
-113,
-66,
-107,
123,
-48,
-121,
126,
-95,
-123,
30,
124,
2,
-50,
-44,
51,
-124,
97,
-98,
11,
-1,
46,
48,
81,
-52,
-122,
94,
-57,
50,
-101,
-57,
-39
] |
Kirby; J.
Appellant was convicted in the Polk Circuit Court upon an indictment, charging him with obtaining the signature of one T. M. Dover by certain false pretenses.
The sufficiency of the indictment was challenged by general demurrer, in which it was also alleged that it was bad for duplicity.
The indictment is long and involved, and is by no means a model of good pleading, but it alleges in apt terms that defendant “unlawfully, falsely, fraudulently, feloniously and designedly, with the intention then and there to cheat and defraud, did falsely represent and pretend to him, the said T. M. Dover, that one H. G. Gray was justly indebted to the said J. M. Fox, etc., and the said J. M. Fox did then and there falsely, fraudulently, feloniously, and designedly, with intention then and there to cheat and defraud, * * * represent and pretend to him, the said T. M. Dover, that the said mortgage and note aforesaid represented and was security for a good and valid and bona fide indebtedness, • * * * and by means of which said false and fraudulent representations and pretenses as aforesaid the said J. M. Fox then and there induced the said T. M. Dover to become surety for the said J. M. Fox for the sum of one hundred dollars, * * * and the said T. M. Dover, then and there relying upon the representations and pretenses as aforesaid, did then and there become surety for the said J. M. Fox on a certain promissory note for the sum of one hundred dollars, * * * the said representations and pretenses as aforesaid were false and were known to be false by the said J. M. Fox at the time they were made, and by means of which said false and fraudulent representations and pretenses as aforesaid he, the said J. M. Fox, did then and there unlawfully, falsely, fraudulently, feloniously and designedly, with intention then and there to cheat and to defraud, * * * did obtain from him, the said T. M. Dover, his signature and .indorsement as surety * * *.”
We think it is sufficiently alleged that the pretenses made were false and known to be so by appellant, and were made with the fraudulent intent to deceive the injured party, Dover, and secure his signature and indorsement to the note, upon which the money was procured from the bank, and which said Dover afterwards had to pay, and that he was induced thereby to make such signature and indorsement.
It is true that there are many other allegations in the indictment relative to procuring the money from Dover and the Bank of Hatfield, but we do not think the indictment is open to the charge of duplicity, and any other allegations not necessary' to the charge of obtaining the signature of Dover by the false pretenses alleged were properly treated as surplusage by the lower court in overruling the demurrer.
The evidence tends to show that one Bud Gray, desiring to secure the payment of his indebtedness to T. M. Dover, and to secure a certain and further sum of money from him, executed to him the following note:
“$300.00. Hatfield, Ark., June 15,1910.
“Ninety days after date, I promise to pay to J. M. Fox, or order, at Hatfield, Arkansas, three hundred ($300.00) dollars for value received, negotiable and payable without defalcation or discount, with interest from date at the rate of 10 per cent, per annum; this being the mortgage note from H. G. Gray to J. M. Fox conveying the following described property towit: one bay horse mule ten years old, fifteen hands high, named Pete, one bay mare mule nine years old, fifteen hands high, named Kit, one new three-inch Springfield wagon, on which property a vendor’s lien is retained to secure payment of this note. (Signed) “H. G. Gray.”
Due 15th September.
No.........................................P. O. Hatfield.
Indorsed on back:
June 18-10.
“I hereby authorize T. M. Dover as my agent to foreclose the accompanying mortgage to this note at maturity.
(Signed) “J.M.Fox.”
—securing same by a mortgage upon certain property described in the note, which was duly executed by the said Gray upon the same date that the said Dover went first to the Bank of Hat-» field, and presented the mortgage and note, and asked if he could procure a loan upon it, telling the cashier at the time about the value of the property. The cashier suggested that he go and see Dover and get his indorsement on the note, and he would lend him the hundred dollars he desired. He then went to Dover to procure his signature to the note, and the transaction was stated by Dover as follows:
“I am acquainted with H. G. Gray, commonly called Bud Gray, and J. M. Fox. About June 15,1910,1 lived in Hatfield, and was engaged in the mercantile business. In June I signed a note as security with J. M. Fox, as principal, to the Bank of Hatfield for $100, as follows:
“‘$100.00. Hatfield, Ark. June 18, 1910.
“ ‘Ninety days after date, for value recived, I, we, or either of us, promise to pay to the order of the Bank of Hatfield, Hatfield, Ark., one hundred dollars, negotiable and payable, without defalcation at the Bank of Hatfield, Hatfield, Arkansas, with interest at the rate of ten per cent, per annum from maturity until paid.
“‘The drawers and indorsers severally waive presentment for payment, protest and notice of protest and nonpayment of this note.
“ ‘Due 8-18-10 No. 12. ' J. M. Fox.
“Post Office Hatfield.”
Indorsed on back: T. M. Dover.
“10-17-10. Paid by T. M. Dover, $100.85.
“E. R. Bryant, Cashier.”
“He came to my place on the 18th of June with the note and mortgage, just he and I together, and he showed me the note and mortgage, and said he wanted to turn them over to me to secure me to go on his note at the Bank of Hatfield for $100. I asked him if Bud Gray owed him $300, and he said he did. He went on and told me what he owed it for, but I don’t remember what that was. I first doubted him owing it at the start until he told me what he owed it for, and then I finally decided that it would be good to secure the $100, if that was true what he told me. I told him if he owed him that, and it was correct, that would be enough to secure me to go on his note for one hundred dollars. He turned the note right over there in the warehouse, and wrote on the back of it (referring to the indorse ment on the back of the note due him by H. G. Gray, dated Hatfield, Arkansas, June 15, 1910). This is his writing on the hack of the note which he wrote on the 18th day of June.
“Q. Now this was done after you told him you would sign the note with him if he would make you his agent and turn over the note to you? A. Yes, sir. This is the mortgage that accompanied the note for three hundred dollars. The purpose of making me his agent and turning over the note to me was so I could foreclose the note at maturity and make my money out of the property in question, in case he didn’t pay the note at the bank. He didn’t pay the note, and I had to pay it. I notified him the note was due, and I got no answer from him, and in a few days he left the country. After he left, I kept on his trail all through Oklahoma. When I found out that he had left the State, I notified Gray that his mortgage was due, and to come down and make some arrangement, or I would have to foreclose it, and he came down to Hatfield, and asked if it had not been paid, and I told him it had not.
“The mortgage is the usual form of chattel mortgage. It recites the consideration due of three hundred dollars, and for other money, goods, wares, etc., furnished by the party of the second'part to the party of the first part, up to the foreclosure of the instrument signed on the 15th day of June, by H. G. Gray and acknowledged by him before W. J. Davis, a justice of the peace.
“I called on Gray for the property, and he refused to give it up, and I replevied it under the mortgage. He took a change of venue to Mena, and I found out that it was not his property and withdrew the suit. I found out it belonged to his wife. I didn’t pursue the case any further, but commenced to try to catch Fox in Oklahoma. Fox gave H. G. Gray a check or half the money he realized on the note I indorsed on the same day I signed it. We didn’t have a trial on the replevin suit for this property. I found out it was not his property, and withdrew the suit. We took Bud Gray’s affidavit, which was filed in the court. I don’t remember whether Fox told me that part of what Gray owed him for was for $135 worth of timber or not. He told me $300 worth of stuff that Gray owed him, but I don’t remember what he told me the $300 worth of stuff was. I don’t know how much Gray owed Fox. All If know was what Fox told me when he brought that note and mortgage. I thought all the time it was Bud Gray’s team, and never heard it called any one else’s until the suit came up.”
Bud Gray testified as follows: “I remember executing the note and mortgage for $300 to J. M. Fox in June of last year, about the 15th of June, I believe, that I let him have it. This matter was talked over at Hatfield. I was not due Fox $300 when I signed the note and mortgage. I think I was due him about $30. I knew at the time I executed this mortgage and note I was only due him that amount. I don’t think the matter was discussed between me and him as to how much I owed him. I sold Fox some timber, and was to get $125. He paid me about all of it in money, groceries and goods. It might have been as much as $177.75 that he paid me. He got part of the timber, and sold the remainder to Spencer. Spencer didn’t get this lumber, and there was some that he didn’t cut, and I agreed to pay Fox back. We never had any permanent settlement, and I owed him at the time the mortgage was made, about $28 or $30.”
The defendant testified: “Gray came to my mill and wanted me to go to Mena and help him raise some money to buy some cattle, was about the first part of the transaction. I told him I was busy, and could not go. He came back two or three days after that, and wanted me to go to Mena with him and help raise some money. He said about fifty or seventy-five dollars would do him, and that he would give me a mortgage on his mules and wagon to secure me for that much. I told him if he would give me a mortgage on his mules and wagon, and make me a note sufficient to cover what he already owed me and the amount he wanted to borrow, I would make an effort to get it for him. We didn’t come to Mena. I told him we would go over to Hatfield. We went over to Hatfield, and he executed the note and mortgage before Squire Davis. I went to see Mr. Dover, and told him what I wanted, and asked him if this security would be good for that amount. He said he didn’t believe the mules were worth $300, but said the mules and wagon were. I then asked him if he would be willing to go on my note for $100 and take the note and mortgage as security. A note was then executed by me and Dover on the 18th day of June. Bud Gray owed me at the time this note and mortgage was made $177.75. I bought timber to the amount of $125.00 from him. He also got groceries and other goods at the commissary. The account was $177.75. I sold the timber to Spencer Lumber Company, but Spencer didn’t get the timber, and after they didn’t I had a conversation with Bud Gray, and asked him why he had stopped Spencer Lumber Company from cutting the timber. He said he was on a deal to sell the place, and they would not buy the place if the timber was cut off, and he believed it would damage the place more than he was getting out of it to have it cut, and he decided, if it was agreeable to me, to pay me back what I had paid on the timber, and I told him if he did that it would be all right. This was about the 10th of June, and the mortgage was executed about ten days later. This was part of the consideration for the note and mortgage, and the balance was that I was to furnish him more commissaries and get the money at the bank, with the understanding that his account would not exceed $300, including the money which I got at the bank for him. I just carried the note and mortgage to Dover and asked him if he thought it was good security for a loan of $100, and after he looked it over he said it was. I have had lots of business dealings with Dover, more than a thousand dollars a year, during the two years previous, and have owed him as much as a thousand dollars at one time. I did not tell Dover Bud Gray owed me $300.- I told him Bud Gray owed me for timber and a lot of other goods I had furnished him.”
There was other testimony introduced as to the defendants going to Oklahoma; his arrest there for the alleged offense and refusal to return, and his second arrest and return to the State. Also a good deal of testimony in explanation of his actions after the payment of the indorsed note by Dover, which might have tended to show that he had no interest in the collection of the $300 note, beyond the amount for which it was pledged as collateral.
It is insisted that the verdict is not sustained by the evidence, and that the court should have given the peremptory instruction for appellant, and we have concluded the contention is correct.
It has already been held by our court that it is not sufficient to constitute an offense within the meaning of the statute to obtain goods or things of value with the intent to defraud, but that it must be accomplished by a false pretense; and, although the pretense used was believed by the person to be false, it will not be sufficient to constitute the offense, if it turns out in fact not to be so. State v. Asher, 50 Ark. 430.
So here, by the terms of said section 1689, Kirby’s Digest, with the violation of which appellant is charged, the pretense or writing designedly used to obtain the signature to the instrument must be false. The false pretense charged herein is Fox’s representation that the $300 note of Gray, payable to his order, secured by the mortgage upon the personal property, represented a bona fide indebtedness. Unless such representation was false, it furnishes no foundation for a prosecution against Fox. The testimony shows that Gray voluntarily executed the note sued on, as presented to Dover for security, and the mortgage accompanying it. That he did not, at any time before payment thereof was demanded of him by Dover, after he had been required to pay the $100 note he indorsed for Fox to the bank upon the faith of the security thereof, contend that it did not represent a valid debt, and after said demand only contended that he did not owe more than $25 or $30 at the time of its execution. Fox stated that Gray was indebted to him at the time the same was executed for $177.75, on account for groceries, and for a balance on a hundred and twenty-five "dollar timber claim; and that he agreed to let him have fifty dollars more in order to procure Gray’s note and security for the amount already owing him, and the money and supplies thereafter to be furnished, up to the amount of the note taken, $300.
There was no testimony tending to show that Fox knew, at the time he procured the signature and indorsement of Dover to the $100 note negotiated at the bank, that the property mortgaged by Gray to secure the $300 note was not owned by him, if such is the fact, or that he made any representation to Dover that the property included in the mortgage belonged to the mortgagor, nor is he charged with having made such representation.
The note, if it be regarded as accommodation paper merely, was, by its terms, negotiable, and, having been delivered before maturity to Dover, as collateral security for his indorsement of the $100 note, it was- a valid obligation, binding upon the maker, and constituted Dover a bona fide holder thereof, and entitled him to the protection of an indorsee. Brown v. Callaway, 41 Ark. 418; Winship v. Merchants Bank, 42 Ark. 22.
“The bona fide holder for value of accommodation paper, taken in the regular course of business, may enforce it against the maker, although he knew when he received it that it was accommodation paper.” Evans v. Speer Hardware Co., 65 Ark. 204. See, also, Exchange National Bank v. Coe, 94 Ark. 387; Daniel on Negotiable Instruments, § 793a, vol. 1.
It follows that, since the $300 note of Gray was and is as binding and valid in the hands of Dover against its maker as if it had in fact represented a bona fide indebtedness for that amount, it could not constitute a false pretense within the meaning of the statute, the representation made being in effect true; and no offense was committed by the representation made and securing the signature of Dover to the $100 note on account of it.
Dover got the security he thought he was getting, so far as the representation made by appellant at the time of securing his signature that the $300 note represented a bona fide indebtedness was concerned; and, while the evidence indicates that the security has proved worthless on account of Gray not being the owner of the property he mortgaged to secure the $300 note, it was not brought about by any false representations alleged to have been made in the securing of the signature.
The judgment ' rsed, and the cause dismissed. | [
48,
122,
104,
-65,
10,
32,
40,
-70,
-13,
97,
-9,
115,
-3,
70,
4,
63,
-32,
109,
-12,
120,
-11,
-77,
39,
75,
-46,
-109,
65,
-11,
49,
77,
-11,
-43,
77,
52,
-30,
93,
70,
-102,
-27,
26,
78,
-95,
43,
-32,
-37,
-128,
36,
19,
5,
77,
113,
-82,
-5,
42,
49,
75,
73,
46,
127,
-71,
-64,
-127,
-98,
-123,
-7,
22,
-77,
4,
-103,
75,
-40,
44,
-112,
-79,
1,
-23,
115,
-106,
2,
-42,
111,
27,
9,
98,
98,
32,
-43,
-87,
-84,
-40,
63,
-2,
-99,
-89,
-16,
72,
11,
44,
-65,
-99,
118,
16,
6,
-64,
125,
-44,
17,
104,
2,
-113,
-108,
-109,
29,
116,
-36,
19,
-41,
55,
17,
80,
-57,
-96,
93,
50,
25,
-101,
14,
-93
] |
McCulloch, C. J.
Plaintiff’s intestate, Homer Scott, was a deaf and dumb boy, fifteen years of age, and was run over and killed by one of defendant’s trains while he and two deaf-mute companions, about the same age, were walking the track near McAlmont,a station on the road six or seven miles north of Little Rock. The plaintiff is the father of Homer Scott, and sues as administrator to recover damages to the estate on account of the pain afid suffering endured by deceased, and also damages to himself on account of the loss of services of deceased to which he was entitled as parent. A trial resulted in a verdict for the plaintiff, assessing damages at $1,000 on each branch of the case, and defendant appealed.
The three boys were students at the Deaf-Mute Institute near the city of Little Rock, and on the afternoon of the accident, they crossed the river on the railroad bridge and walked northward on the track until they got nearly to McAlmont, where the accident occurred. The two survivors testified through an interpreter, and gave an account of the way the accident occurred. According to their testimony, they walked along the track, and once or twice got off to avoid approaching trains coming from the north. At the time of the accident they were walking along the track, one of the boys walking on the ends of the ties on the outside of the rail; Homer Scott was walking the right-hand rail, with his hand resting on the shoulder of the other boy; and the third one was walking the ends of the ties on the other side of the track. The testimony tends to show that the boys were conversing by signs as they walked along. A passenger train approached from the south, and the boys were seen both by the fireman and engineer for perhaps something more than a quarter of a mile. The whistle was sounded for the crossing several hundred yards distant, and the fireman continued to ring the bell. Another witness, who was near the track at the time, stated that alarm whistles were commenced about three hundred yards from where the boy was struck. Neither of them gave any indication of having heard the alarm, and when the engine got within a short distance of them, the emergency brake was applied, but too late to prevent striking this boy. The other two, who were walking on the ends of the ties, stepped aside in time to escape injury. The engineer testified that he saw the boys for a considerable distance, but didn’t know thei'e was anything the matter with them nor that they were unconscious of the approach of the train, and that he thought they would get off before the engine reached them. He testified that, as soon as he realized that they were not going to get off, he applied the emergency brake and did all he could to stop the engine.
The action is based upon alleged negligence of the engineer in failing to exercise care to avoid striking deceased after discovering his peril. It is insisted that the evidence is not sufficient to warrant the finding that the engineer discovered, in time to avoid the injury, the fact that the boys were unconscious of the approach'ng train. The testimony does not free the question from doubt, but we are of the opinion that, under the facts of the case, it was peculiarly w'thin the province of the jury to determ'ne whether the engineer was guilty of negligence in this respect. It is conceded that he saw the boys at least a quarter of a mile, walking along the track, and that alarms, both by bell and whistle, were given about that time. The boys paid no attention to these alarms, and gave no indication whatever that they heard them. It was within the province of the jury to apply their practical knowledge to the facts and draw the legitimate inference that failure of these boys to respond to the signals, by stepping off the track or even looking around, so as to show that they had heard the signals, was sufficient to apprise the engineer of their perilous situation. The engineer stated that it was a common occurrence for boys, or even men, to remain on the track after signal was given, and not step off until the last moment. But still this does not prevent the jury from applying their knowledge of human affairs, to say that the boys would, at least have given some indication of having heard the signals, and that their failure to do so was sufficient to apprise the engineer of the fact that they had not heard them. While the testimony presents a very close question at issue, we are of the opinion that it was sufficient to warrant the jury in drawing an inference of fact which sustains the verdict, and we do not feel at liberty to disturb it.
The recent case of Memphis, D. & G. Bd. Co. v. Buckley, 99 Ark. 422, is quite in point upon this question.
Error is assigned in the court’s refusal to give the fol- ■ lowing instructions:
“XI. The court instructs you as a matter of law that it is not sufficient to warrant you in returning a verdict against the defendant in this case for you to merely find from the evidence that the engineer might have known that the deceased did not hear the whistles or alarms that were sounded, or might have known that deceased was not going to leave the track. The evidence, under the law, before the plaintiff can recover, must go further and show by a preponderance thereof that the engineer actually realized that the deceased was afflicted; that he could not hear, and that he was not going to leave the track, and that with this knowledge the engineer failed to exercise ordinary care to prevent striking and injuring the deceased.”
This instruction was properly refused, for it is not correct to say that, before negligence can be attributed, under the circumstances of this case, the engineer must have actually realized that the deceased was unconscious of his peril. It was sufficient if the engineer saw him and his conduct or appearance was sufficient to put the engineer on notice that he was unconscious of the danger. The law of the case has been stated in a former opinion of this court as follows:
“If, however, the man seen upon the track is known to be, or from his appearance gives them good reason to believe that he is, insane or badly intoxicated, or otherwise insensible of danger or unable to avoid it, they have no right to presume that he will get out of the way, but should act upon the hypothesis that he might not or would not, and should use a proper degree of care to avoid injuring or. killing him. Failing in this, the railroad company would be responsible for damages, if by the use of such care, after becoming aware of his negligence, they could have avoided injuring him.” St. Louis, I. M. & S. Ry. Co. v. Wilkerson, 46 Ark. 523.
The defendant requested the following instruction, which the court modified by inserting the italicised words, which modification is assigned as error:
“XII. The court charges you that where an engineer sees a boy or boys upon the railroad track ahead of the train, and that he sounds the whistle to warn them of the approach of the train, that he has a right to presume, until their acts indicated the contrary, that they will heed said alarm and get off the track in time to prevent being struck by the train.”
The modification was entirely correct, we think, for the reasons already stated. Nor do we think there is any ground for contention that the modification of this instruction, or another one, which was also modified in the same manner, amounted to an assumption of the truth of the facts recited. Other refused instructions were substantially covered by instructions which the court gave. In fact, we are of the opinion that the law of the case was properly given to the jury, and that there is no error in this respect.
It is finally contended that the verdict is excessive. The injury occurred about 5 o’clock in the afternoon, and both of the boy’s legs were so badly mangled that they had to be amputated, which was done after he was brought back to Little Rock about 9 o’clock that night. There is evidence that the boy was conscious for a considerable portion of that time, first, for awhile after the injury occurred, and, then, when he was aroused at the hospital.
On the other branch of the case, the testimony shows that the deceased was a bright, intelligent boy, and that he had an earning capacity on his father’s farm of about a dollar a day at that time. He had been in the Deaf-Mute Institute three years, and worked for his father about four months each year during the summer vacation. He was in good health, and made a good farm hand. The evidence fully warranted the conclusion that the boy would grow in strength and intellect from year to year, and that his earning capacity would be increased. Considering all the facts of the case, we are unable to say that the verdict was excessive on either branch of the case, so the judgment is affirmed. | [
-16,
93,
-116,
-98,
-86,
97,
10,
-102,
97,
-29,
-25,
-45,
-19,
85,
25,
99,
103,
55,
81,
41,
118,
-109,
18,
35,
-53,
-9,
63,
-58,
23,
75,
108,
-41,
72,
48,
-54,
85,
98,
75,
-59,
20,
-50,
63,
-24,
-32,
57,
16,
52,
123,
86,
46,
53,
30,
-77,
42,
28,
-24,
104,
-65,
107,
-71,
-47,
120,
-118,
7,
-3,
17,
-95,
82,
-70,
7,
64,
24,
-104,
53,
-120,
-20,
114,
38,
-106,
-43,
33,
-51,
-116,
110,
-26,
40,
9,
-25,
-71,
8,
111,
38,
-123,
-90,
-106,
105,
3,
71,
-109,
-99,
120,
84,
14,
-6,
-22,
-52,
88,
44,
-123,
-49,
20,
-127,
109,
-92,
-108,
3,
-6,
-87,
36,
112,
-56,
-78,
92,
71,
62,
-97,
-114,
-9
] |
Wood, J.,
(after stating the facts). The appellant requested the court to direct the jury to return a verdict in its favor, which the court refused. The appellant duly excepted to the ruling of the court, and urges here that the court erred in not granting its prayer, contending that the undisputed evidence shows that there was no negligence on the part of the appellant which was the proximate cause of the injury to Minson, and also that the undisputed evidence shows that Minson’s own negligence was the cause of his injury; and also that the undisputed evidence shows that Minson assumed the risk.
It could serve no useful purpose to discuss in detail the evidence upon which appellant bases its contention. We have set forth somewhat at length in the statement the facts which the testimony tends to prove, and our conclusion is that the questions both of negligence and contributory negligence, under the evidence, were for the jury; also the question as to whether or not Minson had assumed the risk. These questions were all submitted to the jury upon instructions to which no objections have been urged here, and, while the defenses of assumed risk and contributory negligence were not set up in the answer, they were, without objection on the part of the appellee, developed in the progress of the trial, and were treated by the court in its instructions as issues in the cause. It is therefore proper to consider them here, which we have done.
In our opinion, the only testimony which would warrant a finding of negligence on the part of the appellant is that tending to prove that appellant had failed to keep its trestle in a safe condition. That testimony which tended to show that appellant had permitted its ties to become rotten so that the same would give way and cause a brakeman, while passing over or stepping upon it in the discharge of his duty, to fall and thus to receive the injury for which damages are sought, is the only testimony upon which the liability of appellant could be predicated.
The manner in which appellant constructed this trestle originally had nothing whatever to do with the injury to Min-son. The manner of construction was in no sense the proximate cause of the injury to the brakeman. The negligence, if any, consisted, not in an improper construction of the trestle in the first place, but in the manner in which it was maintained, and in the unsafe condition in which the evidence tended to show appellant had negligently permitted it to become by failing to keep it in proper repair.
If appellant was liable at all, it was because, through its negligence, it had failed to replace the rotten ties with sound ones before it became necessary for Minson to pass over the same in the work of coupling th e cars. Therefore, the testimony as to the custom of other roads in the manner of building such trestles as the one under consideration was wholly irrelevant and incompetent. It' introduced an issue of negligence that was foreign to any allegation of negligence that was made in the appellee’s complaint. The testimony was highly prejudicial, because it was calculated to cause the jury to conclude that if appellant had not constructed its trestle in the first place in the customary manner of other railroad companies it was negligent and should be held liable for that reason, whereas it is not shown that the original construction of the trestle was in any manner the cause of the injury to Minson.
In this view of the ease it is wholly unnecessary for us to determine whether or not the testimony would be admissible in any event, and we pretermit that question.
For the error indicated the judgment is reversed, and the cause is remanded for a new trial. | [
-80,
104,
-36,
-97,
26,
96,
58,
122,
97,
55,
101,
-41,
-19,
-45,
-56,
71,
-90,
-19,
-43,
42,
-59,
-93,
7,
-61,
-14,
-41,
-15,
-41,
-79,
-20,
-9,
124,
77,
48,
66,
-107,
-26,
10,
-59,
88,
-50,
-107,
8,
-23,
-101,
-16,
36,
118,
84,
79,
49,
-98,
-45,
42,
28,
-57,
105,
44,
75,
57,
-16,
48,
-104,
45,
95,
6,
-77,
38,
-65,
99,
72,
60,
-48,
49,
1,
-8,
115,
-74,
-128,
-44,
105,
-119,
8,
98,
103,
33,
13,
111,
-88,
-104,
63,
110,
29,
-90,
112,
72,
75,
41,
-73,
-3,
127,
80,
54,
110,
-12,
93,
92,
108,
3,
-113,
-106,
-79,
-97,
100,
-98,
7,
-17,
-111,
22,
113,
-50,
-6,
92,
37,
18,
-101,
-97,
-68
] |
Wood, J.,
(after stating the facts). Although appellee, in his complaint, sets out the contract between him and appellant, he asks no affirmative relief as against appellant on this contract. His complaint was for the redemption of the land from the sale under the mortgage. It was really unnecessary for him to have made the appellant a party to the suit, and the contract which he set up was not germane to the relief of' redemption which he sought by his complaint. See Tombler v. Sumpter, 97 Ark. 480. The court obviously treated it as unnecessary and foreign to the issue on the question of redemption, and therefore dismissed appellant’s cross complaint for specific performance and alleged damages growing out of the failure on the part of appellee to perform the contract set forth.
The contract set up in the complaint was neither the foundation of the appellee’s claim, nor was it connected with the subject of the action. As we have stated, the subject-matter of the action was the redemption from the mortgage sale. The matters and things set forth in appellant’s cross complaint, if true, would not in any manner entitle him to defeat appellee’s right of redemption.
This court in Hays v. McLain, 66 Ark. 400, held (quoting syllabus): “In a suit to- enforce specific performance of a contractxto convey land, defendant can not, by way of counterclaim, ask foreclosure of a mortgage on the land given by plaintiff to defendant.”
The court quotes in its opinion section 745 of Pomeroy’s Code Remedies, where the learned author, after reviewing many adjudged cases, said: “These cases must be considered as establishing the doctrine that the defendant’s cause of action in order to constitute a valid counterclaim, must to some extent defeat, modify, qualify or interfere with the relief which would otherwise be obtained by the plaintiff.” See, also, Mitchell v. Moore, 87 Ark. 166.
Section 6099 of Kirby’s Digest -provides that: “The counterclaim mentioned in this chapter must be a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transactions set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action.”
Here the counterclaim set up in appellant’s cross complaint has no connection whatever with the foundation of plaintiff’s claim, and is not in any manner connected with the subject of the action, whieh, as we have shown, is purely the question of appellee’s right to redeem. The court properly treated 0the other allegations, as to the contract as incidental and unneces sary to the relief sought. Its judgment striking appellant’s cross complaint from the files of the court was correct, and it is therefore affirmed. | [
-110,
110,
-111,
-83,
-118,
-32,
50,
-88,
73,
-93,
39,
-33,
125,
-50,
-100,
39,
-26,
121,
81,
120,
85,
-94,
103,
64,
-46,
-109,
113,
85,
-79,
79,
-28,
29,
76,
48,
-62,
-41,
103,
-118,
-59,
88,
14,
-121,
-102,
76,
-7,
72,
52,
-37,
26,
9,
49,
-49,
-13,
45,
24,
71,
13,
44,
123,
61,
-15,
56,
-70,
13,
127,
13,
49,
37,
-4,
99,
-6,
106,
-112,
49,
1,
-56,
91,
-74,
-122,
116,
73,
27,
9,
98,
100,
32,
96,
-23,
-100,
-103,
46,
-68,
-99,
38,
-47,
56,
10,
41,
-90,
-99,
100,
4,
71,
126,
-4,
-115,
28,
-20,
7,
-50,
-106,
-79,
-33,
-26,
-102,
3,
-26,
-110,
48,
100,
-49,
-78,
92,
-25,
126,
-37,
12,
-7
] |
Frauenthal, J.
This is an action of replevin instituted by E. O. McDermott to recover a certain lot of lumber, said to be about 22,000 feet. It was instituted against J. M. and W. H. Cox and the Kimball Lumber Company, and the latter defendant alone made defense. The lumber was manufactured by said J. M. Cox, who owned and operated a sawmill situated about one mile from Cypress, a railroad station. It appears that said Cox was operating his sawmill in December, 1909, at Wilmot, and then traded with plaintiff, who was conducting a mercantile business at that place. He continued' doing business with plaintiff and beeame indebted to him, and this indebtedness continued until in April or May, 1910, when it amounted to between eight and nine hundred dollars. In January, 1910, the manager of the Kimball Lumber Company wrote to said Cox that if he would move his plant to land owned by it near Cypress it would buy the lumber manufactured by him; that it would advance thereon $10 per thousand feet when the lumber was on the sticks at the mill, and would pay therefor when loaded on the cars at said railroad station certain named, prices for specified grades of the lumber, ranging from $10 per thousand for No. 1 common to $28 per thousand for firsts and seconds. And it appears that said Cox accepted this proposition and proceeded to move the mill to a point near Cypress.
On March 5, 1910, when the mill plant was about half completed, Cox obtained from the Kimball Lumber Company $400, and gave a receipt therefor in which it was stated that he agreed to deliver lumber therefor in accordance with the terms of the above letter during the months of March and April, 1910, or for a period of sixty days thereafter, in event that that time was needed to make such, delivery. Of this sum, Cox paid to plaintiff $175 on the indebtedness due by him, and informed him of the correspondence and agreement he had made with the Kimball Lumber Company for the sale of his lumber. On April 1, 1910, Cox began sawing lumber, and in the latter part of that month notified the Kimball Lumber Company to send its agent to estimate the amount of lumber then stacked at the mill. In pursuance of this request, the Kimball Lumber Company sent its agent, who on April 29, 1910, estimated the lumber then on the yard. At that time the lumber was stacked in piles at the mill, and this agent estimated the amount in each pile, and then placed upon each pile the amount so estimated by him, and also tagged or marked each pile with the name of the Kimball Lumber Company. This agent and said J. M. Cox, and his son and manager, W. H. Cox, testified that said J. M. Cox then sold and delivered the lumber to the Kimball Lumber Company, and that it was understood by the parties that the lumber was then the property of the Kimball Lumber Company. They testified that they estimated the lumber at 22,000 feet; that, according to the contract, Mr. Cox was to receive $10 per thousand on such estimate, but had already received $400 thereon, which was more than the estimate entitled him to; that the remainder of the purchase money for said lumber was to be paid after it had been hauled to the railroad station and there graded and measured and placed on board the cars. The testimony on the part of the defendant tended further to prove that the Kimball. Lumber Company directed and employed said Cox to move this lumber to the railroad station, which he did in the early part of June. Thereafter the plaintiff instituted this action and replevied the lumber.
It appears from the testimony in behalf of plaintiff that on May 2, 1910, said J. M. Cox was indebted to him in the sum of $860.80, and that they then entered into a written contract whereby, amongst other things, it was provided that said Cox did release and sell to said plaintiff “all the lumber stacked in the yards of the mill at Cypress or near that place, with the exception of the lumber taken up and sold to the Kim-ball Lumber Company.” On May 28,1910, Cox gave to plaintiff an order upon the Kimball Lumber Company for $424 which said company refused to honor or pay. Thereupon, and on June 1, 1910, in consideration of $424 due by him" to the plaintiff, said Cox executed a bill of sale to the plaintiff in which it was stated that he did sell and deliver to him “the lumber (22,000 feet) that was inspected by the Kimball Lumber Company, they having refused to pay my roder in favor of Doctor McDermott;” and it is under this bill of sale that plaintiff claims title to the lumber.
The case was tried by a jury, which returned a verdict in favor of the Kimball Lumber Company for the lumber, and placed its value at $400. From the judgment entered upon this verdict both parties have appealed. Plaintiff has appealed for the purpose of reversing the judgment chiefly upon the ground that there was no delivery of the lumber to the Kim-ball Lumber Company, so as to complete the alleged sale thereof to it. The Kimball Lumber Company has appealed on the ground that the uncontroverted testimony shows that the value of the lumber was largely in excess of $400.
The court gave a number of instructions, both at the request of the plaintiff and of the defendant, relative to the question as to whether or not the alleged sale of the lumber to the Kimball Lumber Company was completed and the title passed to it. We do not think that it would serve any u eful purpose to set these instructions out or to note them in detail. We are of the opinion that the court committed no prejudicial error in its rulings relative to the instructions given or refused, and that those given sufficiently presented to the jury the law applicable to this case. The question then to determine is whether or not there is sufficient evidence to sustain the finding of the jury that the alleged sale of the lumber to the Kimball Lumber Company was consummated by sufficient delivery thereof.
It is urged by counsel for plaintiff that a sale is not complete as long as anything remains to be done between the buyer and seller in relátion to the goods, and that for this reason the alleged sale to the defendant.under the evidence was not complete. If there was a sufficient delivery of the lumber to the defendant, then, under the testimony, the only thing that remained to be done between him and the seller, J. M. Cox, was'for defendant to pay the remainder of the purchase money for the lumber after grading and measuring it. In the case of Beller v. Black, 19 Ark. 573, it was said: “The purchase money may remain to be paid, and yet the purchase be complete if the goods are delivered.” It has been uniformly held by this court that the title to personal property will pass and the sale be complete if it is the intention of the parties to transfer the title on the one part and to accept the property on the other, and in pursuance thereof a delivery is made, even though something remains to be done, as, for example, the fixing of the quantity or amount of the property or the payment of the purchase money. Chamblee v. McKenzie, 31 Ark. 155; Gans v. Holland, 37 Ark. 483; Shaul v. Harrington, 54 Ark. 305; Priest v. Hodges, 90 Ark. 131; Guion Merc. Co. v. Campbell, 91 Ark. 240.
Thus, in the case of Lynch v. Daggett, 62 Ark. 592, it was held that a contract of sale was complete, although the property was thereafter to be moved by the seller to the place named. In the case of Anderson Tully Co. v. Rozell, 68 Ark. 307, it was held that a sale was complete and the title to lumber passed to the buyer, although it was thereafter to be hauled to another place and there measured, and the balance of the purchase price determined by such measurement was then to be paid.
The question then recurs, was there a sufficient delivery of the lumber to the Kimball Lumber Company to make the sale complete as against the rights of the subsequent purchaser? In the sale of personal property, the delivery of the thing sold is essential as against the rights of third parties asserting a title, right or interest therein subsequently acquired from the seller. A delivery may be either actual or constructive, and in either event-it will be effective to pass title. Where property is of such a nature and so situated that actual delivery thereof can be made, then that is necessary. Where the property is too ponderous and bulky for an actual change of its possession, a symbolical or constructive delivery thereof will be equivalent to and effective as an actual delivery. The delivery of such property may be made by doing everything necessary to identify it and by placing on it outward indicia to show a change of the possession and ownership.
In the case of Little Rock & Ft. S. R. Co. v. Page, 35 Ark. 304, it was held (quoting syllabus): “What constitutes delivery depends upon the situation and character of the property. Removal from the premises is not necessary. It is sufficient if the contract of sale has been definite and unconditional, and everything has been done in pursuance of it by the vendor, which is necessary to identify the property and separate it from other, so that it may be known what, specifically, has been sold.”
In the case of Smith v. Jones, 63 Ark. 232, it was held (quoting syllabus): “Proof that the vendors of a large quantity of lumber directed the vendees to mark it in their name, which was accordingly done, is sufficient to support a finding that there was a delivery of the lumber in pursuance of sale.” See also King v. Jarman, 35 Ark. 190.
It will thus be seen from these cases that the question as to whether or not a contract of sale is complete so as to pass title as against those subsequently obtaining an interest or claim to the property is determined by whether or not it was the intention of the parties to fully consummate the sale and pass the title, and whether or not such a delivery thereof was made as the nature of the property would admit of, and such outward indicia or marks of a change of ownership had been made so as to advise third parties dealing therewith of such change of the ownership. Lee Wilson & Co. v. Crittenden County Bank, 98 Ark. 379.
In the case at bar the testimony on the part of the defendant shows that its agent was sent to the mill to estimate •the lumber then stacked upon the yards and to take it up for the defendant. The lumber was stacked in piles, and this agent then estimated it in the presence of the seller, and after doing so marked upon each pile the number of feet it contained, and also the name of the Kimball -Lumber Company, to whom the owner then sold it, and by these outward indicia of possession both the seller and the buyer intended to show that the lumber was actually delivered to the Kimball Lumber Company. Both the seller and the agent of the buyer testified that it was the intention then to make a complete sale of the lumber and pass the title thereto to the defendant. Of this the plaintiff was notified, because thereafter, on May 2, he entered into the above written contract with said Cox by which said Cox sold to him the other lumber and in this contract it is expressly stated that the lumber in controversy had been taken up and sold to the Kimball Lumber Company, and was excepted from said contract of sale to the plaintiff. In addition to this, at the time the lumber was estimated and marked in the name of the Kimball Lumber Company, an agreement was made between the defendant’s agent and said Cox, the seller, that Cox would haul the lumber to the railroad station for the defendant, which was done; and this suit was not instituted until after such removal had been made.
We are of the opinion that there was sufficient evidence adduced upon the trial of this case to show a delivery of the lumber by said' Cox to the Kimball Lumber Company on April 29, and that such delivery was made in pursuance of a sale which, according to the intention of both buyer and seller, was then complete; and that the title then passed to the Kim-ball Lumber Company, although it was understood that the balance of the purchase money was thereafter to be paid after the lumber had been graded and exact measurement made thereof. The title to the lumber having passed to the defendant on April 29, 1910, the plaintiff could not obtain title thereto from Cox by the bill of sale executed to him on June 1, 1910.
It is urged by counsel for defendant that the uncontroverted evidence shows that the value of the lumber was far in excess of $400, and that it amounted at the lowest sum to $680, the price at which it was subsequently sold by the plaintiff. The defendant asks that the judgment be affirmed, in so far as it adjudges a recovery of the property to it, and it only seeks to have this judgment modified in regard to the value of the property. The verdict upon which this judgment is based is entire; and, even if it should be held that the judgment could be in part affirmed and in part modified, we do not think that such modification is warranted by the testimony relative to the value of this lumber. The lumber never had been graded, and there is no testimony as to its exact grades, or as to the amount that there was in the different grades. It appears from the letter of defendant introduced in evidence that the lumber of this character runs from common No. 1 to firsts and seconds, and that the value thereof ranges from $10 per M. to $28 per M. There were 22,000 feet of lumber replevied, and we can not say from this testimony whether it was of the value of $10 per M. or more. We can not say, therefore, from the testimony adduced that the jury were not warranted in finding the value of this lumber to be $400.
The judgment is accordingly affirmed. | [
112,
121,
-72,
-115,
10,
-24,
42,
-102,
122,
-95,
-91,
119,
-3,
-32,
8,
49,
-25,
125,
117,
63,
-28,
-77,
19,
103,
-45,
-109,
-13,
-57,
-68,
-52,
-27,
87,
76,
20,
66,
-107,
-42,
-128,
-19,
88,
-114,
-128,
-87,
-22,
-103,
120,
52,
-97,
116,
73,
97,
14,
-5,
44,
28,
67,
9,
47,
111,
41,
-16,
-7,
-78,
-67,
55,
22,
-96,
98,
-104,
17,
-56,
88,
-104,
53,
16,
-23,
123,
-76,
-122,
-44,
67,
-115,
12,
98,
-90,
1,
-59,
-89,
-8,
-104,
47,
-70,
-103,
-90,
1,
60,
19,
64,
-67,
29,
80,
-112,
20,
126,
-17,
-123,
92,
108,
-125,
-121,
-74,
-125,
95,
96,
-52,
23,
-21,
-109,
51,
117,
-33,
-93,
92,
47,
58,
-65,
-113,
-23
] |
Wood, J.
Act 321 of the General Assembly, approved May 31, 1909, is as follows:
“An act to create special or single school districts in any county in the State of Arkansas, with same powers as are now granted to incorporated cities and towns for such purposes, and impowering the county judge to call said election.
"Be It Enacted by the General Assembly of the State of Arkansas:
"Section 1. That when the people of any given territory in any county in this State, other than incorporated cities and towns, desire to avail themselves of the benefits of all laws of this State for the regulation of public schools in incorporated cities and towns, they may be organized into and establish as a single school district in the manner and with powers therein provided, with such modifications of said laws as are herein provided.
“Section 2. That the petitions provided for in section 7669 of Kirby’s Digest of the laws of Arkansas shall be accompanied by a map showing the territory asked to be made into the special district- and shall be presented to the county judge of the county containing such territory, who shall perform the duties imposed upon the mayor of cities and towns in said original act, and with like force and effect, and said county judge shall designate the time and place for holding the election provided for therein, and shall appoint three qualified electors of the proposed territory to hold said election.
“Section 3. That all school districts created under this act shall have the power to borrow money as any other special or single district, in cities or incorporated towns, when a majority of the legal electors vote for the same, at any annual school meeting.
“Section 4. All laws and parts of laws in conflict with this act are hereby repealed, and this act be in force and effect from and after its passage.”
These appeals challenge the validity of the act under section 22, article 5, of the Constitution, which provides: “No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be reenacted and published at length.”
In Watkins v. Eureka Springs, 49 Ark. 131, the court had under consideration a similar question. There the act provided :
“Section 1. That once during the year 1875, and every succeeding year thereafter, the county court of any county or the municipal authority of any city or incorporated town in this State may call in the outstanding scrip or warrants of said county, or floating evidence of indebtedness of said city or incorporated town, for the purpose of cancelling and reissuing the same.
“Section 2. That the law governing such proceedings in ■ a county shall apply with equal force to cities and incorporated towns. The council, recorder and marshal shall perform the duties laid down for the county court, the clerk and sheriff respectively. ”
Chief Justice Cockrill, speaking for the court, said:
“The second section adopts the method of procedure provided for like cases where counties axe concerned without reenacting the governing provisions. We are not, however, prepared to assert that when a new right is conferred or cause of action given, the provisions of the Constitution quoted require the whole law governing the remedy to be reenacted in order to enable the court to effect its enforcement. An d we see no reason for refusing to apply the same rule to special proceedings like this. To prevent that kind of legislation could not have been the mischief the provision was intended to remedy. It could not have been the intention of the framers of the Constitution to put unreasonable restraints upon the power of legislation, and thus unnecessarily embarrass the Legislature in its work. ”
In Scales v. State, 47 Ark. 476, the same learned judge, speaking of this provision of the Constitution, said:
“It is well settled that this provision does not make it necessary when a new statute is passed that all prior laws modified, affected or repealed by implication by it shall be reenacted. ”
The act in question does not revive or amend any prior law, or extend or confer the provisions of any law in existence to the inhabitants of rural districts in any county in this State. On the contrary, it confers a new right upon the people in such territory- — one that they never enjoyed before — of organizing themselves into single school districts in the same manner that such districts are organized in cities and incorporated towns, and confers upon them, when so organized, the same powers as are given these special school districts under existing laws.
The power granted by the Legislature was for the organization and establishment of single school districts of territory that was embraced in common school districts. The Legislature did not have in mind special school districts already in existence, and did not authorize the changing of the boundaries of any special school district that theretofore had been created by special act of the Legislature of territory outside of incorporated cities and towns. The authority given was for the-organization of single school districts of territory that had not before been granted such privileges. See Scott v. McCullough, 75 N. E. 52; Fulks v. Wright, 75 N. E. (Ohio) 55.
In Spratt v. Helena Power Transm. Co., 94 Pac. 631, the Supreme Court of Montana, was passing upon the following section of an act of the legislative'assembly:
“Any corporation organized under the laws of any State' of the United States, or laws of the United States, and authorized to engage in business in this State, and engaged in business in this State, may acquire real property as provided in the Code of Civil Procedure, title 7, page 3, .to the same extent, for the same purposes and in -the same manner as corporations organized under the laws of this State.” In that case, after an exhaustive review of the authorities the court held: “If an act is original in form, and by its own language grants some power, confers some right or creates some burden or obligation, it is not in conflict with the Constitution, although, it may refer to some other existing statute for the purpose of pointing out the procedure in executing the power, enforcing the right, or discharging the burden.”
Section 1 of the act under consideration is an original and distinct grant of power to the people outside of cities and towns to form special school districts, and that portion of the section' which makes applicable the provisions of laws then in force refers to single school districts and relates only to the method of procedure in effectuating the grant of power. Such provisions do not contravene the section of the Constitution under consideration. St. Louis & S. F. Rd. Co. v. Southwestern Tel. & Tel. Co., 121 Fed. Rep. 282, and cases there cited.
Of course, the act under consideration will have the effect, when put in operation in the manner designated in the act, to change the boundaries of common school districts within the territory organized into single school districts, and thus may work hardships in individual instances where the boundaries of common school districts are disturbed by the changes made; but with the policy or expediency of the legislation this court has naught to do, so long as the act does not violate constitutional limitations.
This court, in the recent case of Norton v. Lakeside School District, 97 Ark. 71, held that “a school district is a creature of the Legislature, or of some governmental agency of the Legislature. The Legislature is primarily vested with the power to create school districts, and it may create or abolish school districts, or change the boundaries of those established for any reason that may be satisfactory to it. The Legislature may do this without consulting and without obtaining the assent of those persons who reside in the territory affected.” See 35 Cyc. 833; School District of Fairview v. Ind. School Dist. of Burlington, 139 Iowa 249; School District v. Zodiker, 47 Pac. 482.
The fourth section of the act repeals all laws and parts of laws in conflict. This has the effect of repealing the laws in force at the time with reference to the changing of the boundaries of common school districts affected by the operations of act No. 321, now under consideration, wherever the people of any given territory in any county in the State avail themselves of the provisions of the act in the manner specified therein.
There is nothing in this record, either by way of allegation or proof, to show that appellee, Oak Grove Special School District, was not organized and established in the manner required by the statute. In the absence of such showing, the presumption will be that such, was the case. The act does not provide for an official canvass of the votes and a declaration of the result thereof by the county court. It does not require that the county court make and enter of record any orders as to such special election or as to the establishment of the special school district. The district is established, under the law, .if a majority of the qualified electors within the territory named in the petition before the county judge shall vote for the establishment of such district.
Section 2 of the act provides that the county judge shall appoint three qualified electors in the proposed district to hold said election. The law thus contemplates that these three designated electors shall ascertain and make known the result, of the election.
The judgments of the circuit court, affirming the action of the county judge in carrying out the provisions of the act under consideration and establishing the special school district are affirmed. | [
87,
-21,
-44,
62,
26,
100,
30,
-74,
-109,
-71,
97,
-45,
111,
-40,
-108,
117,
-93,
-17,
81,
88,
-28,
-73,
83,
74,
-126,
-5,
-41,
-57,
-5,
85,
-10,
-37,
74,
112,
-54,
-39,
70,
98,
-63,
-36,
-114,
-126,
11,
78,
81,
-63,
62,
100,
122,
-113,
37,
14,
-93,
45,
62,
-45,
-27,
44,
89,
-82,
115,
-77,
24,
-33,
113,
7,
-127,
-30,
-118,
-111,
72,
-24,
24,
53,
-100,
-72,
50,
-90,
86,
-41,
13,
-39,
9,
96,
102,
1,
-96,
-9,
-72,
-120,
22,
-45,
-19,
-90,
-110,
25,
98,
14,
-66,
18,
127,
-112,
10,
-2,
33,
-59,
86,
124,
-124,
-18,
-12,
35,
-59,
41,
-112,
3,
-21,
99,
48,
117,
-64,
-74,
95,
-59,
19,
27,
-62,
-40
] |
Wood, J.
The purpose of this appeal is to determine when fees in misdemeanor cases in justice-of-the-peace courts, on conviction of the accused, are to be allowed and paid to the officers of such courts, the parties convicted having been turned over to the sheriff and by him delivered to the warden of the convict road district, under the provisions of act No. 207 of the General Assembly, approved May 6, 1909. Section 7 of that act provides:
“The county in which the conviction is had for misdemeanor orfelonyshallpayallthecosts of the prosecution from its appropriation for circuit court expenses, and any fine and costs paid by the convict shall be paid to any sheriff of the county in whatsoever court convicted, and such money shall be by said sheriff paid into the county treasury as aforesaid. ”
It was within the power of the Legislature to make counties liable for costs in misdemeanor cases tried before a justice of the peace where the parties charged are convicted, and to provide for the payment of such costs out of the funds appropriated for the payment of circuit court expenses. The Legislature had the power to enact that the quorum court, when it made its appropriation for expenses of the circuit court, should take into consideration the costs accruing in misdemeanor cases, upon conviction, in magistrates’ courts and to group the costs with the expenses of the circuit court, and to make the appropriation for the entire expenses of both courts under the one head of expenses of circuit court. It would be an inapt designation, of course, on the part of the Legislature to call the costs accruing in magistrates’ courts “expenses of circuit court,” still it would not be unconstitutional for the Legislature to so enact. The rule is, in passing on the constitutionality of an act, to resolve every doubt in favor of its validity. Railway Co. v. Smith, 60 Ark. 221; Martin v. State, 79 Ark. 236; Road Imp. Dist. v. Glover, 86 Ark. 231.
Section 1499, subdivision 1, Kirby’s Digest, page 478, provides that the quorum court shall make appropriation “to defray the lawful expenses of the several courts of record of the county or district and the lawful expenses of criminal proceedings in magistrates’ courts, stating the expenses of each of said courts separately.'
While the quorum court, under this provision, would have to designate the amount of. the expenses of each of said courts separately, there is nothing in the Constitution to inhibit the Legislature from enacting that the appropriation made for the payment of the expenses of these separate courts should be designated as funds for the payment of circuit court expenses.
As we construe the section under consideration, it is neither a levy nor an appropriation by the Legislature. It does not impinge upon the authority of the quorum court, which is the tribunal designated by the Constitution and statute for the purpose of levying taxes and making appropriations for the payment of court expenses, under section 30, article 7, of the Constitution and section 1499, subdivision 1, of Kirby’s Digest.
The section under consideration makes no provision as to the time when the fees accruing in cases of conviction are to be paid. It provides for their payment, however, which necessarily implies that the fees are due as soon as the services are rendered, and should be allowed and paid, as in cases of other costs, when the claims therefor are duly presented to the county court.
The agreed statement of.facts upon which appellee obtained judgment in his favor in the circuit court showed that he presented his fee bill account to the county court for the sum of $3.90 as fees for trying a misdemeanor case in his court as justice of the peace; that one Bill Scott was tried before him as such justice for a misdemeanor, towit; gaming; that he was convicted, fined and committed to the jail of the county of Jackson for the fine and costs assessed against him, and was by the sheriff of the county delivered to the warden of the convict road district of Jackson County, and was still in charge of said warden, and had not, up to the time appellee presented his claim for allowance, worked a sufficient number of days to pay his fine and costs; that a portion of the fine and costs at that time was still due; that the fees claimed by appellee were the regular fees allowed by law for such services.
Under the facts as thus presented, in our opinion neither the question of levy or appropriation is involved, and only the constitutionality of the section above mentioned is brought into question. The constitutionality of the other provisions of the act, in regard to hirin'g out convicts, etc., are not properly here, and we therefore do not pass upon them.
The judgment of the circuit court is correct, and it is affirmed. | [
84,
-23,
-4,
-4,
75,
64,
2,
-104,
67,
-93,
-92,
-45,
-83,
2,
0,
119,
-93,
95,
117,
107,
-59,
-105,
119,
107,
-70,
-69,
-49,
87,
-65,
71,
-18,
-10,
78,
116,
-54,
-47,
70,
-62,
-91,
-104,
-114,
-119,
-88,
65,
97,
72,
52,
37,
19,
15,
113,
-97,
-21,
40,
80,
83,
-56,
44,
89,
-87,
80,
-78,
-102,
-113,
127,
31,
-95,
-25,
-119,
1,
-24,
60,
-104,
25,
64,
-24,
115,
-122,
-126,
-44,
69,
-103,
9,
106,
98,
-128,
36,
-1,
-104,
-115,
54,
-70,
-99,
-89,
-102,
121,
106,
-116,
-74,
21,
110,
20,
15,
118,
-28,
-107,
87,
46,
-127,
-113,
-108,
-93,
-113,
108,
-52,
82,
-53,
99,
112,
117,
-60,
-14,
94,
-57,
86,
19,
-124,
-43
] |
Hart, J.,
(after stating the facts). The defense relied on by the defendant for an acquittal was his alleged insanity at the time of the killing, and this question was submitted to the jury under proper instructions given by the court. The jury by its verdict found against the defendant on that issue. If the defendant was capable of distinguishing between right and wrong when he killed his wife, there can be no doubt but that it was a wilful, deliberate and premeditated killing, and that he was guilty of murder in the first degree.
After the jury had deliberated for some time, they returned into court and asked for further instructions as to the distinction between murder in the first and second degrees. The court them gave them the following instructions:
“I have stated to you that the distinction between murder in the first and second degree is a very dim line.' In order to convict the defendant of murder in the second degree, it must be clear to the jury from all the facts and circumstances in the case that at the time the fatal shot was fired there was an intent on the part of the defendant to take the life of the deceased. This premeditation and deliberation is necessary in both grades of murder, but in murder in the first degree it is not necessary to exist for any length of time, but it is sufficient if it was the intention of the party to take life. In murder in the second degree the distinguishing line would be if the party at the time he fired the shot did not have the intention to take life — that would be murder in the second degree, and if the intent was there a moment before the killing or the shot was fired, he would be guilty of murder in the first degree.”
It is contended by counsel for defendant that this instruction does not properly state the law, and that the defendant was prejudiced by the court giving it. They insist that the instruction told the jury that there was practically no difference between murder in the first degree and murder in -the second degree. The instruction is loosely drawn, and the court should have not told the jury that the distinction between murder in the first and second degrees is a very dim line; but we do not think the court’s action was prejudicial to the rights of the defendant. All the instructions in the case are to be considered together. Under our statute, one of the main distinctions between murder in the first degree and murder in the second degree, is that to make out the crime of murder in the first degree a specific intent to take life must be shown. Petty v. State, 76 Ark. 515; Byrd v. State, Ib. 286. So that it will be seen that the leading characteristics of murder in the second degree are the presence of malice, distinguishing if from manslaughter, and the absence of premeditation or deliberation. In other instructions, the court told the jury what was necessary to constitute murder in the first degree, and instructed them fully as to the distinction between murder in the first degree and murder in the second degree. The law does not undertake to set any limit to the time which must elapse between the formation of an intent to kill and the consummation in the homicide.. In the case of Bivens v. State, 11 Ark. 455, the court, in discussing what is necessary to constitute murder in the iirst degree, said:
“It is indispensable then in such cases that the evidence should show that the killing with malice was preceded by a clearly formed design to kill — a clear intent to take life. It is not, however, indispensable that this premeditated design to kill should have existed in the mind of the slayer for any particular length of time before the killing. Premeditation has no definite legal limits, and therefore if the design to kill was but the conception of a moment, but was the result of deliberation and premeditation, reason being upon its throne, that is altogether sufficient, and it is only necessary that the premeditated intention to' kill should have actually existed as a cause determinedly fixed on before the act of killing was done, and was not brought about by provocation received at the time of the act, or so recently before as not to afford time for reflection.”
From the principles above announced, it will be seen that the court erred in telling the jury that premeditation and deliberation are necessary in both degrees of murder, but this error was not prejudicial to the rights of the defendant. It will be noted that the court told the jury that the distinguishing line between the two degrees would be that, if the defendant at the time he fired the shot did not have the intention to take life, he would be guilty of murder in the second degree, but that if he had the specific intention to take life at the time he killed the deceased, and if the killing was done after premeditation and deliberation, he would be guilty of murder in the first degree. The jury found the defendant guilty of murder in the first degree, and necessarily found that the killing was done after premeditation and deliberation, and, so finding, the instruction was not prejudicial to the rights of the defendant. Beene v. State, 79 Ark. 460.
It is next insisted that the court erred in admitting the statement of the defendant, made while he was incarcerated in jail after the killing, that he was going to play crazy and try to get bond. The defense of the defendant was that he was insane at the time the homicide was committed. The question of his sanity or insanity at the time of the killing was one of fact for the jury to determine, and the statement was competent for whatever the jury might consider it to be worth, as tending to shed light upon his mental condition at the time the killing occurred.
Statements or declarations by the accused before and after the commission of a crime, although not amounting to a confession, but from which, in connection with other evidence of surrounding circumstances, an inference of guilt might be drawn, are admissible against the defendant as admissions. 12 Cyc. 418.
Finally, it is contended by counsel for defendant that the court erred in refusing him a new trial because one of the jurors had been subjected to improper influences. On this question, the court heard the following evidence:
T. C. Merwin, testified: “I remember J. G. Taylor being in the office during the progress of the Andrew Reed trial. I asked something about what had been done in the case, what the jury was hung up about, and I don’t remember right now, but something was said about the trouble being the instructions of the judge, and about that time Mr. Taylor got up and went out. I can’t remember whether this was before the jury reported or not. I might have said something before Mr. Taylor went out about hanging the negro, but he was only there a few minutes the first time, and he went right out. After that I commenced talking about it.”
J. G. Taylor: “I heard something said about hanging the defendant and why the jury were so long in returning a verdict as I was going in the vault for a drink of water, but I don’t remember just what was said. The statement had no influence on me in my finding. I have not been influenced by anybody in any manner or way.
CROSS EXAMINATION.
“I did hear Mr. Merwin say something about Andrew Reed, but I got right up and went out. I stopped and told him that I was on the jury. (To the question, ‘You understood he was condemning Andrew Re,ed, did you not?’ objections sustained. Defendant expected). He said something to me effect that Reed ought to be hung. It was not long before I got away. I was going for some water any way.”
John Wydick: “I was in Mr. Merwin’s office at the time Mr. Taylor passed through there when the matter of Andrew Reed was being discussed. To the best of my memory Mr. Taylor had passed into the vault when Mr. Merwin expressed himself about this case. I don’t know how many times Mr. Taylor was in there; that the was only time that he said anything.”
We have abstracted all of the testimony that was introduced on this question, and it will be seen that the court was fully advised concerning all the matters alleged as improper influences to which the jurror was subjected, and that it was made to appear to the satisfaction of the court that the juror was not influenced by what he heard Merwin say. .The juror himself testified positively that the remarks made by Mr. Merwin in his presence did not have any influence upon him in arriving at a verdict. The witnesses on this point were examined in the presence of the court, and, the court having satisfied itself that the remarks made in the presence of the juror did not have any influence upon the mind of the juror in arriving at a verdict in the case, we do not think there was an abuse of discretion in denying the defendant’s motion for a new trial in this account.
Judgment will be affirmed. | [
-32,
-8,
-36,
-65,
43,
96,
40,
-40,
-80,
-29,
-29,
119,
111,
-53,
9,
57,
-79,
61,
85,
41,
-11,
-89,
59,
65,
-74,
-45,
-126,
-41,
55,
-49,
-2,
-1,
8,
-16,
-54,
-43,
-30,
10,
-27,
92,
-114,
-116,
-119,
97,
2,
82,
52,
118,
68,
11,
-27,
-114,
-77,
42,
23,
-61,
73,
40,
75,
61,
64,
56,
-118,
-115,
73,
6,
-77,
-89,
-100,
36,
-8,
44,
-103,
125,
0,
-24,
115,
-106,
-126,
84,
109,
9,
-84,
98,
82,
-95,
85,
-17,
32,
-103,
47,
103,
-99,
-89,
24,
64,
73,
6,
-74,
-1,
114,
116,
-90,
110,
100,
87,
89,
104,
24,
-41,
-106,
-109,
-19,
116,
-38,
-54,
-21,
-127,
16,
113,
-50,
34,
86,
69,
89,
-5,
-115,
-107
] |
Hart, J.
Appellee filed a complaint in the chancery court, in which he alleges that he is a contractor engaged in the construction of buildings in the city of Little Rock, and as such he contracted with the appellant, Royal Theater Company, to construct for it a certain building on a lot owned byM. B. Sanders and leased to the theater company; that, in pursuance of his contract, he furnished the material and labor, and erected said building; that on the 21st day of December, 1910, he filed a mechanic’s lien on said lot. He prays judgment for the amount sued on against both appellants, and asks that a lien therefor be declared on said lot.
Appellant, Royal Theater Company, filed an answer, denying the allegations on the complaint. M. B. Sanders did not file an answer.
The contract for the construction of the building was introduced in evidence, and it provided that the sum to be paid to the contractor for the work and materials should be $12,000. The contract also contained this further provision: “All work to be completed within ninety working days, no allowance made for inclement weather. For each day required to complete the building after this time,the‘contractor will pay the owner twenty dollars ($20) as liquidated damages, and for each day the work is completed before this time, the owner will pay the contractor a bonus of the same amount.”
The case was submitted to the chancellor upon the pleadings, and the following agreed statement of facts:
“It is hereby agreed that this cause may be submitted to the court upon the pleadings and upon the contract and the certificate of the architect making the settlement, and also upon the agreement that since the bringing of this suit the following sum has been paid upon the account sued upon, amounting to $300; that in making the final settlement the architect included in the amount fourteen days’ bonus at twenty dollars per day, making $280.
The plaintiff filed his mechanics’ lien against said property set out in the complaint within the time allowed by law. .
The chancellor found for appellee in the sum of $278.25, and decreed that a mechanics’ lien existed on said lot for said amount. The case is here on appeal.
A mechanics’ lien exists only by statute, and, the power to obtain a lien being given by the statute, no one can obtain a lien unless he comes within the provisions of the statute.
Section 4970 of Kirby’s Digest provides, in substance, that every mechanic, builder, artisan, workman, laborer or other person, who shall do or perform any work or labor upon or furnish any materials for any building, including contractors, subcontractors, material furnishers, mechanics and laborers, under or by virtue of any contract with the owner or proprietor thereof, upon complying with the provisions of this act, shall have a lien for his work or labor done or materials furnished. It will be observed that the statute only gives the contractor a lien for work done by him or materials furnished by him. The proof in the case shows that a certain sum of money is due appellee as contractor, but it does not show that this is a debt due him for services performed by him or for materials furnished by him. In other words, so far as the record discloses, the amount due appellee may represent all or a part of the profits made by him in erecting the building, and has no reference to materials furnished by him or labor or services performed by him. If so, appellee has no lien under the statute. The right to maintain the lien is found in the statute, and no one can obtain a lien unless he brings himself within the provision of the statute. Rockel on Mechanics’ Liens, § 48.
The allegations of the complaint were denied in the answer filed by the Royal Theater Company and the burden was on appellee to show that his claim came within the provisions of the statutes before he can assert a lien on the lot. Not having done so, it follows that the chancellor erred in decreeing a lien on the lot.
The case of Pratt v. Nakdimen, 99 Ark. 263, is not authority for the contention of appellee. There the contractor had abandoned his contract, and material men were asserting liens under the statute, and in adjusting their equities and in determining what amount should be prorated among the lienors it became necessary to ascertain the contract price of the building, but the case does not hold that liens can be asserted except for materials furnished or services performed as provided by the statute.
It is next insisted by counsel for appellant that the $280 allowed appellee by the architect was a bonus or gratuity for speeding the work of construction, and that it was not a part of the contract price under the terms of the contract. The views we have already expressed render it unnecessary to decide this contention because, as we have already seen, appellee has failed to establish that the amount sued for is such a claim as would entitle him to a lien, even if it be held to be a part of the contract price. For the same reason it is not necessary to decide whether appellee, if entitled to a lien, could assert it on the reversionary interest of Sanders in the lot, or merely on the leasehold estate of the Royal Theater Company.
Therefore, the chancellor erred in holding that a lien on the lot described in the complaint existed in favor of the appellee, and his decree in that respect is reversed, and the cause remanded with directions to deny the right of appellee to a lien on said lot.
The chancellor rendered a judgment in personam against the Royal Theater Company. No contention is made that the judgment is erroneous, and it is affirmed. An appeal bond was filed, and a supersedeas was issued. The bond is in the form provided by section 1218 of Kirby’s Digest, and by its terms includes the judgment in personam against the Royal Theater Company.
If appellants desired to stay proceedings on only a part of the judgment or decree, the terms of the bond should have been varied to that effect. Kirby’s Digest, § 1222.
The appellee is entitled to his judgment here under the statute on the supersedeas bond, and it is so ordered. | [
-16,
-22,
-36,
108,
-54,
104,
26,
24,
119,
1,
119,
95,
-19,
-58,
12,
101,
-93,
121,
116,
107,
69,
-78,
71,
98,
-46,
-77,
-13,
-43,
-72,
77,
-12,
86,
76,
16,
-54,
-99,
-122,
-62,
-59,
28,
14,
5,
11,
-20,
-39,
-31,
52,
106,
64,
75,
37,
-82,
-5,
40,
17,
75,
76,
46,
125,
57,
113,
-47,
-106,
21,
125,
5,
32,
71,
-100,
67,
-56,
28,
-104,
53,
2,
-23,
83,
-74,
-124,
116,
75,
-103,
8,
34,
98,
2,
-87,
-61,
-78,
-72,
7,
-12,
-115,
-89,
-77,
56,
43,
105,
-66,
-99,
121,
16,
7,
126,
-26,
-44,
93,
44,
11,
-50,
-16,
-29,
15,
96,
-98,
3,
-5,
9,
48,
96,
-49,
-94,
90,
103,
50,
-101,
7,
-87
] |
Frauenthal, J.,
(after stating the facts). The facts of these cases are identical in every essential particular, except one, with the facts of the case of Crenshaw v. State, 95 Ark. 464, in which a prosecution for the violation of this statute was considered and a conviction thereunder sustained. The particular in which these cases apparently differ from the Crenshaw case is that in the case at bar the vehicles were separately tagged with the names of the respective purchasers at the time they were placed on board the cars at Memphis, Tennessee. The vehicles, however, were loaded and transported in one shipment and consigned to the Spaulding Manufacturing Company at Jonesboro, where they were unloaded and thereafter delivered to the purchasers who, only after inspection and acceptance, received them. In the Crenshaw case, the ranges were not tagged or noted with the names of the purchasers at the time they were delivered to the common carrier at St. Louis.
We do not think that the tagging of the vehicles with the names of the persons executing orders therefor, under the facts adduced in these cases, distinguishes them from the Crenshaw case in any particular that would declare the evidence in these cases lacking in any ingredient essential to constitute a violation of this statute, or that it would make the shipment a subject-matter of interstate commerce any more than the shipment involved in the Crenshaw case. The gist of the offense created by this statute does not consist in making sales without license but in peddling without license. As is held in the case of Crenshaw v. State, supra, in order to constitute peddling, there must be the element of travelling from place to place, over and through the county, for the purpose of making sales. The statute does not declare it an offense to make sales, nor does it seek to impose a license fee or tax on sales, but only makes it an offense for one to go about from place to place, from residence to residence, in arid through the county in the prosecution of a wayfaring business, without procuring license, whether in making sales or in taking orders. As was said relative to a statute quite similar to this by the Supreme Court of the United States: “Its object in requiring peddlers to take out and pay for licenses and to exhibit their licenses on demand to any peace officer or to any citizen householder of the county appears to have been to protect the citizens of the State against the cheats and frauds and even thefts which, as the experience of ages has shown, are likely to attend itinerant and irresponsible peddling from place to place and from door to door.” Emert v. Missouri, 156 U. S. 296. This statute is directed at an itinerant occupation which may endanger the peace and safety of the citizens of the State, and not at a business which only involves the sale of property. It is but the exercise of the police power of the State, and, as was said in the above case of Emert v. Missouri, supra, “it is nowise repugnant to the power of Congress to regulate commerce among the several States, but is a valid exercise of the power of the State over persons in business within its borders.”
The question as to the place at which the sale was made and at which the title to the property passed is not essentially different in these cases from that involved in the Crenshaw case; because in these cases it was provided in the orders given by the prospective purchasers of the vehicles that they were purchased in effect upon condition that when the vehicles were delivered to them in Greene County they should be approved by them after an inspection and acceptance thereof. So that the sales were not really consummated until the purchasers actually had inspected and accepted the ‘vehicles in Greene County. The mere fact that the vehicles were tagged m the names of the prospective purchasers when the shipment was made at Memphis did not change 'the character of the act committed by these defendants, which consisted in going from house to house and residence to residence throughout the county in taking the orders, and thus in peddling. It is true that in the case of Crenshaw v. State, supra, the case of Rearick v. Pennsylvania, 203 U. S. 507, is referred to, and this court stated that the facts in that case differed from the Crenshaw case in that the ranges in the Crenshaw case were not tagged with the names of the purchasers. But the court did not base its opinion in that case upon the ground that the ranges were not tagged in the names of the purchasers, or that the Rearick case was decisive in event the ranges had been so tagged. It based its decision upon the ground that the act of peddling prohibited by this statute without license consisted in going about from place to place, over and through the county, for the purpose of making sales; that the statute regulating such acts was but the exercise of the police power of the State in protecting its citizens; that it in nowise affected interstate commerce or any business or thing which was the subject-matter of interstate commerce. We are of the opinion that the facts in the cases at bar are, in every essential particular, analagous to those in the Crenshaw case. In the Crenshaw case the constitutionality of this peddling statute, under similar facts and conditions, was upheld, and we see no reason for changing that decision.
It has been held by the Supreme Court of the United States that State statutes requiring that notes, otherwise negotiable instruments, the consideration for which is a patent right or patented article, should be executed in a prescribed manner or otherwise be invalid as negotiable paper or even void, are not in contravention of any provision of the Federal Constitution or of any power given to Congress to legislate relative to the subject-matter of such transactions. This ruling is based upon the ground that such State legislation is but the exercise of the police power of the State in the protection of its citizens against-fraud and imposition, which common experience has shown can be more easily perpetrated in cases where the sale of patent rights and patented articles is the subject-matter of the transaction. Allen v. Riley, 203 U. S. 347; Woods v. Carl, 203 U. S. 385; Ozan Lumber Co. v. Union County Bank, 207 U. S. 251.
In the latter case it is said: “The various itinerant venders of patented articles, whose fluency of speech and carelessness regarding the truth of their representations might almost be said to have become proverbial, were of course in the mind of the Legislature, and were included in this legislation. Indeed they are the principal people to be affected by it.” In the latter case the transaction involved a contract of sale concerning a matter which was the subject of interstate commerce; and while the question as to whether or not such State legislation relative to patent notes was affected by reason of the fact that the patented article sold was shipped in interstate commerce was not expressly passed on in the opinion rendered by the Federal Supreme Court, it does appear to have met the attention .of the United States Circuit Court of Appeals in that case, and is there noted. Union County Bank v. Ozan Lumber Co., 179 Fed. 710. But in those cases legislation of this character is recognized as a valid police regulation enacted by the State for the peace and security of its citizens. The peddling statute of this State, we think, is legislation of that character, and is for that reason valid.
The judgments are accordingly affirmed.
Wood, J., dissents. | [
-80,
-8,
-8,
60,
58,
-32,
42,
-102,
-110,
-85,
36,
19,
-19,
-64,
5,
113,
-21,
127,
113,
75,
-12,
-73,
103,
83,
114,
-73,
-53,
-57,
53,
75,
100,
-20,
94,
112,
-54,
93,
71,
66,
-59,
90,
-54,
40,
57,
105,
-8,
-47,
52,
-94,
64,
79,
97,
-113,
-127,
46,
30,
-61,
41,
44,
73,
41,
-64,
120,
-103,
95,
127,
6,
-125,
36,
-119,
1,
-24,
25,
-120,
49,
112,
-23,
115,
-74,
66,
-12,
109,
-103,
-120,
34,
39,
3,
1,
-123,
-20,
-120,
47,
-14,
-113,
-122,
24,
89,
3,
1,
-97,
-97,
94,
2,
12,
-6,
-2,
85,
29,
124,
15,
-49,
-74,
-95,
111,
115,
-50,
7,
-53,
71,
53,
67,
-58,
-10,
85,
69,
52,
-101,
14,
-43
] |
Mehaffy, J.
Paul Clayton was indicted, tried and convicted in the Howard Circuit Court for cansing an abortion. The indictment, omitting the formal part, reads as follows: “The said Paul Clayton in the county and State aforesaid, on the 30th day of June, 1932, did unlawfully and feloniously administer and prescribe to one Eunice Burk, a woman with child, before the period of quickening, a quantity of drugs and medicine with intent then and there and thereby to produce an abortion, against the peace and dignity of the State of Arkansas.”
Mrs. Nona Burk, the mother of Eunice Burk, testified that Eunice was 17 years old at the time of her death. Paul Clayton was paying her attention. "Witness did not know that her daughter was sick until Saturday after she had gotten sick on Friday. She had left home and had gone to another daughter of witness at Center Point. Witness testified that she had physicians to attend her; that Paul Clayton came on .Sunday evening and brought some medicine. Dr. Roberts wrote a prescription, and Paul Clayton had it filled and brought it up there. Witness said that Clayton asked her if the doctor told her what he had written the prescription for, and witness told him that he had not. Clayton said yonr daughter has blood poison, and that he had some medicine that might do her good. He stayed all night, and said he would take her to the hospital. Her daughter said she was going to die. Did not see the medicine he fixed up, hut was in the room: when he attempted to give it to her. This was after the abortion had occurred. The medicine which was brought had been prescribed by Dr. Boberts and Dr. Storey. Witness did not know of any medicine that Clayton had there.
Veda Kelley, a sister of Eunice Burk, testified that she lived at Center Point in June and July; that Eunice Burk was her sister and 16 years old. Eunice died at witness’ home. She came there on the 7th day of June and died on the 17th of July. Paul Clayton came there while she was there and stayed ten or fifteen minutes. Eunice was in bed. He came up two weeks before she was taken sick and carried her off and was gone about an hour. He gave her some medicine on the porch and told her to take it if what he did didn’t do her any good. Witness saw him give her the ¡medicine; did not hear him say anything else. This was about two weeks before she got sick. Eunice left witness’ house and came back on June 7. She ate supper and went to bed. The foetus passed Saturday evening and night. Clayton stated that he was responsible for her condition. She was on the porch when Paul gave her the medicine, and witness was standing in the front room. She conld see them, but they could not see her. There was a little morphine tablet colored green and white abont the size of an aspirin tablet.. She got in a car and went off with Clayton about two weeks before she got sick. We went to see Dr. Storey. She came back on Friday and took her bed, and on Saturday evening gave birth to the child. Dr. Storey treated her about a week and then Dr. Boberts was called. They had a consultation and prepared the prescription, that is the medicine which Clayton brought up there. There was a bottle and some tablets Dr. Boberts prescribed. Clayton had some more.
Dr. Storey testified that fie fiad been practicing medicine for 27 years; fiad occasion to treat women with, child; was a graduate of the .School of Medicine of Memphis. Treated Eunice Burk on June 10 at his office. Examined her and found a mess or something- inside her womb and it was soft doughy, and made a vaginal examination and introduced a speculum and found there a condition of puss and bloody water coming from the womb ; took a syringe, washed it out and sterilized it with iodine. She was with child and the foetus was dead. He was called to see her Saturday and was back Monday, and the foetus had passed. In his opinion the foetus had been dead about a month or six weeks. There is a drug which will produce the death of the foetus. Witness continued to treat the girl until about two weeks before her death. Dr. Roberts and Dr. Chambers and his son were there. Witness testified that there is a drug which will produce an abortion, and that he could name and describe it. Witness had been treating Mrs. Kelley for two or three years, but saw Eunice Burk the first time on June 9. He had never treated Eunice before this time.
Mrs. Joe Head testified in substance that she had known Eunice Burk prior to her death; had known her about four weeks; that Mr. Sheffield carried her to the home, and she remained there until Eunice died. She went there on-Sunday, and part of the foetus was removed by Dr. Roberts and Dr. Chambers on Monday. Clayton came up there to bring some medicine which Dr. Roberts had prescribed. Clayton told witness he was responsible for the girl’s condition; he did not say he was responsible for the abortion. Witness is not a registered nurse.
Dr. Roberts testified that he lives in Nashville, and is a graduate of the University of Arkansas, and has practiced medicine 34 years; he was called to see Eunice Burk Sunday evening June 19, and found an incomplete abortion; administered to her for blood poisoning; went back Monday and made an examination and found that part of tire bones of the sknll had not passed and removed them; did not attend her any more. It is a very rare thing that medicine administered to a mother will canse abortion. There is a drng, supposed to be, when administered in enormous doses will produce an abortion, but the chances are it will kill the mother. If it causes sufficient pain to rupture the membrane, the foetus would die and pass out, and, if it did not pass out, it would become decomposed. If an abortion had been caused by the use of instruments and the foetus had failed to pass, a condition would be like witness found there. An abortion is usually done by dilating the mouth of the uterus and introducing instruments. Witness received information that the foetus passed about eight days before he performed the operation.
Dr. W. H. Chambers testified substantially to the same facts as the other physicians.
There was some evidence introduced as to the credibility of the witnesses.
Sheriff Wilson testified about making a search of the home of Roy Ferguson, where Eunice Burk’s mother lived.
Harold Cornish testified that he carried the mail from Dierks to Nashville, and that he remembered carrying Eunice Burk from Center Point to Dierks.
Dr. W. B. Simpson testified in substance that he lives in Nashville, been practicing medicine' 33 years; graduate of Tulane University, New Orleans; had treated women for female diseases; did not know of any drug which would cause an abortion. Medical science does not teach there is a drug that will cause an abortion. Any doctor knows that when a woman is four or five months pregnant there is no drug that will cause an abortion.
Mrs. Nora Burk was recalled and testified that she knew an abortion had been caused on her girl.
There was some evidence introduced by the State in rebuttal. The case is here on appeal.
There was a verdict of guilty fixing punishment of appellant at a fine of $50 and one year in the penitentiary, and judgment was entered accordingly.
Appellant first contends that tlie court erred in not granting his motion to require the State to elect upon which charge it would prosecute, that is, for procuring medicine or prescribing medicine. He alleges that the indictment charged two offenses, and cites and relies on Gramlich v. State, 135 Ark. 243, 204 S. W. 848. In that case appellant had been indicted for the crime of manufacturing intoxicating liquor and being interested in the manufacture of liquor. The court in that case, however, did not hold that the indictment charged two offenses, but held that it was not defective because it charged two offenses conjunctively. The indictment in the case at bar does not charge two offenses. It charges one offense, but charges that the crime was committed by administering and prescribing. It was proper to charge the offense as it is charged in this indictment, and proof of either administering or prescribing would sustain the charge. An indictment in the same language here used was upheld in the case of State v. Reed, 45 Ark. 333. One might be charged with administering and prescribing, and it might be shown in evidence that he did both. The statute provides that it shall be unlawful for any one to administer or prescribe any medicine, etc., and it was proper to charge the offense as having been committed by prescribing and administering.
It is next contended that the court erred in refusing to permit Dr. Storey to testify and to tell the name of the drug which would cause an abortion. The appellant could not have been prejudiced by failure to name the drug because all that he claims that he could have shown by other physicians is, that there is no such drug, and, if the physician had been permitted to name the drug, still the physician testifying for the appellant could only have said it could not produce it; but the appellant argues that, if witness had been permitted to answer the question telling the kind of medicine, he could have shown that this was different medicine from the kind which was used to cause an abortion, but his witnesses testified that there was no such drug, and therefore, if in their opinion there was no such drug, they could not have shown that the medicine named by the State’s doctors was different from the medicine which would produce abortion. The real question was whether there was such a drug, and the State’s witnesses testified that there is such a drug and the doctors testifying for appellant said that there was no such drug. We therefore think that the refusal of the court to permit the witness to state on cross-examination the name of the drug was not prejudicial.
Reversal is also urged on the ground that the court refused to let Mrs. Burk testify, or let the defendant show by her, that she had committed an affirmative act, and tried to conceal the matter of the abortion from the officers at the time it was inquired into, and it is argued that, if she did this, she was an accomplice. This testimony was urged by the defense for the purpose of proving that she was an accomplice. The record however shows that the question was asked, and the witness answered it, stating that she did not make the statements which she is asked if she made.
It is next urged that the court erred in refusing to permit appellant to show by Mrs. Burk that she tried to conceal the matter from the officers, and therefore was an accomplice. The record, however, shows that the attorney for appellant asked the following question: “I just want to get it in the record. We offer to show by this witness that she committed an affirmative act and tried to conceal the matter of the abortion from the officers.” The witness answered: “I did not do it.” There is therefore no evidence in'the record tending to show that Mrs. Burk was an accomplice. On the contrary, the evidence conclusively shows that she was not an accomplice.
The appellant next contends that the court erred in refusing to give certain instructions requested by him. Instruction No. 6 requested by appellant told the jury that the burden was upon the State to show1: (1) That the defendant did administer and prescribe medicine to cause Eunice Burk to have an abortion: (2) That it oc curred within Howard County within three years next of the day of the returning of the indictment. No error was committed by the court in refusing to give this instruction. The statute itself provides that it shall be unlawful for one to administer or prescribe. Therefore, if he did either, it would he a violation of the statute, and the burden was not on the State to show that he did both. Proof of either would be sufficient, and it would have been error to tell the jury that the State must prove both.
Instruction No. 2, given at the request of the State, correctly tells the jury that the State must show that he either administered or prescribed the medicine, and that it must have been done within three years prior to the finding of the indictment.
Instruction No. 7, requested by the appellant, stated that he could not bé convicted unless the evidence showed beyond a reasonable doubt that he was present at the time and place the alleged crime was committed, and assisting or ready and consenting to aid and abet the one who did commit the crime, etc. It was not necessary that appellant be present in order to commit the crime. The statute makes it unlawful for any person to prescribe or administer, and, of course, he could do this without being present. This court said: “The well-known meaning of these words, as given by any of the standard lexicographers, shows that the presence of defendant in person at the time the medicine is delivered to or taken by the prosecutrix is not necessarily contemplated. The conduct of the appellant in sending medicine used to bring about abortion to the prosecutrix to be taken by her and his direction to her in person or by letter, and how to take it come clearly within the meaning of the words ‘administer’ or ‘prescribe’ as used in the statute.” Burris v. State, 73 Ark. 453, 84 S. W. 723.
It is next contended by appellant that the court erred in refusing to give his instruction No. 9. That instruction told the jury that they must find the defendant not guilty if they found that the abortion was caused by the use of or employment of any instrument or other means except use of medicine. This instruction was erroneous, because, under the statute, if appellant either prescribed or administered the medicine, he would be guilty, although the medicine was never taken. As said in Burris v. State, supra, “if the defendant procured and gave or sent medicine or drugs to said Nela Burris with the intention of producing an abortion before the period of quickening, it is no defense that the medicine was not taken, or, if taken, that it failed to produce abortion or premature delivery.”
The appellant next complains because the court refused to give instructions No. 15 and No. 16 asked by him. These instructions were on the theory that Veda Kelley was an accomplice. There is no evidence in the record tending to show that she was an accomplice, and therefore there was no error in refusing to give these instructions.
Appellant urges a reversal on the ground that the evidence is not legally sufficient to sustain the verdict. It is argued that the evidence of Veda Kelley must be corroborated because she was an accomplice. If she were an accomplice that would be true, but we have already stated that there was no evidence tending to show that she was an accomplice.
It is finally contended that the judgment should be reversed on the ground of newly discovered evidence. Veda Kelley, a witness for the State, signed an affidavit repudiating some portions of her testimony given at the trial. She states that she did not see the defendant give her sister the medicine, and did not hear him make the statement she testified to in connection with giving her the medicine. She states in her affidavit that she was mistaken about seeing Paul Clayton give her sister the medicine and that she did not hear him make the above statement as testified in the trial. She does not state in her affidavit that any other part of the evidence given at the trial was not true. She testified at the trial that Clayton came up there two weeks before she was taken sick and carried her off and was gone about an hour. She testified at the trial that Clayton said he was responsible for the condition she was in; she also testified on cross-examination that she had told the attorney that all she knew about medicine was what her sister told her; that she was standing in the front room and they were at the steps; they could not see her but she could see them, and she testified on cross-examination that appellant brought the medicine up there; the medicine that was prescribed by Storey and Roberts.
Mrs. Joe Head also made affidavit about some statements that Veda Kelley had made to her, and that Veda Kelley had stated that certain testimony which she gave in the trial was untrue. We think there was sufficient evidence to justify a conviction without the statements of Veda Kelley, which she says in her affidavit were untrue, or rather she says she was mistaken. Of course, she could not have been mistaken, she either saw and heard what she testified to, or she did not see and hear those things.
Granting or denying a new trial on the ground of newly discovered evidence is largely within the discretion of the trial court; unless this discretion is manifestly abused, the cause will not be reversed for not granting a new trial on the ground of newly discovered evidence. This court said: “A material error or misstatement in the testimony of a witness for the prosecution may constitute grounds for a new trial. Where, therefore, it appears that on a new trial the witness will change his testimony to such an extent as to render probable a different verdict, the new trial will be granted; but recantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question whether a new- trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recant ation involves a confession of perjury.” Little v. State, 161 Ark. 245, 255, S. W. 892; 16 C. J. 1188.
We do not think the trial court abused its discretion, and the judgment is affirmed. | [
-80,
110,
-68,
-17,
42,
-62,
106,
10,
112,
-117,
112,
115,
-23,
-43,
69,
109,
42,
105,
68,
57,
-64,
-106,
17,
73,
50,
-37,
59,
-41,
-78,
-23,
-11,
-3,
85,
112,
-86,
5,
-62,
72,
-19,
30,
-106,
-86,
-21,
-16,
8,
-110,
48,
59,
-100,
47,
117,
-98,
-125,
-21,
118,
74,
13,
74,
95,
-82,
8,
-96,
-101,
-121,
-17,
82,
-96,
52,
-68,
-127,
-8,
124,
-40,
49,
8,
-4,
119,
-124,
-126,
100,
102,
9,
12,
102,
35,
106,
-51,
-23,
-88,
-119,
62,
-66,
12,
-82,
-103,
105,
9,
-116,
62,
-99,
100,
80,
30,
64,
-23,
-41,
125,
96,
34,
-117,
-110,
-95,
75,
-96,
-36,
-65,
-61,
109,
96,
85,
-123,
-30,
124,
69,
58,
-69,
-118,
-9
] |
Smith, J.
On June 14,1929, appellant, B. 0. Wilson, was granted a divorce from appellee. The decree recited that the parties had agreed upon the alimony to be paid and upon the division of their property. Pursuant to this settlement of the property rights made by the parties, it was decreed that- the wife, the defendant, be given the household goods, and that she he paid “the sum of $60 per month, the same to he paid the first day of each and every month until further orders of the chancery court * * and that she ££is to release and relinquish all her right, title and interest in and to any property, both personal and real, that the plaintiff has or holds.” The $60 was to he paid appellee for the support of herself .and her two minor children, a son and a daughter. The daughter is now 19 years old, and is married. The son, who .is younger, is in school.
Appellant paid the $60 each month until and including the month of August, 1930. Appellee made demand for the September payment on August 27,1930, at which time appellant called her attention to the changed condition of affairs, and suggested that he pay her only $40 per month from that date, on account of the marriage of their daughter. Appellee objected to the reduction, but appellant told her he would pay $40 or nothing, and would apply to the court to reduce the payments to that amount. Appellee then accepted the $40 and gave appellant a receipt for that amount as payment in full of the alimony due for September, and similar payments were made for the next succeeding eight or nine months. During all this time appellee protested to appellant against the reduction, and consulted an attorney, who advised her to wait awhile, as appellant might later pay the balance to avoid litigation. When appellant definitely declined to pay the $60, appellee caused a writ of garnishment to be issued, which tied up appellant’s wages. Appellant thereupon filed a motion to dismiss the garnishment, and for the modification of the decree awarding alimony. After hearing testimony, the court declined to quash the garnishment or to modify the decree, and this appeal is from that action.
Counsel for appellant contend that there was an accord and satisfaction, which bars appellee from claiming more than the $40 paid her, and cite cases holding that, where a check was tendered in full payment of a disputed claim, and was accepted by the payee with knowledge thereof, it becomes an accord and satisfaction. But we are of opinion that this principle does not control here. There was no disputed claim. The parties Lad agreed upon tLe sum to be paid monthly, and that agreement Lad been made a part of the decree of divorce, and this decree was then, and is even yet, in full force and effect. Appellant Lad the right to ask the court to modify the decree, and this he did, but to no effect. The decree imposed, and still imposes, the continuing duty on appellant to pay $60 each month. The court had the power to find, as it did find, that this order had not been, and should not be, modified, but was at all times, and is yet, in full force and effect. There was therefore no accord and satisfaction of the decree.
We affirm also the action of the court in refusing to reduce the amount of future payments. The testimony does show that appellant’s salary has been reduced, and that he has less income than he had when the divorce decree was rendered, and that the daughter, the oldest child, is married, as is also appellant himself; indeed, appellant married ten days after obtaining his divorce.
The chancellor had the power to modify the decree as to the amount of alimony to be paid; but we cannot say that his finding as to the reasonableness of the alimony is contrary to a clear preponderance of the evidence. Holmes v. Holmes, ante p. 251.
The oldest child is married, and appellee resides with her and pays half of the housekeeping expenses, as her son also resides with his sister. This son is still in school with an increased expense for his support as he has grown older, and appellee appears to be having as much {rouble living on her alimony as appellant and his present wife have living on his income, less the alimony.
The decree from which is this appeal appears to accord with principles of equity, and it is therefore affirmed. | [
-80,
108,
60,
109,
-38,
48,
-21,
-120,
114,
35,
55,
83,
-3,
86,
16,
105,
114,
105,
64,
106,
-47,
-77,
22,
64,
123,
-77,
-7,
-35,
-75,
-1,
-60,
-41,
77,
48,
-62,
-35,
102,
-110,
-63,
80,
14,
-122,
-119,
109,
-7,
66,
48,
115,
82,
79,
97,
-98,
-77,
45,
57,
112,
104,
46,
127,
57,
-64,
-32,
-102,
5,
127,
70,
-79,
53,
-34,
6,
72,
46,
-104,
49,
0,
-23,
50,
-90,
6,
116,
107,
-69,
8,
114,
102,
18,
101,
-3,
-104,
-104,
46,
-4,
-97,
-89,
-45,
120,
10,
105,
-66,
-103,
108,
20,
-97,
54,
-6,
-115,
13,
96,
11,
-114,
-108,
-95,
-115,
120,
-118,
-102,
-17,
-95,
33,
97,
-49,
-94,
92,
119,
123,
-109,
-58,
-119
] |
Smith, J.
Appellant was convicted nnder an indictment charging him with having been an accessory before the fact to the mnrder of Manley Jackson. The indictment charged Lige Dame and Earl Decker with the commission of the mnrder, and that appellant had advised and induced its commission.
Decker was pnt npon trial as a principal, and npon his conviction was given a life sentence in the penitentiary. This judgment was affirmed on the appeal to this court, and the theory of the State’s case was outlined in the opinion affirming that sentence. Decker v. State, 185 Ark. 1085, 51 S. W. (2d) 521.
It was the theory of the State that both appellant and Decker had urged Dame to kill Jackson, and Dame so testified, but the only testimony to the effect that appellant and Decker had conspired Avith each other to this end was that of Dame, to the effect that they had each urged him to kill Jackson shortly before he did so, but Dame did not testify that either of these men was present when the other made that suggestion.
Dame testified that he killed Jackson in response to the suggestions and urgings of both appellant and Decker, made by each in the absence of the other, and through the promise of appellant to pay him a thousand dollars to kill Jackson, and through fear on his part that he would be prosecuted for arson by appellant if he did not kill Jackson.
Dame testified that he agreed with Decker to kill Jackson on a particular Saturday night, and their plan was as follows: Jackson was the night marshal of Pocahontas and would he on duty during the night. Decker was to take Jackson into custody at about 3 a. m. and detain him at or near the public square until the arrival of Dame in an automobile, and Jackson was then to be forced into the car and carried out in the country and killed. This plan was carried into effect, and, as Dame drove away from the place where Decker had held Jackson in custody, Decker gave Dame the pistol with which he had been armed. About two miles out of town the oar was stopped, and Jackson was ordered to get out, and as he did so he stated to Dame, just before he was shot by Dame, that he knew Dame was killing him on account of Dame’s wife. Jackson was shot four times, and all of the shooting was done by Dame.
After the shooting both Dame and Decker were arrested and confined in the jail at Marion, but in separate cells. Dame testified that while so confined Decker wrote a note on some cigarette paper, which was passed to Dame, reading: “I will still die before I will tell it,” • and Dame wrote on the reverse side of the paper: ‘‘ So will I,” and passed the paper back to Decker’s cell. This testimonjr was offered at the trial of both Decker and appellant, but the paper was not produced at either trial. This testimony was competent as against Decker upon his trial, as he was an actor in the transaction. But it was not competent evidence at the trial from which this appeal comes, and its admission against appellant constituted prejudicial error. The alleg'ed conspiracy to kill Jackson had then been carried out. Appellant was not present when these notes were written and passed. The law is definitely settled that, where a criminal deed is done and the criminal enterprise of the conspirators is ended, the acts or declarations of one conspirator are thereafter inadmissible against his co-conspirator. The case of Counts v. State, 120 Ark. 462, 179 S. W. 662, collects and cites a number of earlier 'cases to this effect. The later case of Hammond v. State, 173 Ark. 685, 293 S. W. 714, cites later cases to the same effect.
After Dame’s arrest he made several conflicting statements about the killing. Two of these were made after he had been taken to the penitentiary, one oral and the other written. In both the statements made in the penitentiary Dame charged appellant with having conspired with him to kill Jackson. These confessions made in the penitentiary were admitted in evidence over appellant ’s objection, and we think their admission was error for the same reason that the admission of the notes written on the cigarette paper was erroneous. Nor was it competent to support the testimony of Dame given at appellant’s trial by proving that Dame had previously made similar statements.
We are also of the opinion that the testimony tending to corroborate that of Dame is not sufficient to meet the requirements of the law in this respect. The -leading cases in this State on the sufficiency of the corroboration of the testimony of an accomplice were cited in the recent case, Roath v. State, 185 Ark. 1039, 50 S. W. (2d) 985.
The testimony, which is recited in the brief of the Attorney G-eneral as being corroborative of that of Dame connecting appellant with the commission of the murder, is to the following effect: Dame testified that appellant was the marshal of the town of Pocahontas, and that he protected him from arrest for selling liquor, and would advise him when raids were to be made on Dame’s house, where liquor was kept to be sold unlawfully. This information was conveyed by certain signals which appellant would make with his hands. It appears, however, that Dame had been frequently fined, and that he was under a penitentiary sentence for selling liquor at the time of the killing.
A former sheriff of the county testified that appellant was with him on numerous raids upon Dame’s home, and that they uniformly found no liquor. In this connection, the sheriff testified as follows: “Q. Do you remember at least on two occasions that when yon suggested that yon go and wait for Dame so that yon could catch him with liquor that John Slayton told yon the weather was bad, and that there was no use to worry getting him as somebody else would sell it anyhow? Do you remember that? A. I don’t think it was that way. I said that I had heard Mr. Slayton say on one occasion (interrupted). Q. I haven’t asked you what you heard, but did you ask him about laying out, and he suggested that you would take cold, and that somebody else would sell it anyhow? A. Yes, sir, I will say he did. Q. He did that once? A. Yes, sir. Q. Did he do it twice? A. I wouldn’t say so. Q. Still yon didn’t think there was enough in that to arouse your suspicion? A. No, sir.”
The warden of the penitentiary was permitted to testify that both Dame and appellant related the same details concerning the burning of a house belonging to appellant. This house was burned some months before the killing, and Dame testified that he had burned the house to enable appellant to collect the insurance, and appellant promised him that, if he would kill Jackson, he would not only pay him a thousand dollars for doing so, but would also pay the promised reward for burning the house. Appellant admitted that he had burned a house to collect the insurance thereon, but denied that Dame had burned it.
The penitentiary warden testified that appellant said to him that he had never had any business or social relations with Dame, whereas appellant admitted at his trial that on one occasion he bought a shotgun from Dame for $5, and later bought another shotgun from Dame, the last purchase being made in a store where Dame was trying to sell or pawn the gun.
A Mrs. Meyers testified in behalf of the State that she had frequently seen appellant at Dame’s home. All of these visits were not social, however, as the witness stated that on some of these occasions appellant had searched Dame’s home.
A witness named Tiner testified that he had seen Dame’s wife with appellant in the latter’s car on more than one occasion.
The present sheriff testified that appellant had asked him to give Dame an extension of time to pay the balance due on a fine, and that he had done so. Appellant testified that he had merely communicated the request to the sheriff at Dame’s instance.
An attempt was made to show that ill will existed between appellant and Jackson. This testimony was to the effect that Jackson was a prospective candidate for town marshal, the position held by appellant. Jackson had not, however, announced his candidacy.
Mrs. Maggie Taylor testified that she had frequently seen a large pistol in a holster at appellant’s home, and had seen it there as late as November 4 or 5,1931. Jackson was killed on the morning of November 8, 1931.
Deceased was killed with a .45 caliber pistol, and the father of deceased testified that on the afternoon of the day when his son had been killed appellant came to him wringing his hands and had stated that he was glad he had disposed of his .45 caliber pistol. This witness also testified that he later saw appellant, Dame and Decker talking together on a street of the town during the afternoon following the killing. Appellant expressed the opinion to deceased’s father that the killing had not been committed by a resident of the community, but by some one who had stolen an automobile which was recovered on the morning of the killing about sixteen miles from the scene thereof.
The deputy prosecuting attorney testified that he was present and heard the conversation between appellant and the father of deceased, and that appellant stated the murder was an awful thing, and that he was glad he had got rid of that .45 of his, and that he had let a man named Davidson have the pistol sometime prior to that. Dame had testified that he obtained the pistol with which he killed Jackson from Decker.
There was also testimony to the effect that appellant and deceased had disagreed about the disposition of fines in certain cases in which they had been jointly interested in making the arrests, and that appellant had said to deceased that they could not work together in view of the deceased’s contention, but the matter was submitted to the mayor, who took appellant’s view of the matter.
There are certain other circumstances not mentioned in the brief of the Attorney General which we regard as too unimportant to mention.
There are explanations of the circumstances above detailed which we do not enlarge upon for the reason that the circumstances related do not supply that corroboration which the law requires to sustain a conviction upon the evidence of an accomplice.
We affirmed the Decker case, swpra, upon the finding by us that the corroboration there recited was legally sufficient. That was a close case, but there were significant circumstances present there which are absent here, chief of which are these: The purchase by Decker shortly before the killing of cartridges similar to those found near Jackson’s body. The fact that Decker had told of the killing before it was known in Pocahontas. Decker’s remark to one Alphin that if he knew anything (about the killing) he had better keep his d-mouth shut, and certain other statements of a similar nature.
For the lack of sufficient corroboration, and for the error in admitting the testimony as above set forth, the judgment must be reversed, and it is so ordered, and the cause will be remanded for a new trial. | [
48,
-21,
-11,
-65,
58,
96,
8,
-72,
-29,
-62,
-12,
83,
-19,
6,
1,
57,
43,
125,
84,
105,
-124,
-109,
15,
-29,
-110,
-77,
121,
-35,
55,
76,
-84,
-44,
13,
112,
66,
89,
38,
10,
-51,
88,
-50,
-95,
-87,
-32,
48,
-126,
52,
107,
20,
78,
101,
47,
-22,
46,
92,
-53,
77,
46,
75,
-85,
80,
112,
-54,
5,
-51,
20,
-77,
-93,
-98,
3,
-40,
46,
-104,
49,
1,
-8,
115,
-106,
2,
-44,
105,
-103,
12,
98,
98,
41,
-35,
-51,
-96,
-40,
46,
62,
-99,
-89,
24,
73,
11,
-19,
-66,
-35,
107,
52,
-114,
-28,
-29,
77,
17,
104,
5,
-34,
-44,
-95,
-51,
116,
-34,
19,
-29,
53,
32,
112,
-51,
-22,
92,
69,
115,
-101,
-105,
-47
] |
Frauenthal, J.
This is an action instituted by the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for an excessive levy made upon its property under an execution against it. The complaint in substance alleged that the defendant Frank Andrews on November 15, 1910, recovered judgment against it before a justice of the peace of Omaha Township in Boone County for the sum of $20.75, and on November 30, 1910, sued out an execution thereon and placed same in the hands of defendant, J. C. Hampton, who was constable of said township; that the constable, under said execution, levied upon a locomotive engine owned by the plaintiff, and that such levy was made at the advice of said Andrews. It was further ■ alleged that the engine was of the value of $15,000, and that plaintiff owned other personal property in said township, consisting of office furniture, railroad ties, handcars and tools of the value of $500 out of which the execution could have been made. It alleged that the constable wrongfully and in violation of his duty levied the execution upon said engine, which was then in use by plaintiff, and denied plaintiff the use of it for eight hours, and that the constable and said judgment-creditor advising the levy thereby became “wilful trespassers and liable to plaintiff for all damages suffered in consequence of such unlawful and excessive levy,” which it laid at $500. It also alleged that the execution was paid in full on December 2, 1910.
To this complaint the defendant filed a demurrer upon the ground that it did not state facts sufficient to constitute a cause of action. Upon the hearing of the demurrer the court found that the complaint was defective in this: “that it fails to allege that the plaintiff, the judgment-debtor, against whom said execution was issued, selected what property should be sold, * * * or that the constable had knowledge of other property belonging to said judgment-debtor that might be levied upon besides said engine.” It thereupon sustained said demurrer, and, the plaintiff refusing to plead further, the complaint was dismissed.
The cause of action in this case is based upon an excessive levy made by a constable upon plaintiff's property under writ of execution sued out upon a judgment recovered against it. No question is made attacking the legality of the judgment or execution or the validity of the levy, except that it was excessive. It is the duty of an officer, when an execution is placed in his hands, to levy same upon property owned by the defendant within his jurisdiction sufficient to satisfy the execution and all proper fees and costs. In determining what amount of property is sufficient .out of which to secure satisfaction of the execution the officer is left to exercise his own judgment. He is not controlled in his discretion as to the amount of property that should be levied upon, either by the judgment-creditor or debtor. In determining what amount of property is sufficient to levy upon to satisfy the execution, the officer is required to exercise the care and diligence which a reasonably prudent man would exercise under like conditions and circumstances, endeavoring to obtain sufficient property to satisfy the execu tion and yet not making an unreasonable and unnecessary levy. In the case of Lawson v. State, 10 Ark. 28, this court declared the duty and liability of an officer into whose hands an execution had been placed for service as follows: “In obedience to the command of the writ, he should without delay levy on property sufficient to satisfy the debt and costs. In determining what is a sufficient levy for that purpose, he is left to exercise his own judgment free from the restraint or control of either the plaintiff or defendant, and is accountable to the plaintiff on the one hand if he fails to levy on as much as a reasonably prudent man would deem sufficient for that purpose (if so much is to be found within his legal grasp), and on the other hand to the defendant for an unreasonable and unnecessary levy on his property.” An officer charged with the execution of final process should levy at once on- property owned by the defendant within his jurisdiction sufficient to satisfy it. While on the one hand he should avoid making an inadequate levy, and on the other hand avoid making an excessive levy, yet he must not fail to make a levy if he finds property within his jurisdiction which is owned by the judgment-debtor, even though such property may be in value largely in excess of the debt, if he knows of no other property owned by the defendant within his jurisdiction upon which to make the levy. Haynes v. Tunstall, 5 Ark. 680; 2 Freeman on Execution, § 253. He is liable for a violation of his duty if he makes an excessive levy; but he is also liable if he fails to make a levy on property owned by the defendant in his jurisdiction. When the property owned by the defendant is of such character that it can not be separated, the officer must make a levy upon it, even though it may be of a value largely in excess of the judgment debt, in event he-has no knowledge of any other'property owned by the defendant within his jurisdiction. Under such circumstances it can not be said that such levy is excessive. The basis of the cause of action against an officer for an excessive levy is that he is a trespasser and can not set up a legal warrant for his action. He becomes a trespasser although acting under process, when he exceeds or abuses the authority given by such process. Before, however, he can be said to have exceeded or abused such authority, it must be shown that he acted oppressively or that he intended to do the defendant a wrong under authority of the writ in his hands. This may be shown by proof that the amount of the property levied upon was unreasonable and unnecessary; but it can not be said that such levy is unreasonable or unnecessary, no matter how great the value of the property may be, if the judgment-debtor owned no other property within his jurisdiction upon which a levy could be made by the officer holding the execution. The officer, can not be held liable for the excessive levy unless he knows that the defendant owns other property within his jurisdiction upon which such execution can be levied and out of which the judgment debt could be made. In the case of Davis v. Webster, 59 N. H. 471, it is said: “To make an officer a trespasser for exceeding or abusing his authority, he must be shown to have committed acts which persons of ordinary care and prudence would not under like' circumstances have committed, and made such a departure from duty as to warrant the conclusion that he intended from the first to do wrong and used his legal authority as a cover for an illegal act. ”
By section 3230 of Kirby’s- Digest it is provided: “The person against whom any execution may be issued may select what property, real or personal, shall be sold to satisfy the same; and, if he give to the officer a list of the property so selected, sufficient to satisfy such execution, the officer shall levy upon such property, and no other, if it be sufficient, in his opinion, to satisfy such execution, and, if not, then upon such additional property as shall be sufficient. ” This statute gives to the judgment-debtor the privilege of selecting the property which" the officer shall levy on, if it is sufficient to satisfy the execution. A failure, however, by the judgment-debtor to select the property to be levied upon will not justify the officer in making an excessive levy. If the officer refuses to levy upon the property selected by the judgment-debtor, or if he makes an excessive levy, he violates in either event his duty, and is liable for such special damages as the defendant may incur thereby. Barfield v. Barfield, 77 Ga. 83; Commonwealth v. Lightfoot, 7 B. Mon. 298; French v. Snyder, 30 Ill. 339. The presumption is that the officer acts in good faith, and the burden devolves upon the plaintiff to show that he has violated his duty. Closson v. Morrison, 47 N. H. 482. In order to show this, it is necessary to allege and prove, not only that the property levied upon was excessive, but also that the officer knew that the defendant owned other property within his jurisdiction upon which the execution could have been levied and of sufficient amount to satisfy it. The lower court found that the complaint was defective for the reason, amongst other things, that it did not allege that the officer had knowledge of other property belonging to-said judgment-debtor that might be levied upon besides said engine, and for that reason, among others, held that the demurrer should.be sustained. The plaintiff refused to amend its .complaint by making this allegation. This allegation, we do not think, can be reasonably inferred from the other allegation made in the complaint. Whether we consider the action of the court' as a ruling that the complaint should be made more definite and certain in this particular, or as a ruling that the complaint was demurrable on this account, in either event the plaintiff refused to correct the complaint, which, we think, was defective in this regard. The court, therefore, did not err in dismissing the complaint, which, by reason of this defect, did. not state a cause of action. The judgment is affirmed.
. Hart, J., dissents. | [
-12,
-4,
-102,
-99,
106,
-32,
42,
-110,
81,
-47,
-92,
87,
-49,
-31,
0,
37,
-25,
121,
113,
107,
64,
-73,
23,
51,
-46,
-77,
-15,
-57,
-75,
77,
-26,
-30,
13,
32,
75,
93,
-60,
96,
-59,
90,
-114,
40,
-19,
-28,
-39,
88,
48,
123,
21,
79,
49,
-114,
-2,
46,
20,
74,
73,
42,
-19,
-87,
-47,
-14,
-70,
-35,
59,
18,
33,
2,
-100,
3,
-38,
58,
-104,
53,
18,
-8,
115,
-90,
-126,
-44,
33,
-119,
-116,
102,
38,
83,
21,
-81,
-72,
-120,
46,
-73,
-99,
7,
-96,
105,
115,
-19,
-66,
-99,
84,
23,
-105,
126,
-20,
5,
89,
44,
3,
-50,
-76,
-62,
-81,
-28,
-98,
7,
-5,
-103,
52,
112,
-116,
-110,
92,
7,
123,
-101,
-57,
-35
] |
Frauenthal, J.
The defendant, John Ray, was tried and convicted under an indictment charging him with the crime of accessory before the fact to murder in the first degree. The indictment is as follows:
“The grand jury of Miller County, in the name and by the authority of the State of Arkansas, accuse John Ray of the crime of accessory before the fact to murder in the first degree committed as follows, towit: that Will Hunter, in the county and State aforesaid on the 18th day of May, 1911, unlawfully, wilfully, feloniously with malice aforethought, with deliberation and premeditation, did kill and murder one William W. Hunter with a certain gun then and there loaded with powder and leaden balls and shot, and that the said John Ray in the county and State aforesaid on the 17th day of May, 1911, before the said murder was committed in form aforesaid, unlawfully, wilfully and feloniously did advise and encourage the said Will Hunter to do and commit the murder in manner and form aforesaid, against the peace and dignity of the State of Arkansas. ”
To this indictment the defendant interposed a demurrer, and asked that it be quashed upon the following grounds, amongst others:
1. Because the same is indefinite and uncertain in this, that it does not show the manner, method or means of the killing or how the gun was used — whether as a club, firearm or otherwise.
2. Because said indictment as a whole is so indefinite and uncertain that it does not apprise the defendant of the offense he is charged with or called upon to defend.
3. Because said indictment does not state facts sufficient to constitute a public offense.
In an indictment for the crime of-accessory before the fact, it is necessary that the indictment should allege the facts constituting the felony with the same degree of certainty and particularity as though the person who committed it were alone indicted. It is necessary to allege in such an indictment that the felony was committed by the principal. The accessory can not be guilty if the principal is not guilty; and he can be guilty of no other or higher grade of crime than that of which the principal is also guilty. The accessory before the fact to the crime is indicted as an accessory, but he is punished as a principal. He is in law a participant in the crime of the principal, though absent at the time of its commission. Kirby’s Digest, § 1561; Smith v. State, 37 Ark. 274; Williams v. State, 41 Ark. 173; Corley v. State, 50 Ark. 313. The guilt of the accessory before the fact is based and dependent upon the guilt of the principal; and if the principal has committed no crime, then the accessory is free from guilt. To charge an offense against the accessory, it is necessary to also charge an offense against the principal. The facts constituting the crime committed by the principal must, therefore, be set out with the same degree of certainty as though the principal were alone indicted. 1 Bishop, New Criminal Procedure, § 8; 1 Wharton’s Criminal Law, (10 ed.) § 238; Freel v. State, 21 Ark. 212; People v. Thrall, 50 Cal. 415; State v. King, 88 Minn. 175; Ulmer v. State, 14 Ind. 52.
By our Criminal Code it is provided that “the indictment must be direct and certain as regards, first,'the party charged; second, the offense charged; third, the county in which the offense was committed; and, fourth, the particular circumstances of the offense charged, where they are necessary to constitute a complete offense.” It is also provided that “the indictment must contain a statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” Kirby’s Digest, § § 2227 and 2243. In an in dictment for murder, the crime must be charged, and the manner of its commission must also be charged.
In the case of Thompson v. State, 26 Ark. 323, the court said: "It is a well established rule in criminal law that an indictment must contain such a description of the facts and circumstances as constitute the offense charged; that the person accused may be informed of the specific charge which he is called upon to answer, and the court and the jury the issue they are to try.” In that ease the indictment charged defendant with the crime of murder, and in stating the manner in which the offense was committed the indictment charged that the defendant did kill and murder the deceased "with a double-barreled shotgun, loaded with gunpowder and leaden bullets.” In passing upon the sufficiency of that indictment, the court held that it was fatally defective in failing to allege whether the killing was done by shooting or beating the deceased with the gun. After exhaustively discussing the necessity for alleging in such an indictment the manner of the killing with certainty, the court said: "In the indictment before us, there is nothing but the general and indefinite charge that the defendant killed and murdered deceased with a double-barreled shot gun, loaded with gunpowder and leaden bullets. The particular facts and circumstances of the killing, by which it might judicially appear that the same offense had been committed, and the accused be sufficiently informed of the true nature of the charge against him, so that he might be able to prepare for his defense, are not attempted to be set out.”
This case was followed and approved by this court in the case of Edwards v. State, 27 Ark. 493. In that case the court said: "In an indictment for murder, the gravamen consists in the killing, which may be distinctly stated, but the manner in which it was done omitted. The omission to do so may tend to prejudice the substantial rights of the accused on the merits, and so affect the judgment of conviction as to justify the court in reversing it on that ground alone.”
In the case of Dixon v. State, 29 Ark. 165, the decision in Thompson v. State, supra, was again approved, and in that case the court said, in referring to the case of Thompson v. State: "In that case the manner of killing was not shown; the indictment only alleged it to have been done ‘with a double- barreled shotgun, loaded with gunpowder and leaden bullets/ leaving it uncertain whether by shooting or beating — two modes so different that evidence of one would not be proof of the other.”
In the case of Haney v. State, 34 Ark. 263, a similar indictment was discussed and held fatally defective; and the decision in Thompson v. State was again approved by this court, through Mr. Justice Eakin, who rendered the opinion.
Since the above decision made in the case of Thompson v. State, this court has never departed from the principle therein announced, and has steadily approved and adhered to it whenever the question was presented to it for determination. It has steadily declared that in an indictment for murder the facts and circumstances showing the manner of the killing must be alleged with certainty, and that an indictment is fatally defective in failing to indicate the manner of the killing when it only alleges that the killing was done with a gun, but fails to allege that it was done by shooting or by beating the deceased with the gun, or in failing to state the manner in which the killing was done if it was done in a manner other than by shooting or beating.
It is urged that, according to the ordinary acceptation of the language used, when it is alleged that the killing was done with a gun loaded with powder and shot, it necessarily means that it was done by shooting with the gun. But this is not the ordinary or necessary meaning of such language. As was said by this court in the case of Dixon v. State, supra, such language in the indictment leaves it uncertain whether the killing was done by shooting or beating — two modes so materially different that evidence of one would not be proof of the other.
Whatever may be the views of the present members of the court relative to the question of the sufficiency of such an indictment, if it was now one of first impression; that question has been definitely determined by this court in the decisions referred to. The opinion declaring that such an indictment is fatally defective has been followed so often, and approved by this court in so many subsequent cases, that we do not think that any useful purpose would be subserved, or that the due and proper administration of the criminal laws of the State would be promoted, by now overruling the former decisions on this question.
It follows that the indictment in this case was fatally defective in failing to allege with certainty the manner of the killing. The case is remanded with directions to quash the indictment, and to hold the defendant for such action as the grand jury may take.
Kirby, J., dissents. | [
32,
-23,
-8,
30,
43,
-32,
40,
56,
-16,
-30,
-11,
118,
-19,
-54,
0,
49,
-23,
109,
85,
121,
-92,
-69,
39,
72,
-46,
51,
17,
-41,
18,
-54,
-18,
-33,
5,
96,
74,
85,
-59,
74,
-31,
88,
-122,
8,
-87,
112,
-45,
-64,
48,
55,
124,
15,
113,
-66,
-21,
42,
54,
-61,
105,
46,
79,
47,
64,
64,
-110,
77,
-23,
22,
-77,
-26,
-101,
1,
-40,
44,
-104,
53,
88,
-3,
123,
-108,
2,
-44,
105,
-103,
12,
102,
-94,
7,
125,
-83,
-88,
-127,
47,
99,
-103,
-89,
24,
65,
11,
13,
-98,
-99,
123,
52,
6,
106,
-27,
-59,
17,
104,
34,
-57,
-76,
-111,
77,
116,
-46,
51,
-21,
21,
112,
116,
-51,
-30,
88,
109,
113,
-101,
-113,
-59
] |
L. A. Byrne,
Special Judge, (after stating the facts). The records of this case present one main central question, to which all other questions to be considered naturally gravitate.
That question is, whether the act of 1909, by its terms, divested the Auditor of the State of all those official functions, judgments and discretions vested in him by the Constitution and laws ordinarily incident to his official duties, in respect to the subject-matter under consideration, and thereby left this official to perform merely a bare act of ministerial duty? Or did the Legislature by the passage of said act intend that the Auditor should retain his prerogatives and powers as the special chosen arbiter of the State to make the estimate and settlement with the appellee as to the amount legally due the estate of Urquhart, and, if necessary, issue his warrant for payment of same?
After a consideration of the whole of the subject-matter as presented by this record, if it should manifestly appear that in the passage of the act under consideration it was the legislative intent that this State official should be stripped of all official discretion and judgment relative to the State’s rights on all questions which had arisen or might arise in making a settlement under the contract of purchase of the land in question, irrespective of the justice or merits- of such demands, then this action is proper, and should be upheld.
If, upon the other hand, by a fair construction of said act, it can be reasonably inferred that the Legislature did not intend to take the whole matter from the Auditor and deprive him of the exercise of the functions of his office in making his estimates of the amount legally due under the contract of purchase, and he might refuse to issue his warrant for a sum demanded by the appellee which he believed was clearly illegal and unfair to the State, then under the law the Auditor would be justified in refusing the warrant demanded by the appellee, and this suit must fail, by reason of the well recognized rule of law, adhered to by both the Federal and State courts, that an officer of the executive branch of the government can not be controlled by the courts in the exercise and performance of his official acts, involving his judgment and discretion. When the courts are called on to review and control the official acts of an officer in a-co-ordinate branch of the government, they should proceed with extreme caution and circumspection, and the right of the courts to exercise this power should be manifestly clear and free from doubt and not made to depend upon uncertainties or the doubtful construction of a statute.
Having premised the consideration of this case, we will now pass to a discussion of the questions involved.
It is contended by the defendant, and made a part of his answer, that the Board of Commissioners of the Penitentiary, when they made and entered into the contract of purchase of the land in question, exceeded their authority in obligating the State to pay interest on the deferred payments, and for this reason the contract to pay six per cent, interest on the balance of the purchase money is to that extent void.
The act approved June 4, 1897, authorized said board to purchase or lease a farm or farms upon which to work State convicts, and to pay for the same out of the labor or product of any of the convicts, provided the board shall only apply such proceeds for the payment of said farm as are not actually needed for the support and maintenance of the State convict farm. The act further provides that said board is impowered to perform any and all acts necessary in the purchase or lease and equipping of said farm.
The contract for the purchase of the land in controversy was not made until November, 1902, whereby, according to the pleadings, the board bound the State to pay $140,000 for the land, $30,000 of which was paid in cash, and $110,000 to be paid at some future date or dates; but as to the maturity of this balance the records before us do not disclose. However, the records show there was a stipulation in the contract for the State to pay six per cent, interest per annum on this balance.
The appellee concedes in her brief that the State is not bound by the unauthorized acts of its agents in agreeing to pay interest, but contends; that “this authority may be expressed or implied.”
The court can not subscribe to this doctrine to its fullest extent. The General Assembly is the sole and supreme legislative power of the State, and that body has the inherent right to legislate upon all questions affecting the general welfare of her people, except in so far as it is restrained or limited by the Constitution.
The General Assembly has plenary powers to contract for and create interest-bearing indebtedness on the part of the State,' except to issue interest-bearing treasury warrants or scrip. But the authority to bind the State to the payment of interest on her indebtedness must be plainly expressed and not implied.
If the State could be bound to pay interest by implication, then, to extend a rule of this kind to its legitimate results, every debt of the State could or should draw interest.
It is well settled both upon principle and authority that a State can not be held to the payment of interest on her debts unless bound by an act of the Legislature or by a lawful contract of her executive officers made within the scope of their duly constituted authority. State v. Thompson, 10 Ark. 61; United States v. North Carolina, 136 U. S. 211; United States v. Sherman, 98 U. S. 565; Angarica v. Bayard, 127 U. S. 251; Wes tern & Atl. Rd. Co. v. State, 14 L. R. A. 438; Sawyer v. Colgan, 102 Cal. 283; Molineux v. State, 109 Cal. 378; Auditorial Board v. Arles, 15 Tex. 72.
The act under discussion is silent on the question of interest. In no part of the act is any mention made of interest or any authority given to the board to contract for the payment of interest.
It is a matter of universal custom with legislatures, which has grown into a common knowledge in the business world, that in the passage of laws authorizing the State, or any subdivision thereof, or any district therein, to make and issue any interest-bearing indebtedness, the act authorizing the same, without exception, fixes the rate, or the maximum rate, of interest the indebtedness should bear.
It therefore follows that, if the Legislature really intended to confer authority on the board in the purchase of the farm to bind the State to pay interest on the unmatured part of the debt, then in the exercise of ordinary wisdom they would have had the forethought to fix the rate, or the maximum rate, the same should bear, and hot turn the board loose with unlimited discretion in contracting for interest. Adopting the construction of the act, as the appellee would have us make, the board might have fixed any rate of interest emergency, as it seemed to them, might suggest, and fixed a much higher rate. This circumstance presents to us a very potential reason for believing that the Legislature did not intend that the board should bind the State by contract to pay interest on the deferred payments. It is therefore the opinion of this court that that part of said contract of purchase, in so far as it attempted to bind the State to the payment of interest, is invalid and not binding on the State.
But the appellee insists that, if the board was not authorized to contract for interest, its action in so doing was ratified by the subsequent action of the Legislature in the passage of the act approved May 31, 1909. In answer to this position, it must be conceded in the outset that the Legislature had the power and the right to extend the legal liability of the State in respect to the item of interest and to provide for its payment by appropriation of a fund for that purpose; but this must be done in the manner pointed out by the Constitution.
Prefacing what we may say upon this point, we assume that it has been clearly shown by principle and authority that the State was not bound by the contract to pay interest, and so much of that part of the contract was a nullity.
The parties to the contract will be held to a knowledge of •the law in respect to the same, and under this rule of the law the appellee’s testator knew he held a contract against the State which was void as to the interest feature. Therefore he had no legal demand against the State for the interest;and, if anything was paid in the shape of interest, it was in excess of what he could rightfully claim under the law.
Considering the question of interest from this viewpoint then, any money paid to him as interest would be a gift or donation, as it would be in excess of his legal demands.
The case of Molineux v. State, 109 Cal. 378, is a case very similar in principle to the one under consideration.
In 1851 certain Indian war bonds were issued under the authority of a statute. The bonds drew interest, which was evidenced by interest coupons. The plaintiff, Molineux, was the holder of a considerable amount of these interest coupons, which were long past due, having matured prior to September 1, 1856. On the 3d of March, 1894, he presented these coupons to the proper authority for allowance with a claim for legal interest from their maturity. This demand for interest on.the cqupons was rejected. The plaintiff sued the State, and secured judgment for the coupons and the legal interest. The State appealed.
It appears that in 1893 the Legislature of the State of California passed an act and the fifth section of the act reads as follows: “In case judgment be rendered for the plaintiff in any suit, it shall be for the amount actually due from the State to the plaintiff, with legal interest thereon from the time the obligation accrued.” And the plaintiff based his claim for interest on this statute, contending that under and by virtue of same he was entitled to interest on his coupons. But the Supreme Court of the State held, first, “that the State was not liable for interest on its debt, unless its consent to be so bound is manifested by an act of its Legislature, or by some lawful contract of its executive officers.”
The court further held that if the plaintiff was not le gaily entitled to interest on his claim (coupons), either by reason of the nature of the claim or the immunity of the State from an obligation to pay interest, then the latter statute did not authorize its recovery; and as there was no liability on the State, at the time, to pay interest on the coupons, there was no legal interest for which a recovery could be had, irrespective of the provisions of the statute itself. It was contended that the statute was retrospective, and by its terms included the right to recover interest from the maturity of the coupons, but the court met this contention with the proposition that the interest claimed was prior to the passage of the act; there was no obligation on the part of the State to pay, and for the Legislature to attempt to make provision for the payment of such claim would be making a gift or donation to the claimant, and, therefore, under the restrictions of the Constitution, this could not be done.”
If by the passage of the act approved May 31, 1909, the Legislature intended to fix the payment of interest on the contract made by the board, then this act must comply with the constitutional requirement.
By reference to section 26, art. 5, of the Constitution, we are confronted with this limitation:
“No extra compensation shall be made to any officers, agents, employee, or contractor after the services shall have been rendered, or the contract made; nor shall any money be appropriated or paid on any claim, the subject-matter of which shall not have been provided for by pre-existing laws, unless such compensation or claim be allowed by bill passed by two-thirds of the members elected to each branch of the General Assembly.”
It is a fixed rule of this court, of long duration, and well established, that in construing the legality of acts of the Legislature this court will take judicial knowledge of the recitals and records of the journals of both branches of the General Assembly to aid the court in determining the validity of any act.
Applying this rule to the question under consideration, we have resorted to and examined the journals of the General Assembly, and from these records we gather the facts attending the passage of the act approved May 31, 1909.
The bill for the act originated in the Senate as Senate Bill No. 237. This bill took its regular course in that body, and passed without a negative vote. Upon reaching the house the bill took its regular course, and was placed on third reading and final passage. The roll of the house being called, 54 members voted in the affirmative — 21 members in the negative, and 25 members were absent and not voting. (See House Journal of the session of 1909, page 887.) It necessarily follows that, the bill having failed to receive a two-thirds vote of all the members of the house elected as required by the Constitution, that part of the act attempting to appropriate a sum of money to pay interest for which the State was not legally bound is void.
Regardless of the validity or invalidity of the act under consideration, the records of this case presents another reason fatal to the maintenance of this suit.
The defendant sets up in his answer a partial failure of consideration — alleging that the deed tendered by the appellee contained more than 280 acres of land less than the amount sold and agreed to be conveyed by the terms of said contract, and for that reason he justified himself in refusing a warrant for the entire amount.
For the purpose of reaching a conclusion on the point presented, we must presume that this allegation is true.
Both the appellant and the appellee cite the court to the case of Jobe v. Urquhart, 98 Ark. 525.
An examination of that case will disclose the fact that this identical point, of the partial failure of consideration, was before the court in that case. In that suit the plaintiff, who is the plaintiff in this suit, filed her complaint in the Pulaski Chancery Court against the Board of Commissioners of the State Penitentiary, asking for reformation of the contract of purchase of the land in controversy, so as to show that the 280 acres of land which was short of the amount agreed to be conveyed was not in fact a part of the land embraced in the contract of purchase. The court held in that case that the suit, while against the Board of Commissioners of the Penitentiary, was in reality and in fact a suit against the State, and, regardless of the merits of the defense interposed, could not be upheld, and the suit was dismissed.
We are unable to draw any discrimination or distinction in principle between the case referred to and the one under consideration, in so far as the right to prosecute the suits and the jurisdiction of the court are concerned.
The appellee is trying to accomplish in this suit, by other methods and processes adopted, that which the court held could not be done in the former suit.
By referring to the act approved May 31, 1909, it will be seen that the Legislature directed the Auditor “to calculate the amount owing to the estate of E. Urquhart according to the terms of the contract between the Board of Penitentiary Commissioners and E. Urquhart and draw his warrant,” etc.
The amount of land agreed to be conveyed under the said contract is as much a part of the terms of the contract as the amount of money to be paid by the State; and when a deed was tendered the Auditor with a considerable portion of the land embraced in the contract omitted, he was not in a position to make a settlement with the appellee according to the terms of the contract as authorized or directed by the act.
As guardian of the rights of the State, as her auditing agent, in passing on claims and demands, the action of the Auditor in refusing to issue his warrant for the entire balance of the debt claimed by the appellee, with a material shortage of the land in the deed offered, was highly proper and justified under the law.
It was not within the province of the Auditor to pass on the equity or justice of the controversy, nor inquire into the fact whether or not this shortage of land was a result of a mistake made in the contract. It was his duty to pass on the face of the papers, and when he discovered this shortage of land in the deed to refuse his warrant and refer the matter back to the proper tribunal for determination and settlement.
It will be borne in mind that these proceedings are directed against the Auditor alone, while the suit in the-case of Jobe v. Urquhart, supra, was directed against the Board of Commissioners of the Penitentiary, of which the Auditor was a member.
It will be further observed that the Auditor, in so far as this case is concerned, is acting under the directions of the entire board, by virtue of a resolution passed by it, directing the Auditor to pay no further sums of money on the appellee’s debt; assigning, among other reasons for this action, the fact that there was a shortage of land contracted to be conveyed. Thereupon in effect the action of the Auditor in refusing the warrant is only a reflection of the action of the entire board; and, under the rule announced in the case of Pitcock v. State, 91 Ark. 527, and subsequently adhered to in the case of Jobe v. Urquhart, supra, this suit can not be maintained.
In the consideration of this case, it has been suggested, and pressed to the point of a contention, that the payment of interest by the State on the unmatured part of the debt was a part of the consideration to be paid for the land, and the State is morally bound to pay the interest, regardless of the legality or binding force of that part of the agreement.
■ In other words, the State should not be permitted to hold the land and refuse to pay the full consideration for same, and the courts should enforce the obligation.
This position is not tenable for several reasons. In the first place, as against the State, no one can acquire vested rights in a void contract. Ordinarily, all contracts with the State must rest upon some legislative enactment, or be specially provided for by law, and no agent or officer has the power to bind the State by contract independent of a special or general statute authorizing the same. In this respect the law governing the contracts of the State is different and not so general in its application as the law regulating contracts between individuals. A void contract is in legal effect no contract. By it no rights are divested. From it no rights can be obtained. The law treats the contract as a nudum pactum, and the courts can not.breathe life and vitality into a void contract, forsooth it may point to a moral. If contracts are to be enforced on bare moral obligations, regardless of their illegality under the law, but few contracts would escape enforcement. All contracts void for usury, contracts void as against public policy, and the like, would be subjected to the same enforcement, for like reasons.
In the next place, it does not lie within the province of the courts to speak for the State and determine and enforce her moral obligations. The courts are not the keepers of the conscience of the State. The honor and integrity of the State or sovereignty are lodged in the people — -her citizens and the subjects — and in turn the honor and integrity of her people are reflected through the Legislature of the State. The people or sovereignty speak by legislative enactment, and on all questions involving the moral obligation of the State, the Legislature is the sole and exclusive tribunal to determine and adjust such matters. Should any officers or agents in the executive branch of the government, by their acts, while in the exercise of their official discretion and duty, deny to any one their just and legal rights, an appeal can be taken for review by the legislative branch of the government to correct and redress the wrong.
In this case, if the State Auditor denied to the appellee any right which was hers to demand, the law has provided an appeal to the Legislature for review and redress. ■
Subdivision 1, of section 3401 of Kirby’s Digest defines the duties of the Auditor, and reads as follows:
“To audit, adjust and settle all claims against the State payable out of the treasury,” etc.
' Section 3408 provides: “That if any person interested shall be dissatisfied with the decision of the Auditor in any claim, account or credit, it shall be the duty of the Auditor at the request of such person to refer the same with the reasons of his decision to the General Assembly.”
The necessity that called for the above statute was doubtless predicated on the theory that the Auditor of the State is immune from interference in the performance of his official duties by the courts of the State,- and the suitor is by virtue of this statute remitted to the Legislature for redress.
Furthermore, it is a sufficient answer to this contention to call attention to the fact that the question of the State holding the land without a complete compliance with the contract made with the board of commissioners is not before this court for a decision on that point. The appellee is not seeking a cancellation of the contract on that ground. This question is not raised by the pleadings. She is attempting to enforce a provision in a contract with the State which the law declares invalid.
Should this court entertain this contention and throw itself into the breach for the purpose of deciding this question, it would be changing the whole purpose of the suit, and would be engaged in deciding a controversy between an individual and the State, in which controversy the State would be placed in the position of a defendant; and this could not be done without doing violence to that provision of the Constitution, which say: “The State shall never be made defendant in any of her courts.”
The moment this court turns to consider questions in this case, other than the mere bare right to a writ of mandamus as asked, that moment we would be crossing well-defined lines and venturing upon forbidden grounds; so it will be seen that, instead of paving the way for this court to take jurisdiction on these grounds, and determine these questions, it only emphasizes the position taken by the court that these questions properly belong to another tribunal for determination.
We have been ijnduced to go thoroughly into the history of this litigation, and review all the questions involved, under the apprehension that the Legislature would again be called in to pass on and adjust the rights of the State and the appellee under the contract in question; and, should the Legislature again pass on this controversy, it is to be hoped that it will do so in such plain and unmistakable terms as to leave no room for doubt.
For the reasons above assigned, it is the judgment of this court that the Pulaski Circuit Court erred in overruling the defendant’s demurrer to the plaintiff’s petition and in sustaining the plaintiff’s demurrer to the defendant’s response and answer. The judgment of the lower court is therefore reversed, and plaintiff’s petition is dismissed. | [
118,
124,
-36,
-84,
-86,
-32,
62,
-112,
67,
-77,
33,
-45,
-23,
66,
4,
97,
-30,
119,
84,
107,
68,
-13,
23,
65,
122,
-13,
-47,
-59,
-77,
111,
-6,
-1,
12,
42,
74,
85,
102,
75,
-63,
-44,
-114,
-87,
8,
-24,
-8,
84,
48,
81,
-109,
77,
97,
-50,
-29,
46,
24,
90,
-24,
44,
-37,
40,
-15,
-8,
62,
-116,
111,
1,
17,
39,
-66,
3,
-24,
15,
-104,
57,
-127,
-8,
123,
-90,
-122,
-10,
15,
-119,
40,
98,
32,
21,
101,
39,
-96,
-19,
47,
-85,
-113,
-89,
22,
88,
-21,
104,
-106,
-99,
124,
-48,
-121,
126,
-31,
-35,
-33,
38,
77,
-117,
-42,
-73,
14,
94,
-102,
18,
-5,
-93,
50,
113,
-122,
-31,
92,
103,
51,
27,
-50,
-64
] |
Minor W. Millwee, Associate Justice.
The issue here is whether a nonresident motorist is amenable to substituted service of process in this state under our nonresident motorist statute where the alleged cause of action arises out of an accident involving the nonresident’s automobile which occurred on private property adjacent to a public highway.
Appellant is an attendant at a service station located on private property adjacent to U. S. Highway No. 67 in Malvern, Arkansas. He brought this action for scalds and burns which he allegedly suffered while servicing the automobile of appellee, a nonresident motorist, at said service station. Substituted service was obtained on the Secretary of State as agent for appellee under our nonresident motorist statute [Act 199 of 1949] which now appears as Ark. Stats., Secs. 27-342.1 to 27-342.3. By special appearance, appellee moved to quash the service because the complaint showed on its face that the alleged cause of action did not occur upon the public highways; and that appellee was neither authorized to nor doing-business in Arkansas. This appeal is from the order of the Circuit Court sustaining the motion to quash.
In reference to the point at issue Sec. 27-342.1, supra, provides: . . the acceptance by a nonresident owner ... of the rights and privileges ... to drive or operate ... a motor vehicle upon the pub- lie highway of [this] state . . . shall be deemed equivalent to the appointment ... of the Secretary of the State of Arkansas . . . to be the true and lawful attorney and agent of such nonresident . . . upon.whom may be served all lawful process in any action . . . growing out of any accident or collision in - which said nonresident . . . may be involved while operating a motor vehicle on such highway .,; By Sec. 27-341.1 the term “Public Highways,” as used in the service statute, is defined to mean “. . . any public highway within the borders of the State of Arkansas including byways, county highways, highways in military reservations, whether used conditionally or unconditionally by the public. ’ ’ This is Section 1 of Act 417 of 1953, enacted following the decision in Camden v. Harris, 109 Fed. Supp. 311, which held the service statute did not apply to roads on U. S. Army posts or reservations.'
In Kerr, Administrator v. Greenstein, 213 Ark. 447, 212 S. W. 2d 1, we held that our nonresident motorist service statute is to be strictly construed because it is in derogation of the common law. "When the above mentioned statutes are so construed together, it is apparent that the Legislature intended that effective service of process may be had under the nonresident motorist statute when the nonresident is involved in an accident or collision while operating a motor vehicle on any public highway or byway in this state whether same be maintained by the county, state or United States, and whether used conditionally or unconditionally by the public. This has been the interpretation placed on similar statutes by the courts of other states.
In those jurisdictions with statutes like our own, the courts have uniformly held that valid service thereunder is limited to actions involving accidents or collisions which occur on the public highways and does not apply to accidents occurring on private property or growing out of the operation of the motor vehicle thereon. Pawloski v. Hess, 250 Mass. 22, 144 N. E. 760, 35 A. L. R. 945; Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 50 N. E. 2d 836, 148 A. L. R. 1208; Kelley v. Koetting, 164 Kan. 542, 190 P. 2d 361; Harris v. Hanson, (Idaho) 75 Fed. Supp. 481; Finn v. Schreiber, 35 Fed. Supp. 638.
The service statutes of some states are by their terms made applicable to any accident or collision in which the nonresident may be involved while operating a motor vehicle within the state. The courts of these states have held that service on the nonresident motorist under such statutes is valid even though the action involving the nonresident occurs on, or arises out of operation of the motor vehicle on, private property. Sipe v. Moyers, 353 Pa. 75, 44 A. 2d 263; Paduchik v. Mikoff, 158 Ohio St. 533, 110 N. E. 2d 562.
The New York statute originally read like our own and was construed in Finn v. Schreiber, supra, as not applicable to an action for injuries sustained by a filling station operator while inflating a tire on the truck of a nonresident defendant which was parked on the filling station lot, because such vehicle was not being operated on a “public highway” within the meaning of the service statute. This case was decided in 1940. But the New York Legislature in 1942 amended the statute by substituting the words, “in this state,” for the words, “on such a public highway, ’ ’ previously contained in the statute. The amended statute was held constitutional as a valid exercise of the police power in Leighton v. Roper, Admr., 300 N. Y. 434, 91 N. E. 2d 876, 18 A. L. R. 2d 537, where the court said: “When decedent came upon the highways of this State with his automobile, he subjected himself to our jurisdiction, and consented, while here, irrevocably to bind his legal representatives in an action arising out of any accident in this State in which his automobile was involved.”
It is clear that our statute is like the earlier New York statute and those involved in such cases as Brauer Machine & Supply Co. v. Parkhill Truck Co. and Harris v. Hanson, supra, and applies only to accidents or colli sions on a public highway, or arising out of the operation of a motor vehicle on a public highway. Until the Legislature sees fit to broaden its terms, our statute does not apply to accidents like that involved here, which occur upon, or arise out of the operation of a motor vehicle on, private property. The circuit judge correctly so held, and the judgment is affirmed. | [
-80,
-4,
-16,
-116,
73,
97,
18,
-116,
-45,
-29,
44,
-45,
-85,
-64,
29,
33,
-21,
-65,
113,
25,
-43,
-94,
87,
74,
82,
-109,
115,
71,
-122,
-39,
110,
-26,
76,
49,
-50,
-43,
4,
74,
-123,
-100,
-50,
32,
75,
104,
88,
-126,
48,
123,
84,
15,
49,
-97,
-61,
62,
25,
-58,
-23,
46,
75,
-81,
-40,
114,
-119,
29,
127,
4,
32,
100,
-104,
5,
96,
10,
-104,
-71,
16,
-8,
114,
-90,
-126,
-12,
103,
-103,
0,
-30,
98,
33,
17,
-29,
-20,
-88,
22,
-72,
13,
-122,
-8,
57,
43,
9,
-105,
-99,
107,
22,
76,
-8,
-2,
69,
82,
104,
7,
-118,
-76,
-95,
-51,
117,
60,
3,
-21,
71,
48,
116,
-50,
-10,
93,
71,
87,
-37,
-49,
-112
] |
J. Seaborn Holt, Associate Justice.
This litigation involves title to a 160-acre tract of land in the Southern District of Arkansas County. Appellant was the brother of appellee’s father, L. C. Haller, and claims title by virtue of a deed from L. C. Haller and wife, Ethel, in January 1924. A large part of the consideration in this deed was the assumption by appellant of a mortgage on the property held by the American Investment Company dated January 15, 1924. Appellee, Ralph Haller ( L. C. Haller’s son) primarily claimed title to the land and ownership by virtue of seven years adverse possession, and also that appellant had abandoned the property. On a trial the Chancellor upheld appellee’s contention. The decree recited: “The court finds that the defendant, Ralph Haller, is the owner of the lands in controversy heretofore set out, subject to an indebtedness due Mary H. Brown . . . The court further finds that plaintiff abandoned said property and any title, claim or interest which he might have had in the same, or any part thereof, and that he presently has no title, right, or interest therein in any way whatsoever and that the defendant has acquired title to this property by reason of said abandonment, and possession and payment of taxes for more than seven years.” . . . “The court fur ther finds that the defendant is not indebted to plaintiff in any sum . . .” This appeal followed.
After carefully reviewing the evidence, we have concluded that the findings of the trial court, that appellee acquired title by adverse possession, are not against a preponderance of the testimony. The preponderance of the evidence, in effect, shows that Ralph Haller, appellee, and his father before him, have been in possession of this land from the time it was purchased in 1917 at least up to 1944 and have claimed ownership up to the filing of the present suit, and they or the mortgagee have paid the taxes each year with the exception of 1924, 1925 and 1926 when they were paid by appellant. Appellant has never been in possession of the land. Ralph and his father lived on it, farmed it, cut and sold timber from it, pastured it, claimed it, the land was known as their land, they used it as their owrn, and have practically paid off the above mortgage. Appellant never collected any rentals or profits from the land and there was evidence that during the life of appellee’s father, appellant made the statement, and also told Ralph in 1946, that he, appellant, had no interest in the land, but should appellee decide to sell he would be interested in buying. Appellant, however, denied making any such statement. It appears that appellant stood idly by for approximately 30 years exercising no control, or ownership, over said land while at the same time appellee and his father before him were in undisputed possession openly, notoriously and adversely. In these circumstances the governing rule is stated in an opinion by Judge McCulloch, Tegarden v. Hurst, 123 Ark. 354, 185 S. W. 463. “We are also of the opinion that the evidence shows very clearly an intention on the part of Hurst to hold the land in hostility to any other claim, and that even if there was no right to reformation that Hurst’s occupancy ripened into a title by adverse possession for the statutory period. On that branch of the case, the defendants invoke the doctrine that where a grantor remains in possession, there is a presumption that he does so in subordination to the title he has granted, and not in hostility thereto. While that is true, there is an exception where the occu pancy continues unexplained for an unreasonable length of time and under those circumstances, the presumption is gradually overcome by lapse of time. American Building & Loan Association v. Warren, 101 Ark. 163, 141 S. W. 765. The fact that Hurst remained in undisputed possession of the land, openly and notoriously, for a period of fourteen years is sufficient to overcome the presumption that he was holding in subordination to his original grant. Such occupancy was, under the circumstances, sufficient notice to Tegarden as to the hostility of the possession.” See also St. L. Sw. Ry. Co. v. Fulkerson et al, 177 Ark. 723, 7 S. W. 2d 789; Davis v. Burford, 197 Ark. 965, 125 S. W. 2d 789, where on the evidence it was held that adverse possession for a period of 23 years was sufficient; Forrest v. Forrest, 208 Ark. 48, 184 S. W. 2d 902, where we held under the facts there that a period of 10 years was sufficient.
As indicated, we hold that the Chancellor was warranted in finding from the evidence that appellee’s possession had been of sufficient character to abate the presumption that they were occupying the land in subordination to the grant of Ealph’s father (L. C. Haller) and mother, and since appellee and his father held continuous possession of the land for approximately 30 years they have on the facts presented acquired title by adverse possession. Affirmed. | [
-11,
110,
-12,
62,
-72,
96,
106,
-102,
67,
-127,
39,
83,
-21,
-45,
0,
53,
-93,
57,
-11,
104,
-57,
-73,
55,
99,
80,
-13,
-37,
-59,
-72,
73,
-28,
-57,
12,
40,
-54,
87,
-62,
-96,
-59,
28,
-122,
4,
-101,
108,
-39,
96,
52,
-85,
86,
77,
53,
-74,
-13,
40,
61,
-29,
73,
45,
91,
41,
80,
-8,
-102,
12,
-33,
19,
-79,
116,
-88,
5,
72,
40,
-112,
113,
-116,
-6,
115,
-74,
-122,
84,
10,
-103,
8,
102,
103,
58,
101,
-17,
-88,
25,
14,
-69,
29,
-92,
19,
88,
-61,
10,
-66,
-99,
-40,
64,
70,
-2,
-18,
-123,
20,
108,
5,
-49,
-108,
-79,
-113,
-16,
-112,
3,
-13,
103,
-80,
113,
-49,
-30,
93,
71,
124,
59,
-114,
-111
] |
Sam Robinson, Associate Justice.
This is a personal injury case growing out of an autqmobile accident. Appellants, William Haag and Ms wife Patsy, filed suit for damages due to injuries sustained by Patsy while an occupant of an automobile driven by appellee Morgan. The complaint alleges that Morgan, while intoxicated and over the protests of Patsy, was driving the car at about 75 miles per hour and failed to negotiate a curve, thereby causing the car to overturn resulting in serious injuries to Patsy. In addition to a general denial, the defendant pleaded that Patsy was a guest in the car and further that she was guilty of contributory negligence. The jury returned a verdict for the defendant.
On several occasions before the accident, Morgan and Mrs. Haag had been together on drinking parties, and the evidence justifies the conclusion that on the day in question they were again on a mutual drinking spree. They had met about 10 o ’clock in the morning in a place called the Brass Rail, and had some beer. Morgan purchased additional beer which they took with them when they went riding in Morgan’s car. Later, after drinking the beer, they stopped at a Mrs. Wright’s and got some whiskey. Then they drove np to Missouri, returned to Arkansas, and obtained more whiskey. Patsy says she did not drink from the last bottle but only pretended to do so. The accident occurred sometime during that afternoon.
The court instructed the jury with reference to the guest statute, Ark. Stats., §§ 75-913-14-15. Appellants contend that the statute has no application here in that it only applies to self-invited guests, and that Mrs. Haag did not come within that category. Appellants further contend that there was error in the giving of certain instructions and the failure to give other instructions. No general objection was made to the giving of any of the instructions.
By Instruction No. 3 the court informed the jury as to the proof required in a guest case and defined willful negligence. Appellants requested that the instruction be changed to read ‘ ‘ self-invited guests. ’ ’ However, regardless of whether Mrs. Haag was a self-invited guest or had been invited by the operator of the car, the statute applies. Roberson v. Roberson, 193 Ark. 669, 101 S. W. 2d 961. Appellants also complain of the giving of an instruction submitting the issue of a joint adventure, but there was no objection to the instruction at the trial.
Instruction No. 2 given by the court read's as follows: “In order to recover the plaintiffs must show by a preponderance of the evidence that the defendant willfully and wantonly operated the automobile at' the time of the injuries and that such willful and wanton operation on' his part was the cause of the injuries. The burden of proof is on the defendant to show by a preponderance or greater weight of the evidence that there was a joint enterprise or adventure or that Patsy Haag was guilty of contributory negligence.” Appellants objected specifically that this instruction was a comment on the evidence, but we 'do not think it is subject to that construction.
We have carefully examined all of the points mentioned by appellants on appeal and find no error. The judgment is affirmed. | [
113,
-22,
-64,
-2,
41,
98,
58,
-102,
113,
-121,
-9,
19,
-23,
-63,
0,
43,
-29,
-1,
81,
107,
-43,
-93,
7,
64,
-14,
-109,
49,
-63,
-91,
74,
100,
-76,
77,
-96,
-50,
-43,
-58,
-53,
-51,
92,
-126,
4,
11,
112,
25,
-109,
52,
126,
6,
15,
97,
-97,
-53,
46,
27,
-49,
105,
108,
75,
61,
-47,
-16,
-55,
29,
123,
18,
-80,
36,
-34,
-91,
88,
24,
-100,
-79,
40,
-4,
114,
-90,
2,
-76,
109,
-101,
-124,
102,
118,
-95,
25,
-61,
-20,
-87,
47,
98,
29,
5,
-78,
73,
75,
9,
-73,
-99,
123,
16,
12,
-14,
-6,
85,
88,
104,
3,
-49,
-108,
-91,
-19,
49,
-12,
1,
-21,
-123,
52,
117,
-56,
-14,
92,
69,
115,
-101,
-50,
-106
] |
Sam Robinson, Associate Justice.
Appellee, Mrs. Stella Thomas, filed this suit attempting to establish a resulting trust in her favor in property previously conveyed to her husband, now deceased. The suit was filed on February 27, 1953. Appellants, non-residents of Arkansas, were named as defendants and were constructively summoned, but did not appear. On April 29, 1953, there was a decree sustaining Mrs. Thomas’ contention as to a resulting trust in the property in question. On November 17, 1954, appellants filed a motion for a new trial on authority of Ark. Stats., § 27-1907. The motion was overruled by the Chancellor and this appeal results.
Ark. Stats., § 27-1907, provides: “Where a judgment has been rendered against a defendant or defendants constructively summoned and who did not appear, such defendants or any one or more of them may at any time within two [2] years, and not thereafter, after the rendition of the judgment appear in open court and move to have the action retried,- and, security for the costs being given, such defendant or defendants shall be permitted to make defense, and thereupon the action shall be tried anew as to such defendant or defendants as if there had been no judgment, and upon the new trial the court may confirm, modify or set aside the former judgment and may order the plaintiff in the action to restore to any such defendant or defendants any money of such defendant or defendants paid to them under such judgment, or any property of such defendants obtained by the plaintiff under it and yet remaining in his possession and pay to the defendant the value of any property which may have been taken under an attachment in the action or under the judgment and not restored.”
Appellee, Mrs. Thomas, argues that the statute in question has no application here because the judgment is against the land. But, if the appellee does not own the land by reason of the trust she seeks to establish, appellants may own an interest therein. Therefore the decree in favor of the trust is, in effect, a judgment against appellants because they may have lost an interest in the land as a result of the decree which they seek to set aside.
Appellee relies on Wilson v. Sadler, 136 Ark. 415, 206 S. W. 754, but this case is not in point as it deals with confirmation of tax titles, a special statutory proceeding governed by the act itself. Gleason v. Boone, 123 Ark. 523, 185 S. W. 1093, holds that a foreclosure sale will not be set aside where the defendant has been constructively summoned, but that decision is based on the proposition that the judgment will not be set aside pending a hearing on the motion for a hew trial, and there is no redemption' from the sale under the order of foreclosure.
Howard v. Howard, 152 Ark. 387, 238 S. W. 604, was a suit by a AvidoAV to establish a resulting trust. The- defendants were non-residents constructively summoned, and a new trial was granted without question. There is no reason Avhy the statute should not apply to the case at bar.
Reversed. | [
118,
-20,
-12,
44,
-53,
96,
50,
-73,
67,
-94,
39,
83,
-83,
-54,
16,
45,
64,
105,
117,
104,
-42,
-73,
7,
65,
114,
-13,
-39,
93,
-75,
93,
-26,
-42,
76,
48,
-54,
-43,
70,
-22,
-53,
90,
-114,
-118,
10,
101,
89,
-64,
48,
-25,
86,
7,
113,
-66,
-5,
-87,
57,
-53,
104,
44,
75,
-75,
88,
-72,
-118,
68,
127,
23,
49,
37,
-110,
7,
120,
42,
-112,
49,
0,
-56,
115,
-74,
2,
84,
75,
-103,
8,
118,
98,
1,
4,
-25,
-104,
-120,
6,
118,
13,
-121,
-46,
104,
67,
107,
-65,
-99,
127,
20,
-58,
-10,
-2,
-115,
80,
44,
35,
-49,
-42,
-95,
39,
120,
-112,
3,
-29,
33,
48,
113,
-52,
-32,
93,
71,
83,
-101,
-114,
-76
] |
Ed. F. McFaddin, Associate Justice.
The question posed is whether the appellant is barred from maintaining the present action because of previous litigation. The Trial Court answered the question in the affirmative and dismissed the complaint. This appeal ensued.
On November 3, 1954, Mrs. Eea Howell Davis, as administratrix of the estate of her husband, James Henry Davis, filed this present action in the Pulaski Circuit Court against Jerry T. Perryman, as sole defendant. The complaint alleged, inter alia, that on November 11, 1952, the said James Henry Davis was killed in a traffic collision between his car and a truck of the East Texas Motor Freight Lines, then driven by the defendant, Perryman, as servant of said East Texas Motor Freight Lines; that James Henry Davis was free of all negligence and that the collision occurred entirely because of the fault and negligence of the defendant, Perryman, against whom damages were prayed. In due time, the defendant filed his motion to dismiss, as follows:
“. . . on January 30, 1954, Eea Howell Davis, Administratrix of the Estate of James Henry Davis, Deceased, filed suit against East Texas Motor Freight Lines, a corporation, in the United States District Court for the Eastern District of Arkansas, Western Division, which said suit bore civil No. 2743 and involved the same traffic accident involved here. ... In the said civil action No. 2743, the only grounds alleged for liability on the part of East Texas Motor Freight Lines, a corporation, were that Jerry T. Perryman was guilty of negligence which proximately caused the collision and that the said Jerry T. Perryman was an employee of East Texas Motor Freight Lines and acting within the scope of his employment at the time of the traffic accident. East Texas Motor Freight Lines, a corporation, in its answer in the District Court of the United States, Eastern District of Arkansas, Western Division, in Civil No. 2743, admitted that Jerry T. Perryman was an agent and employee of the East Texas Motor Freight Lines and acting within the scope of his employment at the time of the traffic accident. United States District Court Cause No. 2743 was tried before a jury on the issue of whether or not East Texas Motor Freight Lines, a corporation, was liable to Rea Howell Davis, Administratrix, because of negligence on the part of Jerry T. Perryman; and resulted in a verdict in favor of East Texas Motor Freight Lines on April 20, 1954. Judgment on the verdict in United States District Court was entered on April 20, 1954; Rea Howell Davis has never appealed from the said judgment in favor of East Texas Motor Freight Lines; and the said judgment has now become final. Defendant pleads the foregoing proceedings, orders and judgments . . . United States District Court No. 2743 as a bar to this cause of action.”
At a hearing on said motion it was stipulated in open court by the respective parties, through their attorneys, that all of the allegations, contained in said motion to dismiss, were true. Thereupon, the Trial Court sustained the motion and dismissed the complaint; and appellant, claiming error, argues the two assignments now to be discussed.
Assignment No. 1. The appellant says: “Res judicata does not apply, because in this ease the East Texas Motor Freight Lines is not privy to Perryman, nor Perryman to the East Texas Motor Freight Lines.” Among other authorities, appellant cites Eldred v. Johnson, 75 Ark. 1, 86 S. W. 670, to the effect that a judgment binds only parties to the action and those in privity with parties; and then appellant says that in the scope of such rule of res judicata a servant is not in privity with a master and an agent is not in privity with a principal; and to sustain such statement, appellant cites these Arkansas cases: Mo. Pac. RR. Co. v. McGuire, 205 Ark. 658, 169 S. W. 2d 872; Meyer v. Eichenbaum, 202 Ark. 438, 150 S. W. 2d 958; Gates v. Mortgage Loan, etc., 200 Ark. 276, 139 S. W. 2d 19; Berryman v. Cudahy Pack. Co., 191 Ark. 533, 87 S. W. 2d 21; and in the oral argument before the Court, appellant added the cases of Mo. Pac. RR. Co. v. Nelson, 195 Ark. 883, 115 S. W. 2d 872; Ark. P. & L. Co. v. Marsh, 195 Ark. 1135, 115 S. W. 2d 825; and Corder v. Norsworthy, 194 Ark. 564, 109 S. W. 2d 136.
We respect the cases cited by the appellant and nothing herein in any way overrules the real holding in any of the cited cases; but we have here a factual situation materially different from that in any of the cited cases. Focused down to the distinct issue, the question here is whether the plaintiff, after an unsuccessful damage action against the master for the alleged negligent act of the servant, is barred from maintaining a subsequent action against the servant involving the same mishap, when it was and is conceded in both actions that the servant was all the time acting within the scope of his employment and the only questions in the two actions are negligence and contributory negligence.
Learned counsel for appellant has not cited us to any Arkansas case with facts like the one here, and our search has failed to disclose any such case; but the cases from other jurisdictions are overwhelming in holding that an action like the present one cannot be maintained when a previous action by the same plaintiff against either the master or the servant for the same alleged act of negligence has been finally decided against the plaintiff in the Courts — State or Federal — of the same jurisdiction, and in which the scope of employment of the servant has been conceded at all times by the master and the only questions have been those of negligence and contributory negligence. The reason for the rule seems to be that the plaintiff has had a complete opportunity to have a court of competent jurisdiction in the forum pass on the questions of negligence and contributory negligence, and that the plaintiff is not entitled to have the same issue re-litigated.
A leading case is that of Giedrewicz v. Donovan, 277 Mass. 563, 179 N. E. 246, decided hy the Supreme Court of Massachusetts in 1932. There the facts disclose that the plaintiff brought an action against the master for injuries received because of the alleged negligence of the servant; that case was tried in -the United States Court in Massachusetts and the master conceded that the servant was acting in the scope of employment, and the only issues were negligence and contributory negligence. That case was finally decided against the plaintiff; and then the plaintiff brought suit in the State Court of Massachusetts against the servant based on the same traffic mishap. The Supreme Judicial Court of Massachusetts, in the reported decision, held that the second action was barred because of the stated outcome of the first action. After recognizing the general rule, that a judgment is a bar to a subsequent action only when the parties or their privies are the same in both actions, the Court nevertheless held that the result of the first action prohibits the maintaining of the second action.
The Massachusetts Court quoted from the case of Jenkins v. Atlantic Coast Line RR. Co., 89 S. C. 408, 71 S. E. 1010, as follows:
‘ ‘. . . the true ground upon which a former judgment, in a case like this, should be allowed to operate as a bar to a second action is not res judicata, or technical estoppel, because the parties are not the same, and there is no such privity between them as is necessary for the application of that doctrine; but that in such cases, on grounds of public policy, the principle of estoppel should be expanded, so as to embrace within the estoppel of a judgment persons who are not, strictly speaking, either parties or privies. It is rested upon the wholesome principle which allows every litigant one opportunity to try his case on the merits, but limits him, in the interest of the public, to one such opportunity.”
Another case with facts like the one at bar is Myhra v. Park, 193 Minn. 290, 258 N. W. 515, decided by the Supreme Court of Minnesota in 1935. In that case, Myhra and his wife received injuries in a traffic mishap involving a car and a truck driven by Johnson, who was the servant and employee of Park. In the first action, Myhra filed against Park as the sole defendant, and sought damages for his car and his personal injuries, but did not mention any injuries sustained by his wife. It was conceded that Johnson was all the time acting in the scope of his employment, and the sole questions in the case were negligence and contributory negligence. The first action resulted in a decision in favor of Park. Thereafter, Myhra brought action against both Johnson and Park for amounts that he expended for medicine and hospital treatment of his wife and the loss of her services. The question was whether the first action against Park was a bar to the second action against Johnson, the servant. The Supreme Court of Minnesota stated the question :
“In view of the facts appearing in the instant case, is estoppel by verdict or bar by judgment available to the defendant, Tim Johnson? Plaintiff asserts that, because Johnson was not a party to the former action, there can be no estoppel as to him. The liability of defendant Park necessarily depended upon whether there was negligence on the part of his servant at the time and place of the accident. There is no question but that Park assumed responsibility for his servant’s acts and conduct, even were that open to dispute. So the question presented is really this: Plaintiff having fully litigated the question of the servant’s negligence in his action against the master and, after an adverse determination of such issue upon the merits, having based his new cause of action upon the same facts, may he again litigate the same issue in an action against the servant1?”
The Supreme Court of Minnesota, after reviewing numerous authorities, held that, since Myhra had litigated the question of the servant’s negligence in his action against the master, he could not again litigate the same question in an action against the servant.
In 133 American Law Reports 181 there is an Annotation entitled: “Judgment in action growing out of accident as res judicata, as to negligence or contributory negligence, in later action growing out of the same accident by or against one not a party to the earlier action. ’ ’ On page 196 of that volume there is this statement:
“It is a prevailing rule that as regards actions growing out of an accident, in which liability is claimed on the ground of the alleged negligence of a servant or agent, a judgment in favor of either the master or principal on the one hand, or the servant or agent on the other, sued alone, is res judicata, or conclusive, as to such issue of negligence, in a subsequent action against the other, a derivative responsibility being present.”
In 23 American Law Reports 2d the Annotation on the same subject is supplemented, and cases adhering to the prevailing rule, as above quoted, are listed there and in supplemental volume, being: Wolf v. Kenyon, 273 N. Y. Supp. 170; Tighe v. Skillings, 297 Mass. 504, 9 N. E. 2d 532; Lasher v. McAdam, 211 N. Y. Supp. 395 and 215 N. Y. Supp. 876; Jones v. Young, 14 N. Y. Supp. 2d 84; Fightmaster v. Tauber, 43 Ohio App. 266, 183 N. E. 116; King v. Stuart Motor Co. (1943, DC Ga.), 52 F. Supp. 727; Spitz v. BeMac Transport Co. (1948), 334 Ill. App. 508, 79 N. E. 2d 859; Overstreet v. Thomas (1951), Ky., 239 S. W. 2d 939; Silva v. Brown (1946), 319 Mass. 466, 66 N. E. 2d 349; Thirty Pines, Inc. v. Bersaw (1942), 92 N. H. 69, 24 A. 2d 500; Canin v. Kesse (1942), 20 N. J. Misc. 371, 28 A. 2d 68; Jones v. Valisi (1941), 111 Vt. 481, 18 A. 2d 179; Laffoon v. Waterman S. S. Corp. (DC NY), 111 F. Supp. 923; Miller v. Simons, 239 Minn. 523, 59 N. W. 2d 837; Kelley v. Curtiss, 16 N. J. 265, 108 A. 2d 431; Templeton v. Scudder, 16 N. J. Super. 576, 85 A. 2d 292; Stone v. Carolina Coach Co., 238 N. C. 662, 78 S. E. 2d 605; and Mooney v. Central Motor Lines, Inc. (CA6th Ohio), 222 F. 2d 572.
At all events, we believe the rule of the Massachusetts and Minnesota cases is sound: and we hold that the plaintiff, after a prior unsuccessful damage action against the master or servant for alleged negligence of the servant, is barred from maintaining a subsequent action involving the same mishap when it was and is conceded in both actions that the servant was all the time acting within the scope of his employment and the only questions in the two actions are negligence and contributory negligence.
Assignment No. 2. The appellant says: “Estoppel by judgment does not apply because of lack of mutuality of estoppel.” And to support this statement appellant cites: Hogan v. Bright, 214 Ark. 691, 218 S. W. 2d 80; Treadwell v. Pitts, 64 Ark. 447, 43 S. W. 142; Avera v. Rice, 64 Ark. 330, 42 S. W. 409; and Berryman v. Cudahy Packing Co., 191 Ark. 533, 87 S. W. 2d 21. We admit that the general rule is that mutuality of estoppel is required. In the recent case of Hogan v. Bright, 214 Ark. 691, 218 S. W. 2d 80, we cited the earlier case of Treadwell v. Pitts, 64 Ark. 447, 43 S. W. 142, to sustain the statement: “Estoppels by judgment must be mutual.” But, even so, the authorities generally recognize that in a situation as the one here, in which the plaintiff has already had a full and complete trial of the cause of action against one party and the action against the second party is derivative from the first, then there is an exception to the general rnle requiring mutuality in estoppel.
In the Massachusetts case of Giedrewicz v. Donovan, 277 Mass. 563, 179 N. E. 246, previously discussed, this matter of the exception to mutuality of estoppel was discussed, and the Massachusetts Court said:
“As a matter of public policy and in the interest of accomplishing justice, the better rule would seem to be that, if it is clearly established, in the trial of an action either against the employee or against the principal for damages caused by the employee’s negligent conduct, that the employee is not negligent, the judgment in the ease first tried is a bar to a subsequent action by the same plaintiff for the same negligent act of the same employee. In principle it would seem to be immaterial whether the first judgment was obtained in an action against the employer provided the only ground for holding the employer is the negligence of the employee and it clearly appears that in the first trial the employee was found to be free from culpability.”
In 50 Corpus Juris Secundum 294, in discussing mutuality of estoppel in matters of judgment, the text, after stating the general rule that estoppels must be mutual, then says:
“A well recognized exception to the rule of mutuality exists where the liability of defendant is altogether dependent on the culpability of one exonerated in a prior suit on the same facts, when sued by the same plaintiff. In such cases the unilateral character of the estoppel is justified by the injustice which would result in allowing a recovery against a defendant for conduct of another, when that other has been exonerated in a direct action. It has also been held that the requirement of mutuality must yield to public policy, and that a plaintiff who deliberately selects his forum is bound by an adverse judgment therein in a second suit involving the same issues, even though defendant in the second suit was not a party, nor in privity with a party, in the first suit.”
We conclude that, in a situation like the one here, there is an exception as to the requirement of mutuality of estoppel. We, therefore, conclude that the trial court was correct in sustaining the motion to dismiss.
Affirmed.
In oral argument appellant’s attorney, with becoming candor, conceded that trial in a Federal Court in the same State was equivalent to a trial in the State Court since the holding of the United States Supreme Court in Erie v. Tompkins, 304 U. S. 64, 82 L. Ed. 1188, 58 S. Ct. 817, 114 A. L. R. 1487, and the subsequent cases to the same effect.
Such limited statement of the rule shows that a holding in favor of the plaintiff in the first action — whether against the master or the servant — is not res judicata on the questions of negligence and contributory negligence in a subsequent action, nor does the rule apply as long as the judgment obtained in the first action remains unsatisfied. It is only when the plaintiff has tried and lost that the rule applies; and then only where the only questions are negligence and/or contributory negligence.
Apparently the case holding contrary to the quoted statements from American Law Reports is the Kentucky case of Myers v. Brown, 250 Ky. 64, 61 S. W. 2d 1052, decided in 1933. But the value of the holding in Myers v. Brown is considerably weakened by the later Kentucky cases of Blue Valley Creamery Co. v. Cronimus (1937), 270 Ky. 496, 110 S. W. 2d 286, decided in 1937; and the case of Overstreet v. Thomas, _ Ky _, 239 S. W. 2d 939, decided in 1951.
We call attention to the fact that the cause of action here involved arose prior to our Comparative Negligence Statute, which is Act 191 of 1955. Therefore, neither side in the present litigation has mentioned that Act. Whether that Act might have any bearing in a case such as the one here is something that we have not considered; but we mention the point in an abundance of precaution because of some language contained in the case of Mo. Pac. v. Nelson, 195 Ark. 883, 115 S. W. 2d 872.
The Massachusetts Court quoted from the opinion of Judge Van Devanter in Portland Gold Mining Co. v. Stratton’s Independence (CCA8th), 158 F. 63, 16 L. R. A., N. S. 677: “Thus it is settled by repeated decisions that the general rule that one may not have the benefit of a judgment as an estoppel unless he would have been hound by it had it been the other way is subject to recognized exceptions, one of which is that in actions of tort, such as trespass, if the defendant’s responsibility is necessarily dependent upon the culpability of another, who was the immediate actor, and who, in an action against him by the same plaintiff for the same act, has been adjudged not culpable, the defendant may have the benefit of that judgment as an estoppel, even though he would not have been bound by it had it been the other way.”
See also 34 Corpus Juris 988, where similar language shows that the exception is of long standing. | [
-48,
104,
-20,
-97,
26,
-29,
42,
58,
116,
99,
-25,
-45,
-19,
-33,
13,
109,
-31,
93,
-47,
-87,
-11,
-77,
95,
-94,
-45,
-109,
121,
71,
-79,
-54,
-27,
118,
12,
50,
-86,
-43,
38,
64,
-59,
30,
-50,
32,
59,
-88,
121,
-110,
-96,
40,
22,
15,
81,
-114,
-13,
42,
25,
-57,
9,
42,
-1,
-87,
-46,
48,
-118,
13,
126,
16,
49,
4,
-100,
37,
-8,
60,
-48,
49,
40,
-116,
114,
-90,
-26,
-44,
107,
-119,
8,
98,
99,
32,
-107,
-83,
-52,
-72,
7,
-66,
29,
-90,
-70,
112,
75,
5,
-97,
29,
123,
84,
7,
-4,
-4,
21,
93,
40,
3,
-81,
-106,
-77,
47,
-95,
-100,
-105,
-18,
-125,
-76,
81,
-113,
-22,
93,
6,
27,
-101,
-33,
-106
] |
Lee Seamster, Chief Justice.
This is an appeal by the appellant, from a decree of the Saline Chancery Court, which quieted and confirmed title to 40 acres of Saline County real property in the appellee, H. H. Heit man, and cancelled a prior deed to appellant, W. H. Collins, to the same property, as a cloud upon the appellee’s title. The property is described as follows: southeast quarter of the northwest quarter, section 13, township 1 south, range 14 west, Saline County, Arkansas.
On August 25, 1951, Mrs. Helen Thomas offered for sale at auction, certain lands owned by her, which were situated in Saline County, Arkansas. The auction sale was conducted by Ben Johnson, as auctioneer. Prior to the sale, Johnson had acquired a mortgage against the lands, taking over an indebtedness that had been negotiated by the firm of Rights ell, Collins, Barry & Company, Inc. In an effort to liquidate this indebtedness, Mrs. Thomas and Ben Johnson entered into an agreement, wherein, Johnson was to sell the Midland Farms, which was owned by Mrs. Thomas and consisting of 390 acres, at auction on terms of 50% cash and the balance due, with interest, six months thereafter. According to the terms of the contract, the proceeds of the sale were to be placed in escrow and applied to the liquidation of the indebtedness.
In an instrument dated August 24,1951, Mrs. Thomas and Ben Johnson, acting through their attorneys, entered into an escrow agreement, whereby, Collins and Company, a partnership composed of John Collins and "W. H. Collins, appellant herein, was designated as the escrow agent. For a fee of $500, the escrow agent was to handle all funds derived from the auction sale, and upon receipt of the purchase money, the escrow agent was to deliver to the purchasers of the lands, their deeds with title insured, and further, to pay Johnson any indebtedness owed by Mrs. Thomas on the mortgage. Any remaining money, after liquidation of the indebtedness, was to be delivered to Mrs. Thomas. Pursuant to this agreement, the auction sale was held on Saturday, August 25, 1951, at the Midland Farm premises.
At the start of the auction sale, the auctioneer announced the terms and conditions governing the sale; he also gave notice that deeds for successful bidders would be available at the office of Collins and Company and could be procured after 2 P.M., Monday, August 27, 1951. This announcement also provided, among other things, that the owner of Midland Farms reserved the right to reject any bid or bids, on any lot, group of lots, or the entire farm. The appellee herein, H. H. Heitman, was the successful bidder at the sale for the 40-acre tract here in litigation, having submitted the highest bid in the sum of $5,910 and having that sum accepted by the auctioneer. Appellee reduced his bid to writing and delivered his check for one-half of this amount. His check was accepted for the required deposit, and he was issued a certificate of bid, showing the balance due on the purchase price.
On the following Monday morning, August 27, 1951, a meeting was held in appellant’s office, for the purpose of taking care of certain business that arose out of the auction sale. Among those persons present were, the attorney for Mrs. Thomas, the attorney for Ben Johnson, the appellant, W. H. Collins, who was the escrow agent, and other persons connected with the auction sale. At this time, the attorney for Mrs. Thomas rejected four of the bids that were received at the auction sale. One of the four bids rejected was the appellee’s bid of $5,910, for the purchase of the 40-acre tract in question. On the same day, pursuant to the rejection of the bids, appellee was notified by phone that his bid had been rejected by Mrs. Thomas. His check in the sum of $2,955, which had been previously delivered by him as a down payment on his bid, was personally returned to him by Walter P. Watts, an official for the Ben Johnson Auction Company. The appellee accepted the return of his check and surrendered his certificate of bid, since he thought Mrs. Thomas had personally rejected his bid on the property.
Subsequently, on the same date, the appellant, W. H. Collins, submitted a bid in the sum of $6,250, for the purchase of the 40-acre tract of land in question. The attorney for Mrs. Thomas drew up an offer and acceptance; the .terms being $3,125, in cash and the balance due six months thereafter. The receipt of the earnest money was accepted by W. P. Watts, agent for Ben Johnson, and the offer was accepted in writing by the attorney for Mrs. Thomas. Mrs. Thomas was not present, nor did she have knowledge of this business transaction.
On the same afternoon, appellee met Mrs. Thomas, and while conversing about the auction sale, she informed him that she had not rejected his bid on the 40-acre tract and it was her desire that appellee have the property for the purchase price bid at the auction. On the following day, Tuesday, August 28, 1951, Mrs. Thomas tendered to appellee a written statement to this effect. Shortly thereafter, the appellee met with appellant to discuss the matter of conflicting interests to the property.
On August 31, 1951, Mrs. Thomas signed a letter ratifying and confirming her attorneys’ acts in rejecting the four bids on August 27,1951, including the appellee’s bid of $5,910, for the 40-acre tract. This letter also ratified and confirmed her attorney’s act in accepting the bid of appellant, for the 40-acre tract. On September 5, 1951, Mrs. Thomas delivered to appellant a warranty deed to the property. This deed was filed for record in Saline County at 10:20 A.M. on September 10, 1951.
On September 10, 1951, at 8:18 A.M., appellee filed suit against Mrs. Helen M. Thomas in the Saline Chancery Court, for specific performance of his alleged contract of sale of the 40-acre tract of land. Upon trial of the issues, the trial court found, in its decree dated May 12, 1952, that a valid sale had been made to appellee and ordered Mrs. Thomas to execute and deliver to appellee a deed to the 40-acre tract. Upon Mrs. Thomas’ failure to act, the court appointed a commissioner to make the conveyance. On September 26, 1952, the commissioner executed a commissioner’s deed to appellee for the 40-acre tract in question, pursuant to said decree.
On October 1, 1952, appellee filed this action in the Saline Chancery Court against appellant, to set aside appellant’s deed to the property in question, as a cloud upon his title. Appellee claimed title through his commissioner’s deed of September 26, 1952. Appellant answered and filed a counter claim against appellee, inter posing the defense of innocent purchaser for value and without notice. The appellant claimed that his title to the property was superior to that of appellee. In a decree dated December 31, 1954, the chancellor held that appellee was the owner of the land by virtue of his purchase from Helen M. Thomas, at the auction sale conducted on August 25, 1951, and that appellee acquired title in fee by virtue of the commissioner’s deed dated May 12, 1952. The chancellor further found that at the time appellant acquired his warranty deed from Mrs. Thomas, on August 27,1951, he was acting in the capacity of escrow agent for the parties, and he had actual knowledge of the sale of such lands to appellee, therefore, appellant was not a bona ficle or innocent purchaser without notice, at the time he acquired the deed to the lands from Mrs. Thomas. This appeal follows.
The appellant lists three points for reversal, they are: (1) the appellee failed to prove a superior title as a matter of law; (2) the appellant was a bona fide purchaser for value; and , (3) the appellee is estopped from denying that appellant is an innocent purchaser for value.
The evidence is undisputed that appellee submitted the highest bid for the 40-acre tract and this bid was accepted by the auctioneer and appellee delivered his check for the required down payment. The appellant contends that Mrs. Thomas had an indefinite time limit in which to reject the offers. However, the printed announcement merely stated “that the owners of the property involved reserved the right to reject a bid or bids on any lot, group of lots, or the entire farm. ’ ’
Ark. Stats. (1947), § 68-1421 (2), covers sale by auction of personal property and provides as follows: “A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner: Until such announcement is made, any bidder may retract his bid; and the auctioneer may withdraw the goods from sale unless the auction has been announced to be. without reserve.”
The law that governs the sale of personal property by auction also governs the sale of real estate by auction. Such terms and conditions that may affect the rights of the parties must be announced and agreed upon before the completion of the sale. Unless otherwise provided, the sellers’ right to reject any or all bids, must be exercised before the acceptance of the successful bid. The auctioneer is the agent of the seller and his act in accepting the bid is binding on the seller. The seller has no right to reject a bid after the bid has been accepted and the purchaser has delivered the required payment. The same rule applies to the purchaser, who has no right to reject the sale after he has submitted the successful bid and has delivered the required payment. In the instant ease, a contract was entered into when appellee’s bid was accepted at the auction sale, without rejection by the seller, and appellee delivered the required payment. The contract was binding at this time.
It is apparent from the record compiled in this case, that appellant and appellee trace their respective titles to Mrs. Thomas. The appellant contends that in a suit to quiet title, the plaintiff must prevail upon the strength of his record title, and, an equitable title is not sufficient against a subsequent purchaser with superior record title. In this statement of the law appellant is in error. The law governing this situation was clearly announced in Eickhoff v. Scott, 137 Ark. 170, 208 S. W. 421, where this court said: “It is true, in an adversary suit, that the plaintiff must recover on the strength of his own title and not the weakness of the defendant’s title. Knauff v. National Cooperage and Woodenware Co., 99 Ark. 137, 137 S. W. 823, and cases cited therein. This rule is applicable where the parties claim title from independent sources, and has no application in cases where the parties trace their respective titles to a common source. "Where parties trace their title to a common source, the one must prevail who has the superior equity.” Since both parties claim title through Mrs. Thomas and since appellee’s title antedates and is superior to that of appellant, it necessarily follows that appellee is entitled to have same quieted.
The appellant contends, in his second point, that he was a bona fide purchaser of the 40-acre tract, for value. We cannot agree with appellant. From the beginning he was closely identified with this auction sale. Appellant acquired his deed from Mrs. Thomas at a time when he was acting in the capacity as escrow agent for her, in the handling and conducting of the sale of the lands in question. In this capacity as such escrow agent, appellant had actual knowledge of the sale of said lands to appellee and therefore could not be considered a bona fide or innocent purchaser without notice at the time he acquired said deed from Mrs. Thomas. One who purchases real estate with the knowledge that another had a contract of purchase is not a bona fide purchaser, and if he acquired such knowledge at any time before payment of the consideration, he will not be protected as a purchaser in good faith. Valley Planing Mill Co. v. Lena Lumber Co., 168 Ark. 1133, 272 S. W. 860.
In Vol. 66, Corpus Juris, Section on Vendor and Purchaser, page 1060, we find the following: “A subsequent purchaser from a vendor with notice actual or constructive, of a prior contract of sale of the land takes the land subject to the contract whether he has a deed or not, and although he has paid a valuable consideration.”
We have often stated that an agent, regardless of how innocent his intentions may be, cannot place himself in a situation where personal interests conflict with.the duties owed his principal. In the recent case of McHaney v. McHaney, 209 Ark. 337, 190 S. W. 2d 450, 162 A. L. R. 1175, we said.: “Everyone, whether designated agent, trustee, servant, or what not, who is under contract or other legal obligation to represent or act for another in any particular business or line of business, or for any valuable purpose, must be loyal and faithful to the interest of such other in respect to such interest or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to it. T.his is a rule of common-sense and honesty, as well as law. The agent.,is not entitled-.to avail himself of any advantage that his position may give him to profit beyond the agreed compensation for Ms services. He may not speculate for Ms gain in the subject-matter of the employ-' ment. He may not use any information that he may have acquired by reason of his employment, either for the purpose of acquiring property or doing any other act which is in opposition to his principal’s interest.”
The cardinal principle of all agency is good faith. In accepting the office of depositary, appellant became the agent of both buyer and seller. This created a relation of confidence the depositary could not thereafter violate nor pervert to his own advantage or the detriment of either principal. Upon one claiming to be an innocent purchaser rests the burden of proving his good faith. Abbott v. Parker, 103 Ark. 425, 147 S. W. 70. We think the chancellor was correct in finding that appellant was not an innocent purchaser without notice, at the time he acquired a deed to the 40-acre tract from Helen M. Thomas. As escrow agent, the appellant had actual knowledge of the sale of said land to the appellee.
The appellant is in no position to plead estoppel. He was aware of the sale of the land to the appellee before he expended any money on his alleged purchase. He attempted to purchase the property from the auctioneer, at a private sale, after he had received actual knowledge that the property had been sold to the appellee. The record reveals that appellant knew that Mrs. Thomas had not rejected the appellee’s bid. In fact he knew that Mrs. Thomas had prepared a written statement, whereby, she informed appellee that she had not rejected his bid and she wanted appellee to have the property for the amount of the bid. The appellant did not expend any money for the purchase of the 40-acre tract until several days after he received notice from appellee of the latter’s claim. Appellant was escrow agent for the parties and was charged with the duty of carrying out the terms and conditions of the escrow agreement. As such escrow agent, he was not entitled to avail himself of any advantage that his position gave him to profit beyond the agreed compensation for his services. It is uniformly held that no one can be permitted to purchase an interest in property -where he has a duty to perform that is inconsistent with the character of a purchaser. Culberhouse v. Shirey, 42 Ark. 25; Rogers v. Lockett, 28 Ark. 290; Ellsworth v. Benedict, 214 Ark. 367, 216 S. W. 2d 392.
Upon trial of this cause, the appellant did not plead estoppel. The appellant has failed to bring himself within any of the exceptions to the general rule. Therefore, the appellant cannot raise the plea of estoppel for the first time, upon appeal to this court. Gerard B. Lambert Co. v. Rogers, 161 Ark. 307, 255 S. W. 1089; Reeder v. Meredith, 78 Ark. 111, 93 S. W. 558.
Finding no error in the trial court’s decree in cancelling appellant’s deed and confirming title in appellee as against appellant, the decree is affirmed.
Justice Smith dissents. | [
113,
108,
-68,
29,
24,
96,
24,
11,
82,
-85,
100,
83,
105,
-62,
17,
109,
-89,
45,
96,
104,
-41,
-78,
25,
-6,
-46,
-45,
-55,
-51,
-68,
109,
-74,
-41,
77,
32,
-54,
-107,
-58,
-30,
-49,
16,
30,
-127,
-37,
101,
-39,
52,
56,
47,
22,
15,
21,
-114,
-13,
45,
53,
79,
76,
46,
-37,
34,
81,
-70,
-70,
-121,
-1,
22,
17,
-28,
-102,
-121,
72,
106,
-112,
49,
0,
-24,
115,
54,
-62,
116,
0,
91,
8,
50,
99,
18,
-83,
-25,
-8,
-88,
6,
123,
-99,
-90,
-126,
88,
67,
104,
-66,
-100,
124,
16,
-109,
-10,
-18,
-123,
92,
40,
-121,
-50,
-106,
-73,
15,
-72,
-107,
11,
-13,
-67,
112,
113,
-49,
-30,
89,
-57,
61,
27,
-116,
-7
] |
McCulloch, C. J.
This is an action on a fire insurance policy to recover $500, the full amount of the policy. The subject of the insurance was a house in Eudora, Chicot County, Arkansas, which was totally destroyed by fire.
It seems, from the meager abstract of the record which has been furnished, that the defenses tendered by the answer are that proof of loss was not furnished within the stipulated time, that the assured misrepresented the character of the occupancy of the building, thereby securing a lower rate of premium than the company would have taken the risk for, and that there was a change of occupancy after the policy was written which increased the hazard.
The policy contained a clause stipulating that it should be void “if any change, other than by the death of an assured, takes place in the interest, title or possession of the subject of insurance (except change of occupancy without increase of hazard) whether by voluntary act of the assured or otherwise.”
It is insisted that the court erred in its instructions; but, as all of the instructions are not abstracted, we can not consider this assignment. An inspection of the record discloses, however, that none of the instructions is contained in the bill of exceptions, nor does the bill of exceptions contain any call for them, though the clerk has included what purports to be a list of instructions in the transcript. This is an additional reason why we can not consider the assignment of alleged errors in giving instructions. -
This leaves only the question as to whether the evidence is legally sufficient to sustain the verdict. Enough of the testimony is abstracted to show that there was some evidence to the effect 'that proof of loss was furnished during the stipulated time. Therefore, that question is eliminated from the case by the verdict of the jury.
The rules of this court require that the appellant shall furnish an abstract or abridgment of the record, so that the court can determine, from a perusal thereof, whether or not prejudicial error has been committed. If such an abstract be not furnished, an affirmance of the case always follows, as it is not the duty of the judges to explore the record, and we must indulge the presumption that the judgment of the lower court is correct until the contrary is shown. In a case like this, where the only question is whether or not the evidence is legally sufficient to sustain the verdict, there must be an abstract of all the testimony in the case. In this instance counsel have merely given excerpts from the testimony of some of the witnesses, which do not purport to be all of the testimony or the substance thereof. We can not therefore determine whether there was any evidence to sustain the verdict and must indulge the presumption that there was sufficient evidence; otherwise the trial judge would not have submitted the issue to the jury.
The action was originally instituted by the assured, but subsequently C. P. Snell, as mortgagee, to whom the policy was made payable (as his interest might appear), intervened in the cause. The jury returned a verdict “for the plaintiff, ” stating the amount, and the court rendered a judgment in favor of Snell and the assured. It is insisted that the judgment is erroneous because the verdict did not specify all the plaintiffs or any particular one. This is not, however, a matter of which the defendant has a right to complain, for neither the assured nor the intervener have objected to the form of the judgment, and the defendant is not prejudiced by it, as all the parties in interest are bound by the judgment.
Affirmed. | [
-80,
124,
-32,
-83,
-120,
-32,
40,
-38,
-61,
-127,
39,
83,
-19,
-64,
20,
103,
-106,
41,
-27,
34,
-42,
-93,
18,
67,
-42,
-106,
115,
-59,
53,
75,
124,
30,
92,
32,
-62,
-43,
66,
74,
-59,
-36,
-50,
13,
-102,
-27,
-7,
88,
52,
105,
-12,
7,
113,
-97,
-29,
42,
25,
-49,
41,
44,
75,
-71,
-47,
-7,
-117,
15,
127,
17,
-79,
118,
-108,
5,
120,
8,
-108,
49,
0,
-8,
114,
54,
-122,
52,
39,
-119,
8,
102,
98,
56,
45,
-17,
-83,
-120,
39,
36,
63,
-90,
-110,
73,
-85,
43,
-73,
-103,
116,
16,
6,
-4,
-28,
84,
89,
108,
17,
-113,
-48,
-73,
13,
100,
28,
11,
-2,
-109,
52,
112,
-49,
-32,
92,
79,
25,
-69,
-50,
-50
] |
Ed. P. McFaddiN, Associate Justice.
TMs appeal involves the guardianship of General Metcalfe. The in herent question is what is for the best interest of the ward: the questions actually posed relate to (a) the qualifications of the guardian, (b) requirements as to notice of annual reports, and (c) correctness of fees allowed the guardian and her attorney.
General Metcalfe is a retired officer of the United States Army; and the appellee, Mrs. Marjorie Nichol, is his step-daughter. General Metcalfe has no children or descendants; and the appellant, who lives in Seattle, Washington, is his only brother and nearest blood relative. General and Mrs. Metcalfe were married when Mrs. Marjorie Nichol was a small child, and the General has stood in loco parentis to her and she in loco filiae to him. Colonel Nichol was an officer under General Metcalfe when the Colonel and Mrs. Nichol were married. In 1950, Colonel Nichol was stationed at the Army-Navy Hospital in Hot Springs when General Metcalfe retired; and the General and Mrs. Metcalfe moved to Hot Springs to live Avith Colonel and Mrs. Nichol. Both General and Mrs. Metcalfe became victims of senility and, Avith their consents — in apparently lucid intervals • — ■ the Probate Court of Garland County in March, 1951, appointed Mrs. Nichol guardian of the persons and estates of Mrs. Metcalfe and General Metcalfe. Mrs. Metcalfe is now deceased ; and this case relates only to the guardianship of General Metcalfe, who has been in Port Roots Hospital in Little Rock from 1951 until and after the time of the hearing from Avhich comes this appeal.
At the inception of the guardianship, General Metcalfe’s estate, largely in stocks and bonds, was inventoried and valued at $90,235.96. Mrs. Nichol filed her first annual account in March, 1952, and it Avas approved by the Court. She filed her second annual account in March, 1953, which Avas likewise approved by the Court. In March, 1954, she filed her third annual account; and thereupon the appellant resisted the account and claimed: (a) that Mrs. Nichol Avas never qualified to be guardian of General Metcalfe; (b) that the approvals of the first and second annual accounts were void because no notice had. been given to the appellant; and (c) that the allowances to the guardian and her attorney were excessive. The Probate Court held against the appellant on all points; and this appeal has resulted.
I. Mrs. Nichol’s Qualifications as Guardian. Colonel and Mrs. Nichol were living in Hot Springs on the grounds of the Army-Navy Hospital, and General and Mrs. Metcalfe were living with them at the time Mrs. Nichol was appointed guardian of General Metcalfe, as heretofore stated. The appellant says that the domicile of Colonel Nichol is the domicile of Mrs. Nichol (Collum v. Hervey, 176 Ark. 714, 3 S. W. 2d 993); and that Colonel Nichol was here in Arkansas as an Army Officer and therefore not domiciled in the State within the purview of our holdings in such cases as Kennedy v. Kennedy, 205 Ark. 650, 169 S. W. 2d 876, and Mohr v. Mohr, 206 Ark. 1094, 178 S. W. 2d 502. These cases relate to domicile for divorce imrposes and not to mere residency for guardianship purposes. In § 57-606, Ark. Stats., in discussing venue for the appointment of a guardian, the Statute says that the venue shall be “. . . (1) in the County of this State which is the domicile of the incompetent; or (2) if the incompetent is not domiciled in this State but resides in this State, then the County of his residence; . . .” The quoted language shows that the framers of our Probate Code (Act 140 of 1949) recognized the clear distinction between domicile and residence. Then in the next section of the Probate Code (§ 57-607, Ark. Stats.), in stating the qualifications of a guardian, the language is: “A natural person, a resident of this State ... is qualified to be appointed guardian of the person and of the estate of an incompetent. . . .” The use of “resident” — in the section immediately following the one using the word “domicile ’ ’ — shows that the Legislature knew and appreciated the difference between domicile and residence in prescribing the qualifications of a guardian to be merely a resident. Sub-section (e) of § 57-607, Ark. Stats., further emphasizes this distinction by stating that a nonresident natural person “. . . possessing the qualifi cations hereinbefore enumerated (except as to residence) wbo bas appointed a resident agent to accept service of process in any action or snit with respect to the guardianship and caused such appointment to be filed with the Court ... is qualified for such appointment. ’ ’
We hold that Mrs. Nichol was legally qualified as a residént to become guardian of her step-father, General Metcalfe. Furthermore appellant’s attack on Mrs. Nichol’s qualifications may be a collateral attack at the present stage of the proceedings (see Sharp v. Himes, 129 Ark. 327, 196 S. W. 131; and Swindle v. Rogers, 188 Ark. 503, 66 S. W. 2d 630); hut we do not rest our opinion on that point.
II. Approval of the First and Second Annual Reports. Appellant complains that no formal copies of these reports were ever served on him, and claims such service was required by § 57-611(5), Ark. Stats. The Veterans Administration of the 'United States received and approved each of the accountings; and there was no effort at concealment. Appellant does not claim that he would have suggested any changes if he hád been served with á legal summons. His only complaint is that he dislikes' to think of his brother being confined in the Hospital at Fort Hoots.
Assuming, without deciding, that appellant was entitled to receive notice of such reports, the facts show that he had knowledge by having written for and received copies of the reports from the Clerk of the Probate Court. Furthermore, there are in the evidence numerous friendly letters from Colonel Nichol to appellant, telling him of General Metcalfe’s condition and of visits made by the Nichols to Fort Roots to see the General, and of auto rides, shopping trips and dinners to which the Nichols had General Metcalfe, with the approval of the staff of the Fort Roots Hospital. General Metcalfe stood in loco parentis to Mrs. Nichol, and she certainly stood in loco filiae to Mm, because be was living in her home as her step-father at the time of the guardianship. Her love for him is attested by the letters and other matters in the file. On the other hand, until this guardianship, the appellant had seen General Metcalfe only at rare intervals and his visits were years apart. We conclude that the Trial Court was correct in refusing appellant’s contention as regards the first and second annual reports.
III. Third Annual Report. When Mrs. Nichol and her attorney filed this report, they caused a copy to be sent to the appellant; and he complains that the fees allowed Mrs. Nichol.and her attorney are too large. These were $1,200.00 to Mrs. Nichol and $1,200.00 to her attorney. As we stated heretofore, the estate was valued at $90,235.96 in 1951. In this third annual report filed in March, 1954, the net worth of the estate, after paying the guardian and attorney fees here attacked and after paying all other expenses, had increased to $119,405.40. It is, therefore, evident that there has been prudent handling of the estate. Mrs. Nichol had her attorney spend one day a month with General Metcalfe to personally see that he was well and happy, and we have previously commented on the visits that the Nichols made to General Metcalfe. We get the picture that this fine old soldier is being as well cared for as possible; that his guardian and her attorney are faithfully performing their duties; and that the Probate Court was correct in making the allowances.
Affirmed.
Later when Colonel Nichol was transferred to an Army Post in Texas, Mrs. Nichol attempted to comply with Subsection (e) by appointing her attorney, Honorable Clayton Farrar, as attorney for process. | [
113,
-20,
-20,
-100,
-118,
96,
-86,
-86,
74,
-5,
103,
115,
-95,
73,
5,
107,
-22,
15,
97,
-7,
-13,
-77,
87,
-63,
82,
-6,
-85,
-51,
-79,
-20,
-12,
-42,
73,
88,
-86,
-48,
102,
-125,
71,
28,
-50,
1,
57,
-27,
-39,
-126,
48,
127,
28,
-113,
65,
30,
-13,
44,
29,
98,
72,
40,
121,
-72,
-48,
49,
-117,
4,
127,
47,
17,
36,
-112,
-25,
80,
38,
-104,
48,
8,
-19,
121,
-74,
-122,
116,
107,
25,
8,
112,
98,
-112,
97,
-25,
-71,
-118,
14,
94,
-123,
-26,
86,
25,
-23,
101,
-74,
-66,
124,
28,
6,
-4,
38,
-107,
92,
108,
9,
-113,
-106,
-79,
95,
-8,
-99,
18,
-21,
-45,
114,
113,
-54,
-30,
124,
67,
51,
-101,
-90,
-16
] |
Ward, J.
Appellee recovered a judgment for injuries received because of the alleged negligence of the driver of appellant’s bus at a street crossing. Appellant contends that the judgment should be reversed for two reasons: First, it is alleged that there is no evidence to support the allegation of negligence on the part of the bus driver; second, it is alleged the evidence shows that appellee was guilty of contributory negligence as a matter of law.
Appellee, Mrs. Leonard Mitchell, was injured about 6 :Q0 p. m. on November 21, 1953, while she was attempting to cross Main Street from west to east where said street intersects Fifth Street in the City of Little Rock. She was attempting to cross along the south side of Fifth Street. The testimony shows that Mrs. Mitchell waited for the traffic light to turn green and then stepped into the crosswalk or safety zone and proceeded east for the purpose of crossing Main Street. Main Street is 54 feet wide, and when Mrs. Mitchell was approximately 21 feet out into the street she was hit by the front bumper of appellant’s bus and knocked approximately 4 feet, landing prone on the pavement, and was injured.
Just previous to the said traffic light turning green on this particular occasion appellant’s bus had stopped, while traveling east on Fifth Street, several yards west of Main Street [in front of Franke’s Cafeteria]. On the caution signal [just preceding the said particular green light] the driver, Charles Holmes, put the bus in motion and proceeded toward Main Street, apparently arriving at the west line of Main Street at about the time the traffic light turned green. It is not entirely clear from the testimony whether the bus was stopped before it entered the intersection although there is testimony that it did not but proceeded on into the intersection at about the same time appellee started to cross the street. It was the intention of the driver, as he had a right, to make a right turn in order to proceed south on Main Street. The bus was 28 feet long [slightly more than one-half the distance across Main Street] and it appears that it was necessary for Holmes to proceed some distance out into Main Street before making the turn in order to avoid striking the curb. The point of impact of the bus with appellee was slightly to the left of the middle of the front bumper.
At this particular time it was raining and the windshield wipers on the bus were in operation. In one portion of Holmes ’ testimony it is stated that he saw appellee just before or at the time the bus struck her, but from other portions of his testimony the jury could have found that he didn’t see her at all. Holmes testified that immediately before and at the time of the impact the bus was moving 2 or 3 miles per hour and that appellee was knocked a distance of about 2 or 3 feet, but there was other testimony that the bus was traveling approximately 8 miles per hour and that appellee was knocked a distance of approximately 4 feet. Holmes stated that the bus moved about a foot after hitting appellee. He stated also that just as he was entering the intersection he saw two or three people standing on the sidewalk facing north but that he did not see Mrs. Mitchell or anyone else facing east, and he had no explanation of why he didn’t see Mrs. Mitchell.
The testimony does not show conclusively exactly how fast Mrs. Mitchell was walking as she was attempting to cross. Some testimony was to the effect that she was going fast or running and other testimony was that she was walking more or less normally. Mrs. Mitchell stated that she was crossing the street to buy a book at Walgreen Drug Store but doesn’t remember any of the details of how the collision occurred. She said she didn’t look for or see the bus after she entered the intersection. It is conceded that both Mrs. Mitchell and the bus entered Main Street on the green light and that they had a right to do so. The extent of the injuries or the amount of the judgment is not questioned.
Considering the factual situation above set forth and viewing the evidence in the light most favorable to appellee, as we must under our well established rule, we are unable to say as a matter of law either that there is no substantial evidence to support the allegation of negligence on the part of appellant, or that appellee was guilty of contributory negligence.
The jury would have, we think, been justified in finding that Holmes could and should have seen appellee preparing to cross the street in an easterly direction, should have seen her as she progressed across the street, should have seen her as he was turning his bus to the right when appellee was near the point of collision, and that be should have driven bis bus at a slower speed than be did. In weighing tbe degree of care exercised by tbe bus driver tbe jury could also take into consideration tbe late bour of tbe day and tbe condition of tbe weather. Holmes says that be stopped tbe bus within one foot after be struck appellee, so it would appear that bad be seen Mrs. Mitchell be might have been able to have avoided hitting her. The point of impact on the bus bumper is an indication that appellee was in such position that she could have been seen by tbe driver at least momentarily before she was bit.
What we have just said also substantiates our conclusion'that Mrs. Mitchell was not, as a matter of law, guilty of contributory negligence. Tbe evidence in this case does not present tbe same situation as obtained where we have held, in cases cited by appellant, that a person is guilty of contributory negligence as a matter of law where be steps into tbe line of traffic without looking. In tbe case of Ponder v. Carroll, 193 Ark. 1120, 105 S. W. 2d 72, this Court stated: “Appellee was negligent in stepping from tbe wagon without exercising ordinary precautions for bis own safety, and tbe trial court should have directed a verdict in favor of appellant.” It was there stated that appellee while riding across a bridge on a wagon stepped into tbe line of oncoming traffic without looking and was bit by a car approaching from the rear. Here it is not disputed that appellee bad a right to enter the intersection when she did or that she was in tbe crosswalk or safety zone. It is clear from tbe physical facts here that if appellee, at tbe time of stepping off tbe sidewalk preparatory to crossing tbe street, bad looked at tbe bus which was entering tbe intersection at the same time, there would have been no indication to her that tbe bus would cross her line of procedure. Due to tbe length of tbe bus it was necessary for it to proceed in a more or less straight line for some distance into tbe street before attempting to make a turn to the right. Tbe driver of tbe bus was of course aware of this and it imposed upon him tbe duty of exercising reasonable care before be changed the direction of tbe bus across tbe line alona1 which he knew pedestrians might be traveling. Having once entered the safety zone in her attempt to cross the street at a time when there was no apparent danger from the position of the bus, we cannot say, as a matter of law, that she was careless in thereafter failing to keep a continuous lookout for its movement.
Affirmed. | [
-16,
-20,
-12,
-18,
10,
64,
26,
26,
-43,
-99,
-91,
-45,
-81,
-55,
29,
97,
-9,
-67,
-47,
43,
-9,
-93,
7,
-93,
-14,
-73,
-21,
69,
-128,
-33,
118,
-10,
76,
112,
-54,
-107,
102,
73,
-19,
90,
-50,
-106,
-120,
96,
-39,
-110,
40,
58,
16,
7,
49,
-100,
-126,
42,
24,
66,
-20,
44,
107,
-75,
-110,
-16,
-120,
5,
79,
6,
-95,
36,
-98,
5,
120,
57,
-44,
-79,
8,
72,
50,
-90,
-126,
-44,
107,
-103,
12,
32,
102,
1,
21,
85,
-72,
-103,
46,
126,
45,
-121,
-118,
56,
81,
33,
-97,
-99,
79,
20,
15,
120,
-2,
-51,
27,
108,
1,
-50,
-76,
-79,
-19,
-16,
-106,
31,
-17,
27,
50,
112,
-54,
-62,
93,
69,
82,
-101,
-34,
-106
] |
Sam Robinson, Associate Justice.
This action was filed by appellee, George M. Williamson, December 15, 1954 to clear the title to certain property; there was a decree in his favor; the issue is whether appellee has acquired title by adverse possession; the facts are stipulated. Appellee’s father purchased the property, the South Half of Lot 3 and the North 25 Feet of Lot 4, Block 9, Capitol View Addition to the City of Little Rock, in 1918. The property was forfeited to the State by the non-payment of taxes for the year 1932. On July 31, 1937, appellee’s father and mother purchased the property from the State and received a deed to it. Appellee’s father paid the general taxes on the property until his death in July 1946 and appellee’s mother continued to pay the taxes until her death in 1954. Upon the death of appellee’s mother in 1954, he became the absolute owner of whatever title his father and mother had as tenants by the entirety. He and his predecessors in title have paid the general taxes on the property continuously since July 1937 to the time this suit was filed. It is further stipulated that since July 1937 the property has been unenclosed and unimproved within the meaning of Ark. Stats. Sec. 37-103.
The property is within the boundaries of Sewer Improvement District No. 94 of the City of Little Rock and the assessments due for the years 1931, 1932, 1933 and 1934 were not paid. On July 18, 1935, the District filed suit to foreclose its lien; on November 23, 1937, a decree was entered in favor of the District against appellee’s father, as owner of the property, for delinquent assessments for 1931,1932,1933 and 1934. The judgment was not paid and on the 16th day of March, 1938, the duly appointed commissioner sold the property to the District; the sale was approved on the 12th of April, 1938. On the 12th of October, 1943, after the expiration of five years, H. S. Nixon, Commissioner in Chancery, executed a deed to W. I. Stout, Trustee; and, on the 26th day of May, 1944, Stout executed a quitclaim deed to the appellant herein, Ed Pinkert. On January 16, 1950, Pinkert filed an action in the Pulaski Chancery Court seeking to quiet his title. A decree was taken quieting the title as against Lee Williamson, a stranger to the title; but that case in no way affected appellee’s title as neither he nor his predecessors in title were parties to that suit.
It will be recalled that appellee’s predecessors in title purchased this property from the State in 1937; and by that deed they acquired color of title. The Improvement District had filed suit in 1935 to foreclose its lien for unpaid assessments for previous years and the decree foreclosing such lien was taken in 1937. Assuming that the Williamsons lost title to the property by reason of the foreclosure decree in favor of the Improvement District, the question that follows is: Was their color of title, which they had by reason of the 1937 deed from the State, destroyed? Although the decree foreclosing in favor of the Improvement District for the unpaid assessments may have destroyed the title which the Williamsons obtained from the State, it did not destroy their color of title. There was no court order touching upon the deed the Williamsons had obtained from the State in 1937; that deed was not in issue in the foreclosure proceedings; no order was made by the Court with reference to it at all. ,
In Moore v. Morris, 118 Ark. 516, 177 S. W. 6, certain land had been patented by the State of Arkansas to P. K. Lester and T. J. Melton in 1856. Later, the property was acquired by one DeMoss by adverse possession. Still later, the heirs of Lester again came into possession of the land. The question was whether the original deed to their ancestor was sufficient to constitute color of title and thus support their claim of adverse possession. The Court said:
“It may be conceded (without so deciding) that appellees (those holding under DeMoss) have made sufficient showing to establish title in their ancester by adverse possession under color of title; nevertheless, the testimony shows very clearly that appellant (who holds under Lester) is entitled to have a decree quieting his title and declaring his right of possession. * * * Even if DeMoss or his heirs acquired title by adverse possession, that title was reacquired by the original owners, the Lester heirs, by payment of taxes under color of title under the Act of March 18, 1899. The undisputed evidence is that Lester and his heirs paid taxes on the land continuously up to the time it was sold to appellant. Their paper title, which constituted absolute title up to the time the ownership was wrested from them, if at all, by the adverse occupancy of DeMoss, continued thereafter at least as color of title, and the payment of taxes while the land was in a wild state and unoccupied restored the title to them by adverse possession according to the terms of the statute.”
In Brandon v. Parker, 124 Ark. 379, 187 S. W. 312, the Court said:
“We think the controlling point here, as it was in the case of Moore v. Morris, supra, is that the color of title as such was not cancelled. The owner in the case cited lost hiS title, but his deed, not having been cancelled by any order or judgment of court, remained as color of title and entitled him to the benefit of the provisions of Section 5057 of Kirby’s Digest [Ark. Stats. Sec. 37-102], upon complying with its terms.”
“In the case of Moore v. Morris, the title to the land In Inman v. Quirey, 128 Ark. 605, 194 S. W. 858, it is said: was wrested from the holders of the record title by adverse possession for seven years. The court held that notwithstanding this fact, the record title continued in existence and remained as color of title so that the holder of the record title could reacquire title to the lands by payment of taxes for seven years under section 5057 of Kirby’s Digest, the lands being wild and unoccupied lands. This rule was extended in Brandon v. Parker. There a person held lands under a donation deed and another person entered in possession of them within two years and acquired title by adverse possession. It was held that the donation deed of the first owner, although the lands were forfeited to the State under a void tax sale, remained as color of title so that the holder of it could acquire title by adverse possession for two years under Section 5061 of Kirby’s Digest. The effect of the holding in those two cases was that although the first owner lost his title by the fact that another had acquired title by adverse possession, his deed or paper title not having been canceled by any order or judgment of the court, remained as color of title.”
The Williamsons’ deed from the State has not been cancelled by any order or judgment of the Court. It therefore constitutes color of title and although the Improvement District may have acquired the legal title to the property by the foreclosure in 1937, the Williamsons have paid the taxes on unimproved and unenclosed land under color of title since 1943 when the Commissioner in Chancery deeded the property to W. I. Stout, Pinkerf’s predecessor in title. Williamson has therefore acquired title by adverse possession in accordance with Ark. Stat. § 37-102.
The decree is affirmed.
Justices Millwee and George Rose Smiti-i dissent. | [
-16,
111,
-12,
92,
-6,
-64,
10,
-118,
67,
-117,
-73,
83,
-19,
66,
92,
109,
-29,
125,
117,
120,
-90,
-77,
3,
34,
-48,
-77,
89,
-35,
-68,
-35,
-28,
-106,
76,
33,
-54,
53,
66,
-62,
-19,
92,
-50,
-127,
11,
77,
-39,
64,
52,
111,
80,
7,
85,
-66,
-9,
-81,
48,
-24,
73,
44,
-55,
41,
80,
-70,
-118,
5,
127,
23,
49,
117,
-102,
69,
96,
-120,
-112,
113,
-128,
-88,
115,
38,
-126,
116,
102,
-97,
40,
32,
118,
18,
-115,
-1,
-8,
-104,
14,
-19,
-115,
-90,
-126,
88,
10,
33,
-65,
-100,
125,
-128,
71,
-10,
-26,
-123,
93,
108,
7,
-50,
-44,
-93,
11,
-24,
-128,
3,
-9,
7,
96,
112,
-51,
-90,
92,
71,
119,
-101,
-122,
-15
] |
Lee Seamster, Chief Justice.
This is an appeal from a judgment of the Ashley Circuit Court dismissing the appellant’s action to have a materialmen’s lien declared on the property of appellees.
The appellant contends that the notice mailed to the appellees is a substantial compliance with Sec. 51-608, Ark. Stats. 1947.
The notice was sent by registered mail and reads as follows:
“Mr. and Mrs. Willis LeGrande
500 F. Arkansas St.
Crossett, Arkansas
Dear Mr. and Mrs. LeGrande:
‘ ‘ This is to notify you that within ten days after you receive this notice, we will file lien on your property located at 500 F. Arkansas in Crossett, Ark., for materials bought and put in this property.
“Unless provisions are made within this time to satisfy the indebtedness.
‘ ‘ Signed: Victor Scott
Triangle Bldrs. Supply”
The notice is defective because it does not set forth in the notice the amount claimed and from whom the same is due. The notice was not served in person by anyone authorized to serve such notice as required by the above cited section of law.
This court has held that the materialmen’s lien statute is in derogation of the common law and that anyone seeking its benefits must show a substantial compliance with the statute. Doke, Admr. v. Benton County Lumber Co., 114 Ark. 1, 169 S. W. 327; Conway Lumber Company v. Hardin, 119 Ark. 43, 177 S. W. 408.
The mailing of the notice by registered mail to the appellees is an insufficient compliance with this statute. The Supreme Court of Illinois, under a statute similar to ours, in the case of Sykes Steel Roofing Company v. Bernstein, 156 Ill. App. 500, held as follows:
“The notice of the subcontractor’s claim required by the statute to be served upon the owner was sent to Bernstein & Wolf, such owners, through the United States mail by registered letter. Such method of service of such notice is not a compliance with the statute and was abortive as a foundation on which to rest the right given by the statute to a recovery against the owners. The statute requires the service of such notice to be personal, and in this regard the statute being in derogation of the common law, a substantial fulfillment of its conditions cannot be dispensed with nor a recovery sustained when it appears a material requirement of the statute has not been pursued. ”
We think the holding in the above case is the correct statement of the law applicable to the facts in this case under the above statute. Finding no error in the trial court’s judgment, the case is affirmed. | [
-12,
104,
-44,
-100,
8,
-30,
58,
-69,
90,
-123,
39,
83,
-17,
-26,
28,
59,
-29,
63,
-15,
120,
84,
-78,
35,
98,
82,
-77,
-13,
-44,
56,
75,
-27,
-50,
92,
96,
-54,
-41,
-58,
0,
-127,
24,
-50,
3,
9,
-20,
-39,
80,
58,
-86,
16,
79,
81,
-122,
-70,
47,
25,
-53,
8,
44,
-7,
13,
88,
-16,
-69,
29,
127,
23,
-109,
20,
-104,
-121,
104,
8,
-104,
49,
0,
-24,
115,
-73,
-106,
116,
33,
25,
8,
42,
-29,
3,
-119,
-27,
-84,
-104,
14,
-14,
-99,
-90,
-110,
41,
43,
109,
-73,
-107,
108,
20,
70,
-2,
-18,
-123,
93,
108,
-117,
-122,
-12,
-73,
-97,
104,
-99,
15,
-18,
-123,
52,
117,
-49,
-65,
92,
71,
49,
27,
-114,
-110
] |
Paul Ward, Associate Justice.
Appellees, Mr. and Mrs. B. 0. Marshall, enrolled their son, Edwin, in the Wentworth Military Academy about the first of September, 1953, agreeing to pay the Academy, the total sum of $1,770.50 for a full school term of approximately nine months. Edwin attended the Academy until the Christmas vacation period and voluntarily failed to return. At that time appellees owed the Academy a balance of approximately $875.50 based on the charges for a full term.
The Academy filed suit against appellees for the said balance due and after a hearing the trial court directed a verdict for the Academy, appellant, in the sum of $884.24, being the balance due plus interest. On appellees’ motion the trial court then set the verdict aside and granted a new trial, from which order appellant prosecutes this appeal.
We have reached the conclusion that the trial court was right in the first instance and that it was error to set aside the first judgment and grant a new trial.
On September 1, 1953 Mrs. Marshall signed an application for the admission of her son to the Academy in which it was stated that said application was “subject to provisions and regulations published in your current catalogue.” A copy of the catalogue referred to had previously been mailed to appellees and a copy is made a part of the record. On page 61 of said catalogue under the heading of Refunds and Reductions there appears the following paragraph:
“Students are admitted to the Academy only on condition that they remain the entire year, unless suspended, dismissed, forced to withdraw on account of sickness or graduated from Junior College. In case of suspension, dismissal, or voluntary withdrawal, no money paid on tuition or other fees will he refunded and any unpaid balance shall become immediately due and payable. The terms set forth in this catalogue constitute the Academy contract and entrance in the Academy constitutes acceptance of this contract for the full year. ’ ’
On September 7,1953, at the time Edwin entered the Academy his father signed an Agreement with the Academy showing in detail the expenses of his son “at the Academy for the entire school year from Sept. 7, 1953, to May 31, 1954.” This Agreement shows the total expenses for the school term to be $1,770.50. It further shows receipt of payment as of that date in the sum of $370.50 with $175 due October 1, 1953 and the same amount due on the first of each month thereafter up to and including May 1, 1954.
It is not disputed that Edwin quit the Academy voluntarily the latter part of December 1953 and did not return or offer to do so. He did however finish out the school term at Berryville.
Under the above factual situation appellees were obligated to pay the full amount for one full term of school.
The trial court, in setting aside the first judgment, gave as his reason the fact that the contract on which “plaintiff’s cause of action was based is unenforcible because of lack of mutuality. ” In reply to-this appellant takes the position that the contractual relationship existing between appellant and appellees was what is termed a unilateral contract, citing 12 Am. Jur., page 512, § 14, where it is stated that: ‘ ‘ The doctrine of mutuality is inapplicable to unilateral contracts.” We, however, do not think this contention on the part of appellant is a complete answer to the reason given by the trial court for its action. It is true of course that appellant has signed no paper or agreement obligating it to keep Edwin Marshall in school for the fnll term and provide him while there with board and free tuition, but the fact remains that when they accepted Edwin as a student they thereby became obligated to fulfill all the provisions set forth in the catalogue and they were thereafter bound just as they would have been had they signed a wi'itten contract.
We surmise that the trial judge felt there was no “mutuality” because he was under the impression that the Academy was not obligated to keep Edwin in school for the full term and that it could discharge him at its own volition and without cause. We do not think this is a fair interpretation of the contractual obligation imposed on the Academy by the terms of the contract. At page 48 of said catalogue under the heading “Regulations” there is this paragraph:
“The Academy reserves the right to demand the withdrawal of any student without the making of specific charges. If a boy’s presence is felt to be unwholesome, or if he has a degrading influence on those around him, or has been guilty of conduct unbecoming a gentleman, he will be asked to leave.”
In our opinion the above quoted paragraph imposes on the Academy the obligation to keep a student for the entire school year and that it would have no right “to demand the withdrawal” of such student except for one of the reasons therein stated. We can understand the wisdom of the Academy not being obligated to prefer “specific charges.” To have to do so would compel the Academy unnecessarily to embarrass the student or his parents.
Although the exact issue presented here has never been directly passed on by our court, it has been considered by many text writers and by other courts. In Williston on Contracts, § 1352 the rule applicable here is stated this way:
‘ ‘ In several cases the right of a school to recover the full annual tuition charge when the pupil was expelled for proper cause, or left without reason before the close of the year has been allowed. The only justification for this can be the fact, if it is a fact, that one less pupil involves no saving of expense to the school.”
In American Law Reports, Annotated Volume 69 at page 712 we find this statement:
“Although a few cases assert different views, it has been held generally that, where a contract for schooling is for a specified period, for which a definite payment is to be made, even where it covers hoard as well as tuition, and there is no general stipulation for a deduction or refund in the event of inability to attend (and particularly if the contract provides that no deduction will he made for absence) the entire contract price becomes payable, regardless of nonattendance by the pupil or student for part or all of the time. ...”
In the case of Hall v. Mt. Ida School for Girls, Inc., 258 Mass. 464, 155 N. E. 418, 50 A. L. R. 1495, appellant paid a full year’s tuition for her granddaughter to attend appellee school. The granddaughter married within two or three months after the school term began and was expelled, and appellant sued. The trial court permitted recovery, hut the Supreme Court reversed that judgment. It was stated in the opinion that it was agreed ‘ ‘ that contracts for hoard, lodging and instruction at a private school for a specified time have always been held to he entire contracts and not divisible. ’ ’
In Peirce v. Peacock Military College, (Tex.) 220 S. W. 191, where the same issue as here was presented the court in holding that the school was entitled to recover for a full term, among other things, said:
“We find that contracts made with schools for hoard, lodging, and tuition, which contain provisions clearly showing that the contract is for an entire session and that no deduction is to he made if the student leaves before tbe expiration of the session, have been held to authorize a recovery of the price stipulated to be paid for the entire session. ’ ’
Somewhat the same reasoning used and the same conclusion reached in the above cited cases will be found in William v. Stein, et al., 166 N. Y. S., 836 and Hitchcock Military Academy v. Myers, 76 Cal. App. 473, 245 Pac. 219.
The case of M. F. Teeter v. Horner Military School, 165 N. C. 564, 81 S. E. 767 [annotated in 51 L. R. A. at page 975, et seq.j holds that the school could collect the full amount designated for a full term of school where the student was expelled and where the catalogue contained rules for discipline similar to the ones in the case under consideration. In that case the catalogue provided that “applicants are accepted with the express understanding that they will submit to our authority in every respect. A boy whose conduct is hurtful to the scholarship and morals of his associates will be expelled. ’ ’
This court held in the case of Kentucky Military Institute v. Cohen, 131 Ark. 121, 198 S. W. 874, that the school could not recover the full amount where the student was expelled without good reason. Of course this question need not be considered here because Edwin was not expelled but voluntarily quit school.
Appellees for an affirmance rely on Holton v. Cook, 181 Ark. 806, 27 S. W. 2d 1017, 69 A. L. R. 709, but that case is easily distinguishable on the facts from the case under consideration. There the student became physically unable because of defective eyesight to continue in the school until the end of the term. This fact was recognized by the court and made the basis of the conclusion there reached. The court there distinguished its holding from the Hall case and the Peirce case above cited.
Since there is no dispute about the amount involved here and since it is not denied that Edwin left the school voluntarily, it is our conclusion that the contractual relationship created by the instruments above mentioned imposed the liability on appellees to pay the balance due for a fall term. Therefore the cause is reversed with directions to the trial court to enter judgment in accordance with this opinion.
Justice Millwee dissents. | [
48,
-6,
92,
124,
26,
32,
58,
-98,
116,
-61,
39,
83,
-17,
71,
16,
105,
-59,
111,
96,
107,
-49,
-77,
98,
72,
-16,
-13,
-5,
-43,
48,
102,
-27,
23,
76,
32,
-118,
-107,
-122,
-117,
-63,
-44,
-114,
37,
-82,
69,
-39,
-126,
48,
53,
20,
15,
49,
-97,
-13,
44,
20,
67,
40,
44,
125,
-71,
-128,
-75,
7,
1,
-1,
86,
-80,
53,
-66,
67,
88,
46,
24,
53,
0,
-23,
122,
-90,
-122,
116,
35,
-103,
-119,
98,
98,
-127,
97,
81,
-104,
-116,
46,
82,
61,
-90,
-109,
89,
99,
13,
-74,
-100,
125,
16,
15,
124,
-30,
-107,
28,
100,
35,
-53,
-44,
-79,
-116,
-16,
-98,
26,
-17,
-119,
48,
117,
-59,
-78,
93,
71,
58,
-77,
-122,
-70
] |
Minor W. Millwee, Associate Justice.
This appeal is from a decree making permanent a temporary injunction against picketing, the making of threats and the commission of acts of intimidation and violence in connection with a labor dispute.
Appellee, F & C Engineering Co., hereinafter called ‘ ‘ plaintiff, ’ ’ was one of approximately twenty-five prime contractors engaged in construction of the Little Rock Air Force Base, near Jacksonville, Arkansas, by the U. S. Army Engineers in the early part of 1955. Appellants, hereinafter called “defendants,” include J. "W. Smith, Assistant Business Agent of International Union of Operating Engineers, Local 382, and certain employees of plaintiff who were sued individually and as representatives of said union. Some of the defendants were members of the union and some were not.
As an officer of Local 382, defendant, J. W. Smith, sought to negotiate with plaintiff relative to overtime pay to its employees for hours worked in excess of 40 hours per week and for certain union recognition in the organization and hiring of operating engineers under plaintiff’s two contracts with the Army Engineers. Plaintiff paid its employees overtime for hours in excess of eight per day, but it was one of very few contractors on the project who refused to pay overtime for hours in excess of 40 hours per week. As a result of plaintiff’s refusal to deal with the union in these matters, Smith and other union representatives established a picket line at plaintiff’s batch plant which is located just outside the air base proper on March 3, 1955. This plant is the storage and dispensing area for all concrete materials used by plaintiff, and about 135 men were normally employed there.
On March 7, 1955, plaintiff filed the instant suit for injunction. Based upon testimony then presented, the Chancellor issued a temporary order restraining defendants, their agents, employees and members from picketing plaintiff and its places of business and from threatening or committing acts of intimidation or violence against plaintiff’s business, property, agents, employees and persons seeking to do business with plaintiff. After a full hearing on April 1, 1955, the case was taken under advisement and on April 22, 1955, a decree was entered making the temporary injunction permanent. Defend ants’ subsequent motion to modify the decree was overruled on April 27, 1955.
As a basis for the decree, the Chancellor also filed an exhaustive and well considered opinion in which he made findings of fact as follows:
“1. On Thursday morning, March 3, 1955, a picket line was established at the site of a batch plant operated by the plaintiff located a short distance outside of the Little Rock Air Force Base limits, and the picket line was maintained from that time until after the issuance of the Court’s temporary restraining order on Monday, March 7, 1955. The entrance and exit roads to and from the batch plant are narrow, unpaved roads, and although only four men were actually engaged in the carrying of picket signs, the total number of men in the immediate locality varied from twelve or fifteen to fifty or sixty. The signs contained language to the effect that the plaintiff was unfair to and destroying certain working standards of the Operating Engineers’ Union. In addition to the men, there were a great number of cars parked up and down the road running by the batch plant. The large number of men was in no wise necessary to disseminate information or inform the public of the nature of the dispute, and the presence thereof served only to add emphasis to the threats and other acts which will be hereinafter set forth and the presence of these men undoubtedly had an adverse influence upon the employees who continued to work. On one occasion one of the roads was blocked by a pickup truck. Mr. Ray Spillers, superintendent of the plaintiff, requested of the men present at the picket line that the owner of the truck move it since it was blocking the road. Mr. Spillers was informed by one of the men in a belligerent manner that the truck would not be moved and that if Mr. Spillers didn’t like it he could get out of his vehicle. Mr. Spillers left to avoid an incident and the truck was thereafter moved. This incident occurred on Friday morning, March 4, 1955. In this regard, Mr. Spillers gave instructions to all of the employ ees of the plaintiff to avoid any kind of an incident with the strikers and men on the picket line.
“2. On Thursday, March 3, 1955, Brady Lawhorn was stopped on one of the batch plant roads by the defendant, Wayne Sowell, and informed in a belligerent manner and with the use of curse words that Lawhorn had better not cross the picket line the following morning or he (Lawhorn) would be whipped. During the remainder of the time that the picket line was maintained, Mr. Lawhorn walked a considerable distance out of his way in order to avoid crossing the picket line, and according to his testimony in order to avoid the likelihood of being whipped. Sowell admitted that he did stop Lawhorn, but that the controversy was over a lunch which Sowell alleges that Lawhorn had taken sometime previously and had not paid for. The Court is not impressed with this explanation, which was emphatically denied by Lawhorn, in view of the fact that Lawhorn was stopped at the picket line and, the Court believes, was threatened. This conclusion is reached by the Court in view of the other incidents that occurred and this appears to have been but one of several acts in the defendants’ course of conduct to achieve their objectives by intimidation and coercion.
“3. On Thursday, March 3, 1955, L. C. Rackley, at that time a crane operator for the plaintiff, was accompanied through the picket line by Warren Dixon, truck foreman for the plaintiff, and other men, and they were cursed as the vehicle moved into the batch plant site. The evidence is clear that Rackley had been frightened prior to that time and quit immediately after this occurrence. A former employee of the plaintiff, Otis Nicholas, testified for the defendants that he accompanied Rackley and Dixon and that he heard no statements made. Nicholas was subsequently discharged by the plaintiff, and although he did not take sides with the defendants until after his discharge he did appear in court to testify on their behalf. There is no dispute in the evidence that something frightened Rackley and that he quit after this incident, and the Court is convinced that Rackley left the employ of the plaintiff because he feared for his own safety.
“4. On Friday afternoon, March 4, 1955, the defendant, W. E. Clements, and another man told plaintiff’s employees, Oliver Beck and A. M. Foster, that somebody was going to get ‘ their head skint. ’
“5. On Friday night, March 4, 1955, Frank Rogers, General Foreman of the plaintiff, was attacked without notice or provocation in Rixie’s Cafe located on the highway near Jacksonville, and a blackjack was used in this attack. The persons making the attack were identified by nicknames only, one called ‘Talley’ and one called ‘Alabam.’ ‘Alabam’ was positively identified as a joint machine operator working for Tecon Corporation on the Little Rock Air Force Base and the proof shows that Tecon was working under a contract with the defendant Union and was running a union shop. There was no provocation on the part of Rogers or any other employee of the plaintiff in connection with this attack and the evidence disclosed no reasons for the attack other than those connected with the dispute involved herein. On the next day, Saturday, March 5, 1955, the defendant Clements and another person talked to plaintiff’s employee, Henry Garrett, and other employees, urging them to join those picketing the plaintiff, and during the conversation pointed out in substance to the plaintiff’s employees that they (the employees) ‘had seen what happened to Frank Rogers the night before. ’ In view of the previous threat that someone was going to get his ‘head skint’; the absence of anything to indicate a reason for anyone other than the defendants or those working on behalf of the objectives of the defendants having responsibility for the beating; the administering of the beating by a Tecon employee performing an operating engineer’s job for Tecon, which was running a union shop and which had a contract with the defendant union; the fact that the defendant, J. W. Smith, was in the cafe a very few minutes after the beating; and the fact that the following day the defendant Clements, admittedly a union member, pointed out to other employees of the plaintiff that they had seen what happened to Frank Eogers the night before, the Court can draw but one inference: Person or persons administering the beating were seeking to accomplish the objectives of the Union by acts of the same unlawful and coercive nature engaged in by other defendants, and, for purposes of responsibility, the defendants are chargeable with these acts. Clearly the same unlawful purpose was pursued and the connection is obvious. The concert of action cannot possibly be explained by sheer coincidence and the inference of a conspiracy must be and is drawn by the Court. In addition, after the beating of Frank Eogers, the plaintiff’s employees found a pickup truck belonging to the plaintiff which had been driven by Eogers to the Cafe had been tampered with and damaged so that it had to be hauled away and repaired before it could be placed in operation.
“6. The evidence reflects a series of contacts with employees made by Union men which might be explainable from the standpoint of persuasion if considered as isolated incidents, but when considered in the light of the other acts of intimidation and violence are explainable only as a deliberate course of intimidation. On Friday, March 4, 1955, plaintiff’s employees, Norman Lewis and Henry Garrett, were stopped by the defendant, W. E. Clements, and another person in a belligerent manner and Garrett and Lewis left in order to avoid an incident. Defendant Clements with another person came by the home of Henry Garrett looking for the latter and the defendant, M. L. Patterson, came to the home of employee, E. E. Shaver. On Thursday night, March 3,1955, employee, W. H. Alexander, was followed from the batch plant by the defendant, J. W. Smith, both in automobiles, to the North Little Eock Police Station, at which time Alexander stopped and obtained a police escort to his home. The defendant Smith testified that he simply wanted to talk to Alexander, but admitted that he followed him, and the intimidating effect of Smith’s action was the same regardless of the explanation offered. On Saturday, March 5, 1955, one of the men present at the site of the picketing attempted to stop W. H. Alexander as the latter was driving into the batch plant, and when Alexander did not stop this man hit the automobile with a rock, the approximate size of a man’s fist.
44 On one occasion certain employees were stopped by the defendant, Bull, and other persons, and the person who stopped the vehicle was waving a club at the time and had been drinking. During the conversation the men in the car were advised that R. E. Shaver was the man that they wanted to get and Mr. Shaver testified that he had been materially assisting the plaintiff in obtaining replacements.
4 4 7. The plaintiff was plagued with numerous flats on its batch trucks during the period involved and the evidence reflected that this had not been the situation prior to this time nor has it been the situation since. The plaintiff was forced to police the batch plant entrance and exit roads each morning and pick up nails, and a comparison between the numerous nails found on the entrance and exit roads to the batch plant and those in the tires causing the flats revealed that they were identical. The defendants denied that they had placed any nails in the road. The Business Agent for the Laborers ’ Union, who maintained a picket for some two days after Monday, March 7, 1955, testified that his Union did not place any nails in the road and that if they were placed there it was done by someone else. The facts are clear that the flats did occur and since the nails found in the tires and those on the roads were identical, the only inference that the Court can draw is that they were placed there by the only persons having a reason to place them there, the defendants.
4 4 8. On one occasion a paving machine was found drained of oil and water and otherwise damaged and would have been substantially damaged had it been placed in operation.
“The defendants had several witnesses who gave negative testimony as to acts of violence and intimidation, several of whom were law enforcement officers. The officers testified that they were there pursuant to a request made and the Court recognizes that it would be contrary to human nature for the defendants to participate in any of the acts disclosed by the evidence while the officers were present. ’ ’
In questioning the validity of the injunction, defendants argue that the Chancellor erred in permitting plaintiff’s general superintendent and others to testify regarding numerous flat tires and the finding of several pounds of roofing nails scattered on the batch plant road and in permitting the pleadings to be amended to conform to such proof. Plaintiff had alleged there were “numerous instances of rock throwing and damage to plaintiff’s property,” which would be placed in evidence, but there was no specific allegation in reference to tire damage. Although defendants objected to the court’s action in permitting the pleadings to be amended to conform to the proof on this issue, there was no plea of surprise nor request for a continuance. The amendment did not involve a new cause of action and defendants introduced testimony to rebut that offered by plaintiff on the issue. In similar circumstances, we have repeatedly held that it is within the discretion of the trial court to permit the pleadings to be amended to conform to the proof. Duff v. Ayers, 156 Ark. 17, 246 S. W. 508; Mo. Pac. Transportation Co. v. Williams, 194 Ark. 852, 109 S. W. 2d 924. There was no abuse of such discretion here.
Defendants also contend the court erred in allowing plaintiff’s superintendent to give certain testimony in violation of the hearsay rule. Defendants’ abstract of the record shows that the Chancellor sustained objections to most of the testimony now challenged. When asked whether he had difficulty retaining men on the job, the superintendent answered in the affirmative and stated that he had numerous calls at home at nights because men were afraid to come back on the job. The witness was neither asked nor did he attempt to state what any individual told him. We think the trial court correctly held the testimony admissible to show the effect of the threats and other acts of intimidation proved. One of the well recognized exceptions to the hearsay rule is that relative to the admission of statements or declarations showing a presently existing state of mind, feeling or attitude such as fear or ill will in the declarant. McCormick on Evidence, § 268; Wigmore on Evidence (3rd ed.), § 1730. A pertinent and relevant issue here was whether the conduct, threats and acts of the defendants were actually intimidating, and we find no prejudicial error in the court’s action in admitting this evidence. We have examined other objections made by defendants to the court’s rulings on the admission of certain testimony and find them to be without merit. Even if error was committed in the admission of the evidence objected to by defendants, we are still of the opinion that a preponderance of the testimony supports the findings of the Chancellor on'this trial de novo. Turner v. Smith, 217 Ark. 441, 231 S. W. 2d 110.
The principal contention for reversal is that the evidence here reveals a state of facts involving incidents so isolated, disconnected and disassociated as not to warrant the issuance of a permanent injunction. Pursuant to this contention, defendants make objections to certain of the trial court’s findings of fact which have already been set out. Typical of these is the assertion that the court found that the pick-up truck blocked one of the roads to the batch plant in Finding No. 1 when, in fact, the truck only “partially” blocked said road. Other objections involve primarily the action of the court in accepting as credible the testimony of plaintiff’s witnesses on certain issues when such evidence was to some extent contradicted by witnesses for the defendants. It would unduly prolong this opinion to set out these various conflicts in the evidence. It is sufficient to say that the Chancellor was in a more favorable position than this court to judge credibility, and after careful considera tion of all the evidence we think a clear preponderance thereof supports the court’s findings of fact.
It is. well settled by the decisions of the U. S. Supreme Court and our own cases that peaceful picketing is allowed under the constitutional guaranty of freedom of speech in order that a union may acquaint the public with the fact and nature of a labor dispute and solicit public support in any lawful manner to prevail in the controversy. Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093; Local Union No. 313 v. Stathakis, 135 Ark. 86, 205 S. W. 450, 6 A. L. R. 894. It is equally settled that the law does not countenance the use of threats, intimidation, force, coercion, violence or other unlawful means, however laudable the motive or purpose of the strikers. Riggs v. Tucker Duck & Rubber Company, 196 Ark. 571, 119 S. W. 2d 507; 31 Am. Jur., Labor, § 240. In this connection the U. S. Supreme Court has held that the state still may exercise “its historic powers over such traditionally local matters as public safety and order and the use of streets and highways.” Allen-Bradley Local, W.E.R.M.W. v. Wisconsin Employment Relations Board, 315 U. S. 740, 62 S. Ct. 820, 86 L. Ed. 1154.
Although the object of a strike may be both lawful and laudable, judicial restraint is permissible where the strike is attended with real or threatened violence, force, intimidation or conduct otherwise unlawful or oppressive, such as mass picketing or even peaceful picketing where enmeshed with violent conduct. Thus peaceful picketing may be enjoined without violating the right of free speech where previous unisolated acts of violence by members of the picketing union or their sympathizers give to continued picketing, even though peacefully carried on, a coercive effect. See Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 61 S. Ct. 552, 85 L. Ed. 836, 132 A. L. R. 1200, where the court held that picketing which in itself is peaceful may be coercive when set in a background of violence. The court said that “utterance in a context, of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution.”
In Local Union No. 858 Hotel and Restaurant Employees Int’l Alliance v. Jiannas, 211 Ark. 352, 200 S. W. 2d 763, we held that acts of violence and coercion were committed with such systematic persistence as to warrant a finding that they would be continued unless restrained where pickets walked very close to the door and on several occasions had to be pushed aside by customers to gain entrance to the restaurant being picketed, and on one occasion a customer was knocked down with a pair of brass knucks and severely injured. In that case the following statement from 31 Am. Jur., Labor, § 240, supra, was approved:
“Force threatened is the equivalent of force exercised. In many cases, it has been observed, it is difficult to draw the line of demarcation between intimidation and inoffensive persuasion. But even when the acts of the strikers, although unaccompanied by violence or threats, are such annoyance to others as to amount to coercion or intimidation they are unlawful. ’ ’
Perhaps the rationale of the result reached in the Meadowmoor Dairies and Jiannas cases, supra, is best stated by the annotator in 132 A. L. R. 1221 as follows:
“The reason most frequently advanced by the courts in justification of the blanket injunction against all picketing, where there has been past violence or other unlawful conduct, is that an injunction of such breadth is necessary to prevent future excesses and coercion, which, in the light of the past conduct, may reasonably be anticipated.”
Numerous cases are cited in support of the statement.
It is true that the threats and acts of intimidation and violence in the case at bar are not as great as those involved in the Meadowmoor and Riggs cases, supra, but they are greater in degree than those involved in the Stathakis and Jiannas cases, supra, and the cases of Cafeteria Employees Union v. Angelos, 320 U. S. 293, 64 S. Ct. 126, 88 L. Ed. 58, and Local No. 802 v. Asimos, 216 Ark. 694, 227 S. W. 2d 154, upon which defendants rely. The Chancellor found that the threats and acts of intimidation, violence and property damage reflected by the proof here were not isolated and disassociated incidents, but were enmeshed in, and inseparably connected with, the picketing. A preponderance of the evidence supports this conclusion.
As to defendants’ contention that the trial court erred in refusing to modify the injunction to permit peaceful picketing, what we said in the recent case of Self v. Taylor, 217 Ark. 953, 964, 235 S. W. 2d 45, is applicable here:
“One final point must be mentioned. Appellants argue that the court went too far in making the injunction ‘Permanent.’ In answer to a similar contention in Milk Wagon Drivers Union v. Meadowmoor Co., 312 U. S. 287, 61 S. Ct. 552, 85 L. Ed. 836, the U. S. Supreme Court said: (at p. 298) ‘The injunction which we sustain is ‘permanent’ only for the temporary period for which it may last. . . . Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted. ’ The injunction does not prevent appellants from bargaining in good faith for a legal contract. If legitimate differences arise not connected with the closed shop demand, which would warrant peaceful picketing, they may apply to the Chancery Court for appropriate modification of the injunction. If such modification is erroneously denied, an appeal always lies to this.court.”
If and when defendants are able to show the trial court that peaceful picketing can be carried on by the union in such manner as to avoid the likelihood of a repetition of the unlawfulness disclosed in this record, they are free to do so. Such showing had not been made at the time defendants sought a modification of the instant injunction.
Affirmed.
McFaddin, J., not participating. | [
-112,
-22,
-68,
-52,
8,
97,
56,
-101,
81,
-91,
-59,
-45,
-19,
-57,
69,
89,
-17,
109,
116,
123,
99,
-77,
0,
112,
83,
-45,
91,
-59,
-72,
79,
-12,
95,
92,
48,
66,
-33,
-30,
-64,
-59,
28,
-50,
37,
111,
-21,
89,
0,
48,
123,
20,
79,
17,
-68,
-13,
46,
24,
-64,
40,
36,
95,
40,
99,
-7,
-126,
-116,
127,
20,
-93,
0,
28,
7,
-40,
31,
-104,
48,
-83,
72,
83,
-90,
-128,
116,
99,
-7,
4,
34,
99,
18,
-95,
-17,
124,
-8,
22,
-68,
-115,
-92,
-109,
56,
43,
68,
-74,
-107,
120,
-106,
-122,
126,
110,
69,
30,
104,
-125,
-53,
-10,
-77,
-97,
120,
-108,
7,
-21,
-125,
16,
112,
-49,
-86,
95,
71,
83,
-97,
-57,
-104
] |
George Rose Smith, J.
The principal question in this case is whether a certain conditional sales contract, now attacked by the appellee for usury, was executed before or after the decision became final in Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973. That decision overruled a series of earlier cases but stated that the new rule would apply only to transactions entered into “after this opinion becomes final.” The contract now before us would have been valid under the theory that formerly prevailed but would be usurious and void under the doctrine announced in the Hare case. The chancellor held the agreement to be' usurious and granted the plaintiff’s prayer for cancellation.
The opinion in the Hare case concededly became final when the petition for rehearing was denied on June 30,1952. "We know, without proof, that the court’s action was announced within a few minutes after nine o’clock on the morning of June 30. Supreme Court Eule 1. Late that afternoon the appellee bought a car on credit and executed the contract which he now contends to be void for usury. It is his position that since the purchase was made several hours after the court’s announcement of its action, the case falls within the new principle adopted by this court.
In answer to this argument the appellant relies upon the familiar rule that the law is not concerned with fractions of a day. Hence, it is said, the former opinion did not become final until the end of June 30. The flaw in this argument is that the appellant would have us disregard the wrong fraction of a day. When a change in the law becomes operative upon a certain day, the rule as to fractions of a day results in that entire day being included in, rather than excluded from, the operative effect of the new law. For example, a statute which contains a valid emergency clause is effective during the whole day on which it is approved by the governor. Lee Wilson & Co. v. Wm. R. Compton etc. Co., 103 Ark. 452, 146 S. W. 110. Again, where a city fireman died before eight o’clock in the morning it was held that his widow was entitled to a pension under an ordinance adopted later in the day, since the law was regarded as being in force for the entire day. McLaughlin, Trustee, v. Lovett, 204 Ark. 708, 163 S. W. 2d 826. Thus under the principle advanced by the appellant the Hare opinion became final at the first moment of June 30, not at the last moment of that day.
It is also insisted that to apply the new rule of the TIare ease to the activities of June 30 would in practical effect deprive the appellant and other lenders of any notice that the law had been changed. It is plain, however, that ample notice was actually given. The original Hare opinion was announced on May 26. Had no petition for rehearing been filed it would have become, final at the expiration of seventeen days. Supreme Court Rules 20 and 22. Hence if the appellant was deliberately relying upon the old law more than a month after this court had issued its warning, this lender must have known that a petition for rehearing was pending and must also be taken to have known that the opinion would be final during the entire day in which that petition was acted upon.
The remaining contention, that the appellee should not bo permitted to keep the car upon cancellation of the purchase agreement, was rejected in Universal C. I. T. Credit Corp. v. Stanley, 225 Ark. 96, 279 S. W. 2d 556, and heed not be reexamined.
Affirmed. | [
98,
112,
-12,
78,
74,
64,
2,
27,
-47,
-56,
39,
83,
45,
-62,
20,
57,
-61,
111,
85,
107,
84,
-93,
39,
104,
-46,
-13,
-63,
-43,
59,
77,
44,
92,
76,
40,
66,
-107,
-26,
-53,
73,
30,
30,
-128,
-24,
97,
-71,
-112,
48,
105,
16,
11,
69,
-97,
-13,
-82,
25,
75,
104,
40,
121,
40,
-16,
-7,
-101,
-123,
127,
4,
-95,
68,
-78,
-121,
-40,
-114,
-104,
61,
88,
-24,
114,
-74,
-122,
124,
37,
27,
8,
2,
103,
-128,
33,
-20,
-40,
-100,
38,
-10,
-115,
-89,
-106,
120,
35,
73,
-74,
-99,
110,
21,
-90,
126,
-26,
21,
-103,
105,
19,
-117,
-14,
-77,
-121,
127,
-98,
11,
-18,
19,
48,
112,
-17,
-24,
94,
119,
111,
19,
-121,
-8
] |
Lee Seamster, Cliief Justice.
The appellees, Mr. and Mrs. William C. Carlson, owned and operated a service station, café and tourist court which was located about seven miles south of Arkadelphia, Arkansas, in Clark County, on Highway No. 67. The right-of-way of this highway was to be widened in 1951 and it became necessary for the State to acquire that portion of the appellees’ property on which these buildings were situated since they were located on a portion of the proposed right-of-way for the highway. The State and the County reached a settlement with appellees for the value of the property to be taken for this purpose. One item in the settlement agreement was the stipulation that the State was to move the buildings from their location to another location on the appellees’ property which was a proper distance from the proposed new right-of-way of Highway No. 67, and have them “set up in the same condition as they were before moving and without alteration.”
The structures were to be moved and relocated in accordance with job plan No. 7403 of the State Highway Department. The plans for job No. 7403 provided that the structures were to be moved back and reconstructed in the same condition as they were before the moving.
Prior to the settlement agreement, the appellant, BucTon Construction Company, Inc., an Arkansas Corporation with its principal place of business in Prairie County, Arkansas, was awarded the contract by the State to perform the work necessary for the completion of job No. 7403. Appellees alleged that they had no contract with the appellant. At the completion of this work the appellees brought this suit in Clark County Circuit Court, against the appellant, alleging that BucTon Construction Company, Inc. took down such buildings and equipment in a most careless, negligent and destructive manner, so that much of the materials and equipment in said buildings was badly damaged and its usefulness destroyed. It is contended that the appellant then re-erected such buildings and appurtenances in a careless and slovenly manner. Therefore, as a result of the carelessness and negligence of the appellant in taking down, moving and re-erecting the buildings and equipment the appellees’ property was damaged in the sum of $40,000.00. The appellees set out in detail the many items that had been damaged and the manner in which the damage had occurred. This included such items as flood lights, which were used to light the premises and metal troughs which had been installed under the eaves of the buildings for drainage purposes. It is contended that these two items were removed and were never replaced.
The appellees testified to having spent more than $7,000.00 for labor and materials to repair the damages that had been inflicted to their buildings. This was in addition to their own labor which had been expended to try to restore the buildings to their former condition. They stated that there was yet other repairs to be made before the buildings and equipment could be restored to the former condition that existed before the removal and re-erection of the buildings and equipment.
The appellant filed a motion to dismiss upon the grounds that the venue would not be in Clark County, Arkansas, for the reason that: (a) the suit was upon a breach of contract; (b) that the appellant is a domestic corporation with its principal office in Prairie County, and therefore, the venue Avould be in Prairie County. This motion was overruled by the court and the appellant filed an answer, reserving its rights under the motion to dismiss on the jurisdictional grounds. The answer denied all the material allegations of the complaint and as a further defense set up its contract with the State. It attached a copy of the plans and specifications for job No. 7403. The plans and specifications required the contractor to move the buildings and equipment from their location to another location and thereby re-erected and set up in the same condition as they were before removal. The contract that the appellant had with the State on this job provided that the engineer ip charge of supervision would be the final arbitrator over the work performed by the contractor and that he (contractor) AATould be bound by the engineer’s estimates and would be paid upon the engineer’s approval of the work. The appellant also alleges, as a defense to the suit, that it performed the work of remoAdng and rebuilding the buildings on the appellees’ premises under the approval of the Statu supervisor for the State Highway Department and that, it has been paid for the work performed. It is stated that if any defects appear in the work then the liability would fall upon the State. It is contended that the appellees had a contract -with the State and not with the appellant; that the appellant’s contract was with the State and that it had completed its contract in accordance with the terms in every respect and in a workmanlike manner; that it reconstructed the appellees’ buildings according to the plans and specifications furnished it by the State and the drainage for the new location of said buildings was put in according to plans furnished it by the State. Therefore, it is alleged, that if any defects are found with its Avork in performing its contract, the fault would be the responsibility of the State, not the appellant.
This case was submitted to the jury; whereby the jury awarded the appellees the sum of $6,000 for damages other than drainage damages. There was no sum awarded for drainage damages. The Court awarded a judgment accordingly.
For reversal, the appellant insists that the lower court erred in overruling its motion to dismiss because of improper venue. This question of venue and jurisdiction is covered by the Arkansas Statutes.
Section 27-601, Ark. Stats., provides: “Actions for the following causes must be brought in the county in which the subject of the action, or some part thereof, is situated, except as provided in Section 27-616; 4. For injury to real property. ’ ’
Section 27-618 of said Statutes further provides: “In any action which may lawfully be brought only in some one or more particular counties in this State, and not in any county of the State in which service may be had on the defendant, so that the venue for such action is local and not transitory in nature, summons may be served upon the defendant or defendants in such action in any county in this State. ’ ’
Section 27-605 of said Statutes, the one under which appellant contends the venue is in Prairie County, provides: “An action, other than those in Sections 84, 85 and 90 (27-601 — 27-603) against a corporation created by the laws of this State may be brought in the County in which it is situated or has its principal office or place of business, or in which its chief officer resides. . . . ”
In order to determine the question presented here, it must be determined whether the appellees have alleged damage to real property. If they have, then the suit must be brought in Clark County. The section which the appellant relies upon says that suits against a domestic corporation may he brought in the county in which it is situated, but that statute specifically exempts suits for damage to real property. The appellees in this case have alleged, among other things, that they have been damaged by the carelessness and negligence of the appellant in moving the buildings, and also claim for damage to the land for improper drainage. The allegation of improper drainage is sufficient to give the lower court venue and therefore jurisdiction to try the case.
Further, under the allegations of the appellees ’ complaint it is clearly evidenced that the buildings located on the real property owned by them before they were moved were a part of the realty. A further analysis of the suit indicates that it was never the intention of either party that the buildings in any manner be converted to personal property. They were simply to be moved back off the right-of-way of the highway. The mere transitory action of moving the buildings back could not be considered sufficient to legally change their status. They were certainly a part of the realty before the operation and are a part of the realty now. An action for injury to real property is local in nature and must be brought in the county in which the land is situated. See Mayner v. Utah Const. Co., 108 Fed. Supp. 532. Damages to* buildings by highway construction contractor is an action for damages to land and must be brought in the county where land lies. See Southeast Const. Co. v. Wood, 223 Ark. 325, 265 S. W. 2d 720; Southeast Const. Co. v. Wood, 223 Ark. 328, 265 S. W. 2d 722. This court has held in the case of Arkansas Highway Commission v. Holt, 190 Ark. 868, 81 S. W. 2d 929, that: “A contractor who injures another’s land while engaged in constructing a state highway may be sued in the county where the injury was committed. ’ ’
The appellant next contends that the lower court erred in refusing to grant appellant’s requested instruction for a directed verdict. It is contended that the appellees had no cause of action, either ex contractu or ex delicto, for any of the alleged items of damage, by reason of the appellant’s contract for job No. 7403 with the State Highway Department. The trial court was correct in overruling the appellant’s request for an instructed ver diet in its favor. The completion of its contract with the State and the State’s approval, thereof, does not relieve the appellant from liability for its negligent act, if it results in injury to appellees’ property. The case of Bickford v. Richards, 154 Mass. 163, 27 N. E. 1014, 26 Am. St. Rep. 224, held: “The plaintiff’s right of action does not depend on the existence of a contract between himself and the defendants, as would be the case if he were suing for damages resulting from some non-feasance on their part, but on the fact that they have wrongfully and negligently done, or caused to be done, something to his property which has injured it. The gist of the action is the breach by the defendants of the duty which they owed to the plaintiff not to injure his property by any wrongful or negligent acts of theirs. ’ ’ See also Arkansas Highway Commission v. Holt, 190 Ark. 868, 81 S. W. 2d 929; Southeast Const. Co. v. Wood, supra; 12 Am. Jur., § 458, p. 1042.
The jury was previously instructed as to the generality of the law of negligence. The court also instructed the jury that if appellant performed the work of removing and re-erocting the buildings and appurtenances in a negligent, careless or unworkmanlike manner; and if such negligent, careless or unworkmanlike work proximately caused damage, and without which such damage, if any, would not have occurred, the appellant would be liable for the damage caused by its negligence.
The trial court gave instruction No. 9 on the measure of damages. The instruction stated: “If you find for the Carlsons and against BucTon, your verdict should be for such a sum as you believe from a preponderance of the evidence will reasonably be necessary to restore the property to as good condition as it was prior to the movement; provided all elements of damage assessed against BucTon must be those elements properly chargeable to BucTon in accordance with previous instructions of the Court.
“If you find for the Carlsons and against BucTon, your verdict should be for such a sum as you believe from a preponderance of the evidence will be necessary to restore to as good a condition as immediately prior to the moving those elements of damage, if any, which are properly chargeable to BncTon under these instructions. ’ ’
This was a proper instruction and justified by the facts in the case. Lewis, et al. v. Phillips, et al., 223 Ark. 380, 266 S. W. 2d 68. The Court properly refused to give the numerous instructions offered by the appellant, since the instructions that were given covered the law in this ease. No error appearing, the judgment of the trial court is affirmed. | [
112,
108,
-48,
108,
-120,
-128,
50,
-100,
91,
-95,
116,
83,
-83,
-50,
24,
105,
-29,
125,
84,
121,
-43,
-77,
3,
98,
-46,
-77,
-5,
71,
-72,
-55,
-12,
-42,
76,
33,
-54,
-107,
-124,
64,
-59,
-36,
-50,
-128,
-118,
104,
-47,
66,
52,
107,
6,
15,
53,
-115,
-9,
37,
20,
-49,
77,
44,
77,
46,
81,
-14,
-54,
21,
127,
5,
33,
36,
-102,
1,
120,
40,
-112,
49,
16,
-72,
115,
34,
-122,
116,
67,
-33,
8,
32,
99,
34,
1,
-25,
-20,
-104,
6,
-2,
-87,
-90,
-128,
89,
11,
71,
-65,
-108,
120,
22,
4,
-2,
-1,
68,
91,
44,
-121,
-54,
-42,
-9,
-121,
36,
-107,
3,
-21,
5,
50,
117,
-49,
-26,
93,
71,
51,
-101,
-97,
-16
] |
Lee Seamster, Chief Justice.
Dr. L. B. Gunnels died a resident of Mena, Polk County, Arkansas, at the age of 88 years, on the 7th day of March, 1954. He was unmarried and without descendants. Dr. Gunnels was survived by one brother, J. B. Gunnels; two sisters, Lucy Jane Half acre and Bettie Pennington; one niece, Gertrude Gunnels Bradshaw, daughter of a deceased brother; and two grandnephews, James and Bobert Anderson, brothers, who are grandsons of a deceased sister, all constituting the heirs at law of Dr. L. B. Gunnels.
On March 12, 1954, the petition to probate six sheets of holographic writings as the last will and testament of the deceased was filed in the Probate Court of Polk County, Arkansas. Five of these sheets were in identical form, with the exceptions that each contained a different beneficiary and a different list of enumerated property. Each of the five sheets contained in form the following:
“4/2/37 Mena Ark.
this is my last will.
I give, bequeath and devise to (here appears in each the beneficiary name. In one it is “my brother J. B. Gunnels”; in another, “my Niece, Gertrude Gunnels, Calvin’s Daughter”; in another, “Esther Buth”; in another, “my sister Jane Halfacre”; in another, “my sister Bettie Pennington”) “in complete and perfect ownership all my right and property of every claim and Nature whether real Personal or mixed wherever situated as written below.” (Then in each of these five sheets of holographic writings there follows a list of real and personal property, each list setting forth specific property and not duplicating any items set out in the other lists.)
/s/ L. B. Gunnels”
The sixth sheet of holographic writing contains the following:
“4/2/37 Mena Ark.
this is my last will.
I Give, bequeath and devise to my Nephews and Neices, that I havent given any property to all the Best of my property (Then follows a list of real and personal items, still not duplicating any items set out in the other five sheets.)
Best money after any Funeral expenses is Paid
/s/ L. B. Gunnels”
Each of the six sheets of holographic writings was complete in itself; that is, no portion of one sheet was carried over to the next sheet and each was separately-headed, dated and signed by L. B. Gunnels. The six sheets were found together in an envelope marked “Last Will of L. B. Gunnels, In case of death to be opened and read by Fred C. Embry.”
These six sheets of holographic writings constituted the entire proffered will of Dr. L. B. Gunnels. They were offered for probate by Olen Pennington, nephew of the deceased, and certain other relatives and heirs of the deceased. On March 13, 1954, the will was probated in common form without notice and Olen Pennington was appointed administrator with the will annexed.
Following entry of the order appointing him administrator, Olen Pennington commenced with the administration of the estate and filed an inventory and appraisal. On April 1, 1954, he filed a petition requesting cei'tain constructions by the Probate Court of some of the provisions contained in the six sheets of the will. Notice of the filing of this petition was given, and as a result of this notice, Gertrude Bradshaw contested the probation of these six sheets as Dr. Gunnel’s will. She was later joined by the other appellants herein.
The cause was tried by the Polk Probate Court on September 1st and 2nd, 1954. This litigation involved two phases, (1) the contest of the will by the appellants, and (2) determination as to the construction of certain provisions of the will in the event it should be admitted to probate. The Probate Court rendered a”decision, contained in an opinion composed of two parts, the second of which was rendered on November 8, 1954. By virtue of that opinion, the court found that the six sheets of holographic writings, when viewed together, constituted one complete will and ordered such writings admitted to probate as the valid holographic will of Dr. L. B. Gunnels. It was the opinion of the trial court that the first five sheets naming individual legatees, be limited to the specific property listed on each sheet, and the wording on the last page, when read together with the other five pages, shows an intent by the testator to give what is left of the estate to the nephews and nieces not remembered elsewhere in the will, therefore, it wonld constitute a residuary legacy and would pass all property not listed in the first five sheets of the will.
Appellants prosecute this appeal from the judgment of the Probate Court. They contend that the trial court’s decision should be reversed for the following reasons: (1) the trial court failed to consider appellant’s most serious objections to the probate of these six sheets; (2) each one of the five sheets naming specifically an individual legatee is a complete will in itself, each one effective to pass the entire estate to its respective legatee; resulting in each one of the five being in irreconcilable conflict with each one of the other four, so that they mutually destroy one another and none can be admitted to probate; (3) the sheet naming “nephews and nieces I havent given any property to” is too indefinite, both as to who is to take and what property is intended to pass thereunder, to qualify for probate; (4) the findings by the Probate Judge, that these six sheets before the Court constitute all the writings left by the testator as his last will, are against the preponderance of the evidence; (5) in the interest of future testators and the probate law generally, this collection of holographic sheets should be denied probate as a will; and, (6) the testator intended to limit each sheet to the specific property listed, and the findings of the Probate Judge to the contrary are against the preponderance of the evidence.
The appellants contend that each of the sheets is a complete will in itself, each effective to pass the entire estate to its respective legatee; resulting in each one of the sheets being in irreconcilable conflict with the others, so that they mutually destroy one another and none can be admitted to probate. The law is well settled as to a testator’s right to make a number of testamentary documents, each dealing with a separate portion of his prop erty. In 57 Am. Jur., page 190, § 228, we find the following :
“SEPARATE INSTRUMENTS — It is elementary that a will may Be comprised of two or more separate documents. A man can have only one will, but that will may consist of several different testamentary papers of different dates. It is the aggregate or the net result of several testamentary writings left by a decedent that constitutes his will, or, in other words the expression of his testamentary wishes. Such is the case not only where one instrument is a codicil to the other, or is incorporated in the other by reference, but also where the instruments are executed and attested as wills independently of one another with the formalities prescribed by statute, provided the one does not revoke the other, expressly or by reason of inconsistency between the instruments, in respect of their provisions. ¡It is undisputed that a testator may, at his volition, make a number of testamentary documents each dealing with a separate portion of his property. A testator may with propriety execute one testamentary instrument disposing of his property at his domicil and another disposing of property located elsewhere. ’ ’
Two or more wills may be probated and effectuated in the same way that a will and one or more codicils are construed together. The task confronting a court in construing a will is, of course, to ascertain the intent of the testator, and, in doing that, isolated words or sentences should not be considered by themselves, but the language of the whole document or documents, which taken together constitute the will, should be considered, and all parts of same, if possible, given effect. This must be done from the language used as it appears from the consideration of the entire instrument, and when such intention is ascertained it must prevail, if not contrary to some rule of law, the court placing itself as near as may be in the position of the testator when making the will. See Clemenson v. Rebsamen, 205 Ark. 123, 168 S. W. 2d 195; Jackson v. Robinson, 195 Ark. 431, 112 S. W. 2d 417.
When all of the competent and creditable testimony in the record is carefully considered «together, a preponderance of the evidence sustains the six sheets of writing as the whole, valid and last unrevoked will of Dr. Gunnels. Counsel for appellants argue that there “may” have been other sheets, but there is no evidence of any other, and there is evidence that these six sheets compose the whole will. All six sheets are dated the same day; each follows a “will form” which Dr. Gunnels possessed; each page or sheet was signed by Dr. Gunnels; and, all six sheets were found pinned together. When all of the sheets are read together, they show an intent of the testator to leave separate portions of his estate to specific legatees. Therefore, after giving careful consideration to the first five points raised by the appellant for reversal, it is our opinion that the trial court’s decision should be affirmed, as to that portion of the judgment that admitted the six holographic sheets to probate as the last will of Dr. Gunnels.
The sixth point raised by the appellants, “That the testator intended to limit each sheet to the specific property listed,” calls for a more meticulous examination of the will from its four corners and a view of all of its terms.
The courts have, in a long list of cases, given recognition to certain general rules to be observed in the construing of a will. Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, is one of the leading cases which announced the general rule, that a will should be, if possible, construed so as to avoid intestacy. This case stated: “A testator is presumed to intend to dispose of his entire estate, and it is to be borne in mind in the construction of wills that they are to be so interpreted as to avoid partial intestacy, unless the language compels a different construction.” In this case, considerable weight was given to the introductory portion of the will, in which the testator said, among other things: “As to my worldly estate and all property, real, personal or mixed, of which I shall die seized and possessed or to which I shall be entitled at the time of my decease, I devise . . . ”
The G-alloway case was cited in Barlow v. Cain, 146 Ark. 160, 225 S. W. 228. The Barlow case reveals that Joseph Cain made a will, in which the following language appeared: “And then after paying all my lawful debts, I give and bequeath and dispose of the residue of my estate real and personal, as follows towit:” Here he gives specific real estate to his widow, son and daughter, as well as one dollar to each of the heirs of his two deceased daughters. In the 3rd clause of his will, he said: “Also, it is my will that my son, T. F. Cain, take full control of all my notes and accounts that may be due or become due after my decease, and that he, my son, T. F. Cain, is to settle all of my affairs and pay all of my indebtedness against my estate. ’ ’ In construing this will, the court said: “The language of the paragraph being insufficient to bequeath the personal estate, the testator died intestate as to the residue of the personal property, after the payment of all debts and small bequests provided in the will . . . ”
In the case of Smith v. Smith, 219 Ark. 304, 241 S. W. 2d 113, the following paragraph appeared in Dollie Smith’s will: “I give my home in Blytheville . . . to my daughter, Lorene (Smith) Smith to be used by her as a home as long as she wishes, and in case she should not use it as such and wish to sell it, then the proceeds to be divided between my son, Floyd Smith, and my daughter, Lorene (Smith) Smith in equal shares.” In construing the above paragraph, the court said: “The appellee relies also upon the presumption against partial iutestacy to support her contention that she owns the fee. But this is merely a presumption, and it certainly does not operate to convert a life estate into a fee in every case in which the life estate might have been more accurately described. Here the presumption is materially weakened by the existence of other instances of partial intestacy in the same will. In devising her other two parcels of land Dollie Smith made no provision for their devolution in the event that both her children died without issue, and hence the testatrix died partly intestate as to these tracts. In this situation we are more readily inclined to accept the existence of partial intestacy as to the land now in controversy. ’ ’
In Williams v. Norton, 126 Ark. 503, 191 S. W. 34, we have a case where A. B. Williams died testate. He owned some 4,200 acres of land and certain personal property. He was survived by his widow, four sons and two daughters. Mr. Williams left a homestead and certain lands to the widow for life and disposed of his personal property. He appointed two of his sons executors and empowered them to collect his accounts and settle his debts, to rent or sell the rest of his real estate as in their opinion seemed best. The proceeds from the sale of real estate were to be paid % to the widow and % to his daughter, Kate Old, for the use of herself and children so long as she remained a widow.
The following paragraph appeared in his will: “If I have made any omissions in the directions about my bequests herein, my said executors are fully empowered to supply them. My son, E. B. Williams and I own some land jointly as tenants in common, which I wish disposed of as I have directed about my lands held in my own right. Any residuum not provided for herein I wish to bo given to my daughter, Kate Old. ’ ’ In construing the will, the court stated, in part: “In the absence of any language in the will which either expressly or by necessary implication carries the idea that he intended to devise the fee simple title to anyone, the presumption against partial intestacy so far as the lands are concerned cannot be indulged.
“In the old English case of Denn v. Gaskin, 2 Cowp. 657 (1777), Lord Mansfield declared, that ‘though the intention is ever so apparent, the heir at law must of course inherit unless the estate is given to somebody else.’ . . .
“ Schauber v. Jackson, 2 Wend., N. Y., 13, is one of the leading cases in this country. . . . The court for the correction of errors there held, ‘if there is not sufficient in a will to take the case out of the rule that all of the estate which is not legally and sufficiently devised to some other person must go to the heir, the heir will take whatever may have been the intention of the testator. ’
“Following this decision, the Supreme Courts of Virginia and Georgia, also in cases where there is an exhaustive review of the authorities, held that ‘an heir can be disinherited only by express devise or necessary implication, so strong that a contrary intention cannot be supposed; that the heir cannot be disinherited unless the estate is given to somebody else.’ Boiseau v. Aldridges, 5 Leigh’s Rep. 222, 27 Am. Dec. 590; Wright v. Hicks, 12 Ga. 155, 56 Am. Dec. 451.
“In the last above case it was held (quoting syllabus) : ‘Intent to disinherit heir is essential to raise an estate by implication, the presumption being, in the absence of plain words in the will to the contrary, that the testator intended that his property should go in the legal channel of descent.’ See, also, Doe ex dem. Clendenning v. Lanius, 3 Ind. 441, 56 Am. Dec. 518.
“Applying the doctrine of the above cases to the will under review, there is certainly no language in it that either expressly or by necessary implication overcomes the presumption that A. B. Williams intended that his real estate, subject to the uses to which he had subjected it under the provisions of his will, should go in the legal channel of descent. To hold otherwise would be to make a will for the testator, and one too that would create an unjust discrimination in favor of the heirs of Mrs. E. C. Old as against the other heirs of the children of A. B. Williams.”
In order to discover the dominant testamentary scheme or overall intention of the testator, we must examine the manner in which Dr. Gunnels prepared his will, together with the provisions as contained in the six sheets of the will. The apparent meaning of particular words, phrases or provisions should be harmonized, if possible, to such scheme, plan or dominant purpose that appears to be the intention of the testator.
The instant case reveals that Dr. Gunnels had evolved a plan whereby certain specific properties were to be left to specified legatees. The testator, in all probability, had before him a list of the properties to be disposed of, at the time he made his will, or at least he had said properties well in mind. He refers to the property which he bequeathed and devised as “my property.’;’ We denote that no reference is made to his estate; to property that he might own at his death (except money); to property he might die seized and possessed; or, any of the usual terms that would indicate that he meant tq dispose of after-acquired property in the will.
Bach of the first five sheets contain the language “I give, bequeath and devise (to a named beneficiary) in complete and perfect ownership all my right and prop: erty of every claim and nature whether real Personal or mixed wherever situated as written below, ” then he describes certain specific properties. In the sixth sheet, he devised to his nephews and nieces ‘ ‘ all the rest of my property,” then without punctuation or further stating as written below, he described six separate tracts of real estate, $2,000 in government bonds, bank stock, a mule, two cattles and “rest money after funeral expenses :is paid.” The language used by the testator in disposing of his money in this manner indicates that he .knew the proper language to use in disposing of after-acquired property. The failure to use such language indicates that he intended to devise only the property he specifically set out in his will.
In view of the unusual manner in which Dr. Gunnels prepared his will and after examining the provisions of the will, we are unable to say that he intended to leave the nephews and nieces his after-acquired property, since he limited them to specific property in his will. The testator disposed of “all my right and property” in the first five sheets of his will; the sixth sheet disposes of “all the rest of my property.” In each sheet of the will he specifically sets out with particularity, each item of property that he wishes each beneficiary to have at the time of his death. We find that the testator died intestate as to all of the property that he owned at the time of his death, with the exception of that property which was specifically described in his will.
In regard to partial intestacy, the Arle. Stats., Section 60-411, provides as follows :
“PARTIAL INTESTACY — If part but not all of the estate of a decedent is validly disposed of by will, the part not disposed of by will shall be distributed as provided by law with respect to the estate of intestates. ’ ’ See also Wyatt v. Henry, 121 Ark. 479, 181 S. W. 297.
That portion of the judgment of the Probate Court, construing the will to give the nephews and nieces all the balance of the property belonging to the estate, is reversed and remanded, with instructions to proceed with the administration of the estate according to law and not inconsistent with this opinion. | [
49,
108,
-12,
127,
26,
115,
74,
-86,
82,
64,
39,
83,
-19,
-37,
113,
125,
51,
79,
-48,
107,
-89,
-89,
31,
-95,
18,
-77,
-5,
-57,
32,
-7,
-84,
-41,
92,
104,
10,
68,
-59,
74,
-61,
92,
-60,
72,
73,
-32,
89,
-14,
48,
-75,
92,
-113,
85,
-98,
-13,
-85,
127,
47,
40,
100,
91,
-81,
88,
-80,
-54,
14,
61,
19,
-112,
39,
-104,
-123,
88,
14,
-108,
52,
-128,
-4,
51,
-76,
-122,
84,
35,
-67,
8,
98,
-25,
101,
-127,
-49,
-72,
-118,
79,
-70,
-115,
-89,
-97,
65,
-14,
33,
54,
29,
124,
-48,
11,
-42,
38,
-42,
28,
32,
-121,
-114,
-124,
-107,
-88,
105,
-100,
27,
-5,
13,
112,
113,
-119,
-126,
85,
71,
57,
-109,
-54,
-16
] |
Butler, J.
J. M. Jones died testate in the year 1921, devising his real property to his wife Dora Jones, for life and the remainder in fee to four children, J. W., Luke, Bessie and Dolly Jones, being children born to him and his wife, Dora. Children by a former marriage were mentioned in the will, and Will D. Vance was named as executor. The executor took charge of the property under the will and proceeded to its administration as therein provided.
Seven acres of the real estate are located in the city of Russellville, and, this land not producing enough revenue to pay the general and local taxes, Mrs. Jones and the executor concluded that it would be best to sell the same. In 1928 the appellee, Ed Harkey, agreed to purchase this property for $4,'250, provided the necessary orders were made by the court to authorize the sale as all of the children were minors. The appellee entered into a written contract with the widow and executor to that effect, and pursuant to that agreement Will D. Vance, as executor, and Mrs. Jones, for herself and as the natural guardian and next friend of the minor children, filed a petition in the chancery court for partition, if practical, and, if not, that the land be sold. It was alleged in the petition that the appellee had offered to purchase the property for the sum aforesaid.
It subsequently developed that the child, Luke Jones, had died while an infant and before the death of his father, and that after the execution of the will another child had been born who was named Catherine. The attorney who prepared and filed the petition for partition was not advised of the death of Luke Jones or the birth of Catherine Jones, but assumed that all the beneficiaries and children of J. M. and Dora Jones were those named in the will, naming them in the petition. On-hearing of the petition the court granted same, and directed that the land be sold at private sale to the ap-pellee by a commissioner who was appointed for that purpose. The sale was duly made and report thereof with the commissioner’s deed duly acknowledged to the court, which sale and deed were by the court approved and confirmed, by which the interest of the four children named in the will was conveyed to the appellee, Harkey. Mrs. Jones also conveyed to the appellee by proper deed her interest in the land in question.
The present litigation arose in the following manner: Early in the year 1927, Harkey entered into an agreement with the board of directors of School District No. 14 in Russellville for the sale by him, and the purchase by the said board, of the tract of land for the sum of $6,500. Before this sale was consummated, John W. White and a number of others, presumably citizens and taxpayers of said district, brought suit in the chancery court to enjoin the school board from purchasing the land, and prayed that the minor children named in the partition suit aforesaid be made parties, and that the sale of the land made under the partition decree aforesaid be set aside.
On October 22, 1927, the appellee filed his separate general and special demurrer and answer to this complaint, in which answer the allegations of the complaint were specifically denied. After the filing of this answer, on motion of Harkey, the child, Catherine Jones, was made a party defendant, and a special guardian was appointed to represent her interests. Thereupon Harkey filed an amendment to his answer and cross-complaint wherein he alleged that the child, Catherine Jones, had been inadvertently omitted from the proceedings up to that time, and that she should receive her distributive share of the amount paid by him for the land, and that his title should be quieted and confirmed against all persons including the said Catherine Jones.
An answer was filed for Catherine Jones by her special guardian, and on the 27th day of February, 1928, Mrs. Dora Jones and her children aforesaid filed their interventions, wherein they sought to have the sale made under the partition decree set aside for the reason that the sum contracted to be paid by Harkey was $5,200 instead of $4,250. To this intervention answer was made by Harkey. That case was heard and determined and final decree rendered June 12, 1929, a day of the regular February term. No appeal was taken from that decree, •but on December 28, 1929, Harkey filed an action in tbe probate court against tbe estate of J. M. Jones for $984 which be bad paid into tbe registry of tbe chancery court pursuant to said decree. On motion of Will D. Yance, tbe executor, this claim was dismissed by tbe probate court on October 27, 1930. From this judgment Harkey appealed to tbe circuit court, but tbe record does not disclose what further action, if any, was taken by him in that regard.
Subsequent to all of these proceedings, Harkey filed this action, naming as defendants, Yance as administrator (executor) Dora Jones, tbe widow of J. M. Jones, J. W. Jones, Bessie Jones and Dolly Jones and Catherine Jones, minors, these being tbe four living children of J. M. Jones, deceased, and tbe owners under bis will and by inheritance of tbe parcel of land sold to Harkey. In bis complaint Harkey alleged tbe facts recited above, and that tbe $984 paid by him into tbe registry of tbe court was then in tbe bands of tbe clerk, Ed C. Bradley. The complaint concluded with the prayer that the original contract entered into by Dora Jones, for herself and minor children, and Will D. Yance, executor, be reformed so as to omit tbe name of Luke Jones, deceased, and insert tbe name of Catherine Jones, and that tbe original decree in tbe partition suit be reformed so as to insert tbe name of Catherine Jones where tbe name of Luke Jones appeared; that tbe deed from tbe commissioner made pursuant to tbe decree of partition be reformed in tbe same particular as tbe decree, and that he have judgment against tbe defendants in the sum of $984, and that tbe clei’k of tbe court be ordered to pay said money over to him.
To this complaint tbe defendants interposed a special and general demurrer and answer admitting tbe allegations of the complaint and setting up as an affirmative defense that all tbe matters and things pleaded bad been set up and determined in the suit instituted by citizens to enjoin tbe sale of tbe land in question by Harkey to the school board, in which suit all tbe parties bad inter- verted and all matters bad been adjudicated by a final decree, and tbe defense of res judicata was specially interposed.
On tbe trial of tbe case tbe court rendered a decree against Vance, as executor, in tbe sum of $984 with interest from January 26,1929, and, further, that tbe title of the defendants to the land be divested, and title be confirmed and quieted in tbe plaintiff (appellee) from which is this appeal.
It is insisted by tbe appellee that the trial court was familiar with tbe matters in controversy and, under all the facts in tbe case, rendered a decree in consonance with good conscience, which decree was right. It is not difficult to perceive that tbe chancellor was endeavoring to render such a decree, and it is one which we would feel constrained to affirm, were it not against well-settled principles of law.
In tbe decree of June- 12, 1929, after reciting- tbe filing of the several interventions and tbe answers of Harkey thereto, tbe court found as a matter of fact that, subsequent to tbe execution of tbe will under which Mrs. Dora Jones and her children held title, Catherine Jones was born, and as to her J. M. Jones died intestate. Tbe court found that tbe decree for partition and sale thereunder bad been duly made and entered and tbe land sold to Harkey for tbe sum of $4,250; that tbe sale was duly reported and in all things confirmed and approved, and “the court, being otherwise well and sufficiently advised, doth find that tbe purchase price paid for said land at said sale was the fair and reasonable value thereof, and the court now finds after hearing this cause, and upon proof, that the said amount of $4,250 paid for said land is the fair value thereof, and that, as against the said Dora Jones, J. W. Jones, Bessie Jones and Dolly Jones, and to the extent of their interest, the said Ed Harkey is entitled to have his title in said above-described property forever quieted and confirmed.”
“The court further finds from the evidence in this cause that the minor defendant, Catherine Jones, was not made a party to said proceedings, and that she has her title and interest in said lands, the same being an undivided one-fonrth interest subject to the life estate in her said mother, Dora Jones, and that after investigation and hearing proof that it would be to the best interest of the said minor, Catherine Jones, to divest the title to her interest in said lands out of her and vest the same in the said defendant, Ed Harkey, upon the payment into the registry of this court by the said defendant, Ed Harkey, of her proportionate part and share of the value of the said land in the sum of $984, and that the said Ed Harkey, having paid the said sum of $984 in the registry of this court, which is the amount due said child for its interest in said land after deducting its part of the taxes paid by Ed Harkey, for the use and benefit of the said minor child, Catherine Jones, which amount is hereby ordered delivered to the statutory guardian of Catherine Jones after payment of attorney ad litem, M. H. Dean, and his attorney.
“It is therefore by the court considered, ordered, adjudged and decreed that all the right, title, interest and equity of the said Catherine Jones in and to the said above-described lands situated in Pope County, Arkansas, * * # be, and the same is, hereby divested out of her and vested in the said defendant to the intervention, Ed Harkey, and that the intervention and cross-complaint of-the said Dora Jones, J. W. Jones, Bessie Jones and Dolly J ones, seeking to set aside the decide of the chancery court and ordering a sale of the lands hereinabove referred to, and to revest title in them, be and the same is hereby dismissed for want of equity, and the title of the said Ed Harkey in and to the above-described lands against the said Dora Jones, J. W. Jones, Bessie Jones, Dolly Jones and Catherine Jones be, and the same is, hereby forever vested, quieted and confirmed.”
We. take judicial knowledge of the fact that the term of the court at which the decree of July 12, 1929, was made and entered has lapsed, and the decree become final. The complaint in the present case shows that all the issues involved were, or could have been, determined in the former suit, and all the parties that were necessary to that determination were then before the court. In that suit, Catherine Jones was made a party, and she and her brother and two sisters were the owners of the parcel of land which had been sold to Harkey and the decree quieted and confirmed title in Harkey, he having paid into the registry of the court the amount adjudged to be due the said Catherine Jones. It is argued that, since Yance, the executor, was made a party defendant in the instant case and was not a party to the proceeding which terminated in the decree of June 12, 1929, therefore that decree is not a bar to the instant suit. It is not shown, however, that the estate of J. M. Jones had any interest in the subject-matter of the litigation, and the sole duty of the executor (the specific bequest being only nominal) was to make a partition and division of the estate among the devisees and to pay the funeral expenses and debts of the deceased. There was no showing that any of these duties remained unperformed or that any part of the money arising out of the sale of the parcel of land involved was needed for the discharge of the obligations of the testator. Therefore, all of the persons necessary for the adjudication of the questions before the court were parties to the proceeding and all the matters in issue in the instant case were either directly adjudicated or necessarily involved in the determination of the action ending in the decree of July 12, 1929. That decree, under .familiar principles, operated as a bar to any subsequent suit involving issues which were then, or might have been, determined. Vittitow v. Bennett, 112 Ark. 277, 165 S. W. 625; Black v. Lenderman, 156 Ark. 476, 246 S. W. 876; Shaw v. Polk, 152 Ark. 18, 237 S. W. 703; Toll v. Toll, 156 Ark. 139, 245 S. W. 299; Robertson v. Evans, 180 Ark. 420, 21 S. W. (2d) 610.
The appellee earnestly argues that, since he was not a party to the ex parte petition for partition in which a decree was rendered and by which he became the purchaser of the land, and that in that petition it was er roneously alleged that Luke Jones was one of tke minor owners of tke land, wken in fact ke was dead, tke court kad no jurisdiction of Luke Jones, and tkat, as kis administrator was not a party to any subsequent proceeding, tke principles announced would not apply. Tke answer to this is tkat it is apparent tkat tke child, Luke Jones, died in infancy and therefore, kad no estate or interest in tke estate of kis father, and further tkat tke decree of partition is not tke one sought to ke modified in tke instant case.
Appellee also insists tkat tke proceedings and decree rendered in tke court below were correct under tke rule that a judgment rendered at a former term, of court may be corrected so as to make it speak tke truth, and cites a number of cases to support that contention. This, however, is not a case coming within that rule, for here there was no judgment of tke court which was omitted by misprision of tke clerk or one entered which in fact was not tke decision of tke court; it is an independent action to recover a sum of money which was ordered paid by the court and accordingly paid under tkat order, from which order, as we have seen, no appeal was taken.
We can see how it may be tkat the appellee has been required to pay more for tke tract of land than ke originally bargained, which was all tke land was worth, but no authority has been cited, nor have we been able to discover any, that would warrant tke affirmance of this case.
The judgment in tke instant case therefore must be reversed, and tke cause remanded with directions to dismiss tke appellee’s complaint for want of equity and to pay tke sum in tke registry of tke court to tke legal representative of tke minor child, Catherine Jones. It is so ordered. | [
-15,
69,
-4,
72,
58,
0,
72,
-8,
83,
-126,
53,
-37,
-23,
70,
17,
45,
34,
93,
-47,
126,
-96,
-93,
86,
32,
-111,
-13,
-23,
-33,
50,
69,
-76,
-33,
92,
44,
74,
29,
-58,
-62,
-19,
94,
76,
-31,
-117,
100,
-35,
80,
52,
113,
20,
79,
85,
-81,
-73,
46,
61,
97,
126,
44,
-37,
40,
-40,
-24,
-113,
-123,
-33,
22,
-112,
-29,
-38,
-127,
-54,
90,
-112,
53,
-128,
-24,
81,
-90,
86,
-10,
13,
9,
8,
102,
118,
58,
-59,
-17,
-16,
-104,
15,
-70,
-119,
-89,
-29,
121,
2,
96,
-66,
-106,
121,
-48,
31,
116,
-19,
-124,
28,
104,
-120,
-113,
-42,
-95,
-120,
56,
-100,
27,
-14,
79,
32,
113,
-55,
98,
93,
39,
52,
-101,
-113,
-37
] |
McHaney, J.
Appellee secured a judgment in the Jefferson Circuit Court against C. A. Webkes and wife in the sum of $5,000, for injuries sustained by her in an automobile accident while a guest in their car. After execution was returned nulla bona, suit was brought against the Southern Surety Company, because of "a policy of liability insurance issued by it to the Webkes, and against appellant, the Home Indemnity Company of New York, hereinafter referred to as appellant (the other appellants being garnishees holding money belonging to it), as surety on the bond of the Southern Surety Company to enable it to do business in this State. The complaint in this action, after alleging the judgment against the Webkes, the issuance of execution thereon, its return unsatisfied, and that appellee was entitled to judgment against the Southern Surety Company in said sum, further alleged as to appellant the following: “That, as a prerequisite to its right to do business in the State of Arkansas, the defendant, Southern Surety Company of New York, gave a bond to the State of Arkansas in the sum of $50,000, conditioned for the prompt payment of all claims and obligations arising or accruing in this State to any person during the term of said bond, by virtue of any policy or contract issued by said principal, Southern Surety Company of New York, such as the claim or obligation now sued on, which bond was in full force and effect on and at all times after the 29th day of December, 1930, the time of plaintiff’s injuries, and was signed by the defendant, the Home Indemnity Company of New York, as surety for the said Southern Surety Company of New York. A certified copy of said bond is attached to this complaint, and made a part thereof. ’ ’
The bond executed by appellant and exhibited follows : ‘ ‘ Know all men by these presents: That we, Southern Surety Company of New York, as principal, and the Home Indemnity Company, a corporation organized under the laws of the State of New York, as surety, are held and firmly bound unto the State of Arkansas in the sum of fifty thousand and 00/100 ($50,000) dollars, lawful money of the United States, for the payment of which well and truly to be made, we hereby bind ourselves, our successors and assigns, jointly, severally and firmly by these presents.
“The conditions of the above obligation are such that:
“Whereas: The said principal has filed its charter and statement and in other respects conformed to the requirements of the statutes for the transaction of a guaranty and surety insurance business in Arkansas; and,
“Whereas: The said company proposes to enter this State (or continue in this State) for the purpose of transacting a guaranty and surety insurance business.
“Now, therefore, if the said principal shall promptly pay, when due, all claims and obligations arising or accruing in this State by virtue of any bond or contract made by said principal; and all amounts due the State of Arkansas, by virtue of any statute, and in all respects comply with the laws of the said State, then this obligation shall become void, otherwise to remain in full force •and effect.
“Witness our hands and seals this 17th day of December, 1930.”
The prayer was for judgment and interest. Neither the Southern Surety Company nor appellant answered, although duly served, and judgment was taken by default against them after an agreement to settle had proved abortive.
This is an appeal from a default judgment, and the only question for our decision is, does appellee’s complaint state a cause of action in her favor against appellant? As said by this court in Thompson v. Hickman, 164 Ark. 472, 262 S. W. 20: “The rendition of a judgment by default upon a complaint which fails to state facts sufficient to constitute a cause of action is an error for which the judgment should be reversed on appeal.” See also Wilson v. Overturff, 157 Ark. 389, 248 S. W. 898. It is conceded that the complaint without the exhibit states a cause of action, but it is insisted that the exhibit is a part of the complaint, and, when so considered, it contradicts the allegation above quoted and shows that there is no liability as to appellant on this bond, when read in connection with act 493, Acts 1921, paragraphs 5 and 7 of § 1 and § 6, for the reason that it covers only the guaranty and surety lines written by the principal and not its liability lines of insurance, for which another bond or certificate of deposit was given. We do not copy these provisions of the statute, for, in the view we take of the matter, they become unimportant.
By § 138 of the Civil Code it was provided that, “If the action * * * is founded on a note, bond, * * * the original, or a copy thereof, must be filed as a part of the pleading.” Under this statute this court several times held that, if the instrument sued on was the basis of the action, it should be looked to in determining the sufficiency of the complaint. See Sorrels v. McHenry, 38 Ark. 134; Euper v. State, 85 Ark. 223, 107 S. W. 179; Security Ins. Co. v. Jaggers, 120 Ark. 472, 179 S. W. 1008. But the above section was amended by the act of March 27, 1871, p. 231, and is carried verbatim, into Crawford & Moses’ Digest as § 1222 as follows: “In an action or defense founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified sum which he claims.” By inadvertence, the amendment of 1871 was omitted from both Sandel & Hill’s Digest (§ 5752) and Kirby’s Digest (% 6128), and the opinion in Security Ins. Co. v. Jaggers, supra, erroneously cites § 6128 of Kirby’s Digest as sustaining this statement: “The action is founded on the bond of appellees, which was filed as exhibit to the complaint and may be considered upon demurrer to the pleadings.”
The cases holding that exhibits to the complaint in suits at law may be considered on demurrer or on appeals after'default are now without statutory foundation, and we think the recent case of American Ins. Co. of Newark, N. J., v. Dutton, 183 Ark. 495, 37 S. W. (2d) 875, definitely settles the question. We there said: “Counsel for appellant, in its motion for a rehearing, claims that the court did not take into consideration a clause of the insurance policy which is set out in the brief on the motion on rehearing. We do not deem it necessary to set out this provision of the policy, for, under our settled rule of practice, we cannot consider it. It is true that the policy was made an exhibit to the complaint, hut this court has uniformly held that in actions at law exhibits to the complaint can only be used as explanatory of the allegations of the complaint and not for the purpose of contradicting them.”
We are therefore of the opinion that the complaint states a cause of action sufficient to support a judgment on appeal after default.
Affirmed. | [
-44,
109,
-72,
-3,
-120,
96,
56,
-102,
-13,
-128,
36,
-45,
-3,
102,
21,
99,
-25,
125,
-27,
106,
-75,
-73,
55,
98,
-45,
-109,
-7,
-59,
-78,
75,
-32,
-33,
77,
32,
-54,
85,
-62,
-54,
-43,
28,
-50,
-120,
-118,
108,
-37,
18,
48,
-1,
80,
71,
97,
-113,
-29,
34,
23,
110,
-19,
46,
75,
-91,
-64,
113,
-117,
7,
127,
5,
-111,
4,
-104,
33,
66,
30,
-104,
49,
1,
-24,
114,
-122,
-58,
84,
41,
-103,
12,
38,
99,
34,
5,
-27,
-100,
-100,
7,
-12,
-115,
-89,
-94,
121,
11,
15,
-106,
-99,
86,
65,
-121,
116,
-2,
85,
28,
44,
3,
-49,
-46,
-127,
-83,
54,
20,
3,
-25,
46,
52,
81,
-51,
-80,
93,
71,
26,
-101,
14,
-101
] |
Kirby, J.,
(after stating the facts). The court did not err in refusing to make the nunc pro tunc, order requested. Upon a hearing it was disclosed that appellant’s attorneys, when the demurrer was sustained, did not ask leave to amend, and the court noted on its docket that appellant elected to stand on his complaint and declined to amend, and dismissed it. The deputy clerk stated that the court read the docket entry, and none of appellant’s attorneys objected to it, and that the motion to amend was not filed until the next day, September 1, which was more than 10 days after the expiration of the time allowed by law in which to file the contest.
This court has held that, in contested election cases for nomination to any particular office, it is necessary to allege the number of candidates for the particular office and the vote received hv each, in order to disclose whether the contestant received a plurality of all the. legal votes cast, upon the proper deduction made for illegal votes. In Hill v. Williams, 165 Ark. 421, 264 S. W. 964, the court, in holding a demurrer to the complaint properly sustained, said: ‘ ‘ There should have been an allegation in the complaint showing the number of votes received by each candidate, so that it would appear,- after deducting the alleged fraudulent votes from the number accredited to appellee, that appellant would then have more votes than either one of his opponents.
“The demurrer to the complaint was properly sustained, as the general allegations therein of irregularities and fraud were mere conclusions, and the specific allegation failed to show that appellant received a plurality of all the legal votes cast for sheriff and collector at said election. ’ ’
The complaint could not have been amended when the motion to remedy the defect was made on the 1st of September, since the amendment was not offered within 10 days after the certification of the nomination complained of, the provision of the statute requiring the contest to be filed within 10 days thereafter being mandatory and jurisdictional, and the failure to institute the contest properly within this time was fatal to the contestant. Hill v. Williams, supra; Gower v. Johnson, 173 Ark. 120, 292 S. W. 382; Bland v. Benton, 171 Ark. 805, 286 S. W. 976; and Storey v. Looney, 165 Ark. 455, 265 S. W. 51.
It is only amendments, in "such contested election cases, to make the complaint and allegations thereof more definite and certain that may be allowed after the 10-day period for bringing the contest has expired, and such amendments alleging new and additional grounds of contest are not permissible. Bland v. Benton, supra; Wilson v. Cardwell, ante p. 261.
We find no prejudicial error in the record, and t,b« judgment must be affirmed. It is so ordered. | [
20,
-20,
-19,
93,
-118,
1,
49,
-84,
81,
-111,
39,
83,
-17,
-46,
-108,
113,
-79,
111,
85,
91,
-36,
-93,
39,
64,
98,
-13,
73,
23,
53,
104,
-2,
-3,
76,
49,
-62,
-43,
71,
74,
-113,
-36,
-90,
2,
9,
65,
-15,
-117,
104,
80,
24,
15,
113,
-74,
-14,
-84,
24,
67,
75,
40,
-3,
49,
-61,
-71,
-97,
5,
124,
6,
-79,
-121,
26,
-128,
106,
46,
12,
28,
0,
-24,
115,
-90,
-126,
-42,
47,
-39,
40,
102,
97,
32,
-91,
-17,
-68,
-96,
127,
62,
31,
103,
-112,
105,
42,
44,
-74,
-107,
55,
-108,
46,
126,
48,
-123,
21,
110,
6,
-50,
-44,
-73,
30,
96,
-116,
3,
-17,
-80,
-112,
113,
-52,
-26,
92,
71,
48,
91,
-51,
-48
] |
Mehaeey, J.,
W. L. Trites is a farmer living at Gillette, Arkansas County. He owned real estate and personal property, most of which was incumbered. On December 28, 1926, Trites and his wife executed a deed to some property in the town of Gillette to their children, whose ages were 5, 7 and 9 years. On December 6, 1927, W. L. Trites filed his petition in bankruptcy. The appellant, H. E. Crill, was appointed receiver by the referee in bankruptcy, and was directed to- bring suit in the Arkansas Chancery Court to cancel said deed, as being made without consideration, and for the purpose on the part of Trites to hinder and delay his creditors in the collection of the debt. Suit was filed in the chancery court of Arkansas County by the appellant, and the complaint alleged that Trites and his wife had executed said deed on December 28, 1926, and that said children were 9, 7 and 5 years of age, respectively; that said deed was made without consideration and for the purpose, on the part of W. L. Trites, to place said property beyond the reach of his creditors, and thus hinder and delay them in the collection of their debts; that said W. L. Trites was at the time of the execution of the deed insolvent, and that the deed was executed to defraud his creditors, and he asked for a cancellation of the deed. Answer was filed •by appellees, in which they denied that the deed was executed for the purpose of hindering, defeating and defrauding the creditors of W. L. Trites; denied that W. L. Trites was insolvent at the time of the execution of said deed, and alleged that said deed was executed nearly a year before he filed his petition in bankruptcy. He further alleged that he had severe financial reverses in 1927, and that the association failed to make settlement in full for his rice, and that these reverses made it necessary for him to file his petition in bankruptcy. An amendment to the answer was afterwards-filed, in which was set forth in detail the value of the property Trites owned at the time of the execution of the deed, which was thought to be worth $15,000; that he owed his creditors at the time of the execution of the deed $8,000, and that he retained sufficient property to pay his creditors outside the property conveyed to his children; that the reverses of 1927 made it impossible for him to meet his obligations, and that this led to his filing his petition in bankruptcy. He owed, at the time he executed the deed, W. J. DeVore approximately $4,000. DeVore testified in substance that he had tried to collect from Trites and had endeavored to get Trites to give him security, which Trites refused to do; that the suit by DeVore against Trites was brought before the deed was executed to the children, but judgment was obtained after the date of the deed. He testified that at the time the deed was executed Trites was involved financially, and that these conditions finally led to his insolvency and bankruptcy. The debt of $4,000 to DeVore was secured by chattel mortgage, but none of the property was ever turned over to DeVore on the debt, and no part of the $4,000 had been paid. The debt to DeVore was originally $5,500, but had been reduced by payment to $4,000. He testified that Trites was insolvent, and he based his statement upon the fact that everything Trites had was mortgaged. He stated that Trites delayed the suit brought by DeVore against him as long as possible, and threatened bankruptcy if the suit were pushed. The petition in bankruptcy showed the total claims against Trites to be approximately $14,000.* That he had never received anything on his .judgment.
Tbe appellant, H. E. Crill, testified about bis appointment as a receiver and bringing tbe suit under directions of tbe referee in bankruptcy; tbat tbe secured claims in tbe petition for bankruptcy were more than $13,000, and tbat tbe value of tbe securities was placed at $9,875; tbat tbe total amount of bis indebtedness shown by bis petition in bankruptcy was $14,394.04. Tbat bis total assets listed was $5,357.25. Witness stated tbat all be bad ever received as receiver for tbe bankrupt was $265.54; tbat no personal property came into bis possession ; tbat Trites, in bis petition for bankruptcy, claimed bis exemptions of $500, and tbat tbis was allowed without contest.
Tbe undisputed evidence shows tbat, in tbe spring of 1927, Trites bad 8 bead of mules and a horse, all good stock, worth about $1,000, and tbat be bad all tbe farming implements and equipment tbat be needed as a rice farmer, and was well equipped to run a rice farm. Tbe undisputed evidence also showed tbat tbe flood of 1927 destroyed bis oat crop, tbat bis stock died, and tbat values went down, and tbat these things caused him to become insolvent and made it necessary to file bis petition in bankruptcy. Trites filed a list of tbe property which he owned, together with its value, tbe aggregate value being $15,764.45. Tbis property be owned at tbe time be executed tbe deed. There is no controversy about bis owning tbis property or about its value. 160 acres of land was listed as of the value of $6,400. Two or three other witnesses, in addition to Trites, testified tbat it was worth $6,400. He also introduced a list showing bis indebtedness at tbe time of tbe execution of the deed, which amounted to $5,955. The judgment of DeVore, added to tbis, would make tbe aggregate $9,955, showing tbat bis assets at tbe time tbe deed was made exceeded bis liabilities by $5,809. Tbe evidence of Trites was corroborated by disinterested witnesses who testified as to tbe property owned by him and its value, and tbat be was solvent. The appellant’s witnesses, DeVore and tbe receiver, testified tbat be was insolvent at the time tbe deed was executed. The evidence shows there was no concealment about the deed; it was placed on record shortly after it was executed, and it was executed nearly a year before the petition was filed in bankruptcy.
If the deed by Trites to his children was made with the intention to hinder, delay or defraud creditors or other persons of their lawful actions, damages, forfeitures, debts or demands, as against creditors and purchasers, such deed would he void. 'Crawford & Moses’ Digest, 4874-, 4878.
The questions here are, was Trites insolvent at the time the deed was made ? And was it made with a fraudulent intent? A voluntary transfer of property to near relatives is presumptively fraudulent as to existing creditors, and, if the debtor is insolvent at the time, it necessarily hinders, delays and defrauds his existing creditors, and such conveyances to near relatives by a debtor who at the time is embarrassed, are looked upon with suspicion and scrutinized with care. Fluke v. Sharum, 118 Ark. 229, 176 S. W. 684; Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913; Mente & Co., Inc., v. Westbrook, 181 Ark. 96, 24 S. W. (2d) 976.
The law as to fraudulent conveyances is well settled by the decisions- of this court. It would serve no purpose to review all the decisions here. All of our decisions are to the effect that courts should carefully scrutinize all cases of alleged fraud against creditors where transfers have been made to members of the debtor’s family. A gift of property to one’s child by one indebted at the time is presumptively fraudulent as to existing creditors, and, when it is shown that a gift of property was made by the father to child, that the father was largely indebted at the time, the burden of proof is on the father to show that his intentions were innocent, and that he had at the time ample means to pay all his debts. On the- other hand, however, if the evidence shows that one had ample means to pay all his debts, the conveyance to his child of property of small value, together with other facts tending to show good faith, would be sufficient to justify the conclusion that the transfer was not fraudulent. Mente & Co., Inc., v. Westbrook, supra.
The value of the property conveyed to the children in this instance was small, nobody fixing its value above $500. It is not only shown by the evidence that there was a disastrous flood in 1927, but this is a matter of common knowledge. The undisputed proof in this case shows that the appellee lost his stock, his oat crop and other property, and, but for these disasters and reverses, the value of his property would have been considerably more than his indebtedness. As to whether the conveyance in this case was fraudulent, and as to whether the debtor at the time had ample property out of which appellant could have made his money, are questions of fact, and the chancellor’s decisions or findings on questions of fact are conclusive here, unless contrary to the clear preponderance of the testimony. Mente & Co., Inc., v. Westbrook, supra; Pattison Orchard Co. v. S. W. Ark. Utilities Corp., 179 Ark. 1029, 18 S. W. (2d) 1028; Sternberg v. Blaine, 179 Ark. 448, 17 S. W. (2d) 286; Cain v. Mitchell, 179 Ark. 556, 17 S. W. (2d) 282; Jenkins v. Jenkins, 81 Ark. 68, 98 S. W. 685; Claypool v. Johnston, 91 Ark. 549, 121 S. W. 941.
We have carefully considered all the evidence in the case, and have reached the conclusion that the finding of the chancellor is not against the preponderance of the evidence, and the decree is therefore affirmed. | [
-12,
73,
-48,
60,
10,
96,
42,
-118,
90,
-29,
55,
83,
-27,
70,
0,
121,
-30,
105,
117,
120,
-27,
-78,
51,
-95,
-62,
-77,
-55,
-35,
-8,
-51,
-12,
-41,
12,
48,
-54,
-107,
-126,
-64,
-83,
92,
46,
3,
9,
100,
89,
86,
48,
-93,
84,
75,
117,
-82,
-69,
106,
55,
-21,
76,
46,
79,
61,
88,
-72,
-94,
29,
121,
7,
-128,
6,
-104,
65,
74,
14,
-104,
49,
9,
-24,
115,
54,
-122,
85,
9,
27,
12,
38,
102,
51,
101,
-51,
-24,
-120,
14,
-9,
-123,
-89,
-94,
73,
3,
8,
-66,
-99,
125,
84,
7,
-2,
108,
-121,
61,
104,
0,
-17,
-44,
-125,
-116,
-71,
-116,
19,
-45,
47,
52,
113,
-49,
-30,
93,
-61,
49,
-97,
-122,
-9
] |
Smith, J.
Appellant Morrow and appellee Strait were opposing candidates for the nomination of the Democratic party for the office of Prosecuting Attorney in the Fifth Judicial Circuit in the State-wide primary election held August 9, 1932. This circuit is composed of four counties, and the vote of each, as certified after a canvass thereof by the respective central committees, was as “follows: Pi £ o o o te u o o a CD
For appellant Morrow:
Conway County. CM CO iO
Pope County. lO H CO r — (
Yell County . b— CO 00
Johnson County... Oi O o CM
Total ... 5293
For appellee Strait:
Conway County.3016
Pope County .2373
Yell County.2349
Johnson County . 519
Total ... 8257
Majority for appellee... 2964
Appellant brought suit in the Johnson Circuit Court to contest the nomination of his opponent, and has challenged the vote cast in both Pope and Conway counties.
Certain grounds of contest are alleged in the complaint which are not abstracted in the brief, but the grounds relied upon and abstracted by contestant are: (a) That persons were permitted to vote whose poll tax was paid later than the last Saturday before the first Monday in July, 1932; and (b) “Because there was no certified authenticated sworn list of qualified electors filed with the clerk of Conway County (and also Pope County) by the collector, as provided by law, and that the purported list was not filed by the collector with the clerk within the time provided by law, and that no legal election was held in said Conway County (nor Pope County), Arkansas.”
The court overruled a motion to dismiss the complaint, which motion was filed upon the ground that the supporting affidavit required by § 3772, Crawford & Moses’ Digest, was made only by citizens of Johnson County, where the suit was filed, whereas the elections complained of were held in Conway and Pope counties. It was also insisted, as ground to dismiss the suit, that it should have been brought in the Pulaski Circuit Court, and that no other court had jurisdiction.
Section 3772, Crawford & Moses’ Digest, reads as follows: “A right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee. The action shall be brought in the circuit court. If for the office of representative or a county or township office, in the circuit court of the county; and if for a circuit or district office, within any county in the circuit or district wherein any of the wrongful acts occurred ; and if for United States senator or a State office, in the Pulaski Circuit Court. The complaint shall be supported by the affidavit of at least ten reputable citizens, and shall be filed within ten days of the certification complained of, if the complaint is against the certification in one county, and within twenty days if against the certification in more than one county. The complaint shall be answered within ten days.”
The office of prosecuting attorney is a State office. Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380; Speer v. Wood, 128 Ark. 186, 193 S. W. 785; Dobbs v. Holland, 140 Ark. 405, 215 S. W. 709, 742. See also Cotham v. Coffman, 111 Ark. 108, 163 S. W. 1183. But the prosecuting attorney is not a State officer within the meaning of § 3772, Crawford & Moses’ Digest, supra. The prosecuting attorney is a State officer whose functions are performed in a subdivision of the State, whereas the State officer to which the statute quoted refers is one elected by the people of the entire State, and not in some political subdivision thereof.
The case of Lanier v. Norfleet, 156 Ark. 216, 245 S. W. 498, involved a contest over the nomination for State senator, a State officer elected by a particular subdivision of the State. We there entertained jurisdiction of a contest for the nomination for this office in a county other than Pulaski.
We are of the opinion also that the supporting affidavit made by citizens of Johnson County alone suffices to meet the requirements of § 3772, Crawford & Moses’ Digest. These affiants are citizens of the judicial circuit within which the election was held, and the statute does not require residence in the ward, or city, or county the vote of which is challenged.
We are of the opinion also that the Pulaski Circuit Court had no jurisdiction over this contest, but that the suit was one which could have been brought in any county within that circuit, and was properly brought in Johnson County, one of the counties comprising the Fifth Judicial Circuit.
We are of the opinion therefore that the motion to dismiss was properly overruled.
After the motion to dismiss had been overruled, s demurrer to the complaint was filed and sustained, and, the contestant declining to plead further, the cause was dismissed, and this appeal is from that order.
The demurrer raised the two questions first stated, and these we proceed to discuss.
The first is, whether persons whose poll taxes were not paid prior to the first Monday in July, but which were paid on or before the third Monday of that month, had paid within the time required by law to become eligible to vote in the ensuing August primary election.
Section 3741, Crawford & Moses’ Digest, provides that “The ‘time for collecting taxes,’ as this term is employed in the Constitution in connection with the payment of poll taxes, is hereby defined to be the period between the first Monday in January and the Saturday next preceding the first Monday in July, on which last-named date the collector is required by law to make his final settlement with the county court. ’ ’
Another section of Crawford & Moses’ Digest — ■§ 3740 — provides that on the first Monday in July of each year the collector shall file with the county clerk a list of the names of all persons who had paid poll taxes. In other words, poll taxes might be paid up to and on the Saturday preceding the first Monday in July, and on the first Monday the collector was required to file a list of the persons who had so paid, thns imposing- a very difficult, if not impossible, task.
Under this state of the law, the General Assembly, at its 1931 session, passed act 152, Acts 1931, page 406, which was entitled: “An act to amend § 3740 of Crawford & Moses ’ Digest, extending the time from the 1st to the 3d Monday in July, in which time the collector shall file with the county clerk a list of names of persons paying poll tax,, and the time from the 1st day of July to the 1st day of August for the county clerk to- record same. ’ ’
The title to this act indicates an intention to extend the time, not for paying taxes, hut for certifying the list of those who had paid. But the body of the act does not conform to that expression of the legislative intent. This act reads in part as follows: “Section 3740. On the third Monday in July of each year the collector shall file with the county clerk a list containing the correct names, alphabetically arranged (according to political or voting townships, and according to color) of all persons who have up to and including that date paid the poll tax assessed against them respectively. * * *”
The law is that the title of an act is not controlling-in its construction, although the title may be considered in determining its meaning when the meaning is otherwise in doubt. The language of the act of 1931, above quoted, is too plain to require reference to its title as an aid to its interpretation. Westbrook v. McDonald, 184 Ark. 746, 43 S. W. (2d) 356, 44 S. W. (2d) 331.
The language of the act of 1931, above quoted, says so plainly — that we cannot hold otherwise — that the collector’s certificate shall include the names of all persons “who have up to and including that date paid the poll tax assessed against them respectively.” The date referred to is, of course, the third Monday in July, this being the only date to which reference is made.
This construction of the act, which we think its unambiguous language requires, renders it in conflict with the portion of § 3741, Crawford & Moses’ Digest, herein-above quoted, and possibly also of certain other sections of the ■statute, but, even so, we must give effect to the last expression of the legislative will, and the prior laws must he conformed to harmonize with that expression. This rule of statutory construction is so well settled that no citation of authority is necessary.
It may he said, in this connection, that act 152 of the Acts of 1931 contains no reference to the time within which persons may assess for taxes, so the law in that respect remains unchanged. It was held in the case of Cain v. CarlLee, 168 Ark. 64, 269 S. W. 57, that a poll tax receipt did not qualify one to vote who had not been assessed as required hy law.
Section 3738, Crawford & Moses’ Digest, makes provision for the assessment of omitted names, hut one must he assessed in the manner required by law before the collector is authorized to issue him a poll tax receipt which entitles the taxpayer to vote. The collector could not therefore issue a poll tax receipt which would qualify one to vote who had not been assessed prior to the Saturday preceding the first Monday in July, as no provision was made for extending the time for assessing, the only provision being for the payment of taxes by persons already assessed.
The court was correct therefore in holding that the allegation in the complaint, that a voter had not paid his poll tax prior to the third Monday in July, did not state a fact rendering the taxpayer ineligible to vote, and was therefore demurrable on that count.
The court was also correct in its holding in regard to the allegation as to the failure of the collector to file an authenticated list of the voters in both Conway and Pope counties, as required by § 3740, Crawford & Moses’ Digest.
The official returns of the election are prima facie correct, and the burden of showing that they are not correct rests upon the person who alleges that fact. Tucker v. Meroney, 182 Ark. 681, 32 S. W. (2d) 631.
The official list of voters, which § 3740, Crawford & Moses ’ Digest, as amended by the act of 1931, supra, requires the collector and county clerk to prepare, is not evidence of an elector’s right to vote unless the list has been authenticated by the affidavit of the collector in person. The list of voters which the county clerk is required by § 3740, Crawford & Moses’ Digest, to have printed can be made only from a list verified by the affidavit of the collector and thereafter filed with the county clerk. But it must be first authenticated by the affidavit of the collector, and the county clerk has no authority to copy the printed list unless and until it is so authenticated. Cain v. McGregor, 182 Ark. 633, 32 S. W. (2d) 319.
Therefore, any list of voters, not based upon an authenticated list filed with the county clerk by the collector, furnishes no evidence of the.possession of a poll tax receipt, although the list has been certified by the clerk. Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314.
Recognizing the power of a careless or corrupt collector to cause great confusion and to disfranchise electors in cases of contests, it was said, in the case of Cain v. CarlLee, supra, that “The whole proceeding is statutory, and the statute must be substantially followed in all proceedings, even to the trial of the contest provided by the statute. There is a presumption that the election was conducted according to law, and that the candidate legally entitled thereto received a certificate of election, and the presumption cannot be overcome by mere charges of fraud or illegalities in the conduct of the election. If the Legislature thinks that the collectors are not performing the duties required of them by statute in the premises in addition to the remedy by mandamus which uow exists, it might by appropriate penalties amend the statute so as to punish the offender, even to the extent of removing him from office if he failed to comply with the statute. ’ ’
But we have never held, on the one hand, that an election was illegal and void where the collector had not filed with the county clerk an authenticated list of the names of the persons who had paid their poll tax. Nor have we held, on the other hand, that there could he no contest of an election where the authenticated list had not been filed by the collector. We held to the contrary in the case of Darmer v. White, 182 Ark. 638, 32 S. W. (2d) 625.
Section 3777, Crawford & Moses’ Digest, makes provision whereby qualified electors may vote, although their names do not appear on the list of voters prepared and published pursuant to § 3740, Crawford & Moses’ Digest.
In the case of Tucker v. Meroney, supra, the facts were that the collector had not filed with the county clerk a list of poll taxpayers duly authenticated by his affidavit as required by § 3740, Crawford & Moses’ Digest. The record in that case also showed that 36 votes were casi in the manner provided by § 3777, Crawford & Moses’ Digest, of which number the contestant had received 26. Upon this state of the record, the contestant contended that he was entitled to be certified as the nominee, but, in overruling that contention, it was there said: “These returns may be impeached by any competent evidence showing that they are not true. In Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314, it was held that the requirement of § 3777 of Crawford & Moses’ Digest that no person offering to vote-in a primary election shall be allowed to vote unless his name appears in the printed list of poll tax payers, required by § 3740, or unless he exhibits a poll tax receipt, or establishes that he has attained his majority since the last assessing time, is mandatory, and that its provisions must be substantially complied with. Bearing in mind that the official returns are quasi records and stand with all the force of presumptive regularity as held in the cases cited above until overcome by competent evidence, it will be readily seen that the contestant has not made out his case. All the ballots cast by the voters and returned by the proper officers are presumptively legal, and their verity is not impeached by showing that contestant received a majority of the votes cast by persons who had become of age since the last assessing time. In order to succeed, lie must prove that he received a majority of all the legal ballots cast at the election. ’ ’
The complaint does not therefore state facts sufficient, even when considered upon demurrer, to throw the entire vote of Pope and Conway counties into the discard. Electors may have been eligible whose names were not included in the list provided for by § 3740, Crawford & Moses’ Digest.
We therefore conclude that the complaint did not state a cause of action, and the demurrer was therefore properly sustained, and the judgment of the court below is affirmed. | [
53,
-20,
-88,
63,
-120,
-96,
80,
12,
-46,
-93,
101,
83,
-19,
66,
5,
121,
-21,
25,
113,
105,
-60,
-77,
119,
116,
50,
-77,
-85,
85,
-99,
73,
-28,
-11,
88,
120,
74,
69,
71,
70,
-51,
24,
-58,
11,
-117,
-20,
89,
-62,
56,
-1,
114,
15,
37,
-10,
-13,
40,
49,
99,
-51,
46,
-47,
42,
73,
51,
-98,
13,
125,
5,
-79,
-59,
-101,
-128,
64,
46,
-112,
49,
-58,
-8,
114,
-90,
-122,
-12,
7,
25,
-120,
98,
98,
40,
-71,
-25,
-84,
-87,
15,
62,
25,
-90,
-110,
121,
75,
10,
-74,
-99,
-2,
16,
15,
126,
-15,
-59,
29,
44,
-128,
-49,
-46,
-91,
7,
-96,
-116,
2,
-29,
-70,
-108,
113,
-55,
-18,
117,
-57,
54,
27,
-113,
-15
] |
Kirby, J.,
(after stating the facts). Appellant insists that insured had complied with all the conditions of the contract, had reached the age of 70 years and was entitled to a paid-up certificate for the amount of the contract of insurance, had a vested interest therein which could not be changed by any new bylaws or assessments; and that any agreement for the paid-up certificate for a less amount was without consideration and void, and that the court erred in its finding'and judgment that the benefit certificate issued to Helton, No. 17401, Ark., upon which this suit was instituted, had been surrendered by the insured during his lifetime, and that there was no liability thereunder.
Said benefit certificate No. 1740, Ark., contains these provisions: “Payments to cease after 20 years,” and “His agreement to pay all assessments and dues that may be levied during the time he shall remain a member of the Woodmen of the World.” The first clause “Pay ments to cease after 20 years” is a marginal notation placed on the policy before its execution and delivery, while the latter is a general provision appearing in the body of the certificate by reference and doubtless appearing in every type of certificate issued to members. Provision is made for the issuance of a paid-up certificate also, and the testimony shows and the court found that a paid-up certificate was issued to the insured upon his request, and, although it was for a smaller amount than the original certificate and for a less amount than appellant now insists was due thereunder, such certificate was issued and delivered to the insured during his lifetime and accepted by him, and there was no fraud shown or alleged in its procurement. The member was doubtless liable under the provisions of the policy above set out to pay all assessments and dues during the time he remained a member of the Woodmen of the World, and his acceptance of the paid-up certificate in settlement of his rights under the original certificate cannot be said to have been made without consideration, since he could have been required to pay assessments or dues' duly levied so long.as he remained a member of the order under the provision of the policy, regardless of the notation “payments to cease after 20 years,” which doubtless "was limited to the regular annual or monthly payments required for keeping the insurance in force. The regular assessments and dues had no relation to any others that might be properly levied under the constitution and bylaws during the time he remained a member.
Appellant did not recover or. show any greater amount to be due him than the amount for which in its answer the appellee offered to confess judgment, and the court did not err, having found only that amount to be due, in rendering judgment therefor and for the costs as the law provides.
We find no error in the record, and the judgment is affirmed. | [
48,
126,
-40,
-97,
24,
96,
42,
-102,
90,
-63,
-89,
83,
-7,
-62,
21,
103,
-29,
45,
80,
114,
-73,
-93,
51,
40,
-42,
-109,
89,
-59,
-79,
79,
-74,
84,
76,
60,
-118,
-43,
-26,
74,
-59,
24,
-58,
12,
11,
-31,
-7,
64,
48,
-33,
-44,
91,
117,
-106,
115,
42,
21,
-61,
45,
44,
105,
-87,
-48,
-72,
-114,
-123,
127,
29,
51,
6,
-100,
79,
-24,
46,
-104,
-79,
16,
-56,
91,
-74,
-122,
116,
47,
-103,
0,
98,
99,
32,
49,
111,
-100,
-104,
47,
-110,
31,
-91,
-74,
8,
51,
9,
-73,
29,
114,
20,
-74,
126,
-12,
20,
29,
41,
3,
-114,
-12,
-127,
-49,
-28,
-100,
-121,
-17,
-113,
-74,
80,
-49,
-30,
93,
69,
58,
27,
-114,
-38
] |
Smith, J.
On May 21, 1921, Henrietta Colter, being-indebted to Emma Anderson, executed a note to evidence the debt and a mortgag-e, of even date, to secure its payment one year after date. The mortgagor died intestate and childless on December 9, 1929. After executing the note and mortgage, the mortgagor married Preston Watts, who furnished his wife the money with which to pay the note, but he took no assignment thereof until December 14, 1929, which was subsequent to the date of the death of his wife. On the last-mentioned date Watts took an assignment of the note and mortgage to himself, and on September 2, 1931, brought suit against the heirs of his wife to foreclose the mortgage. No payments had been indorsed upon the note.
An answer was filed by Ogden, who alleged that he had acquired the interests of the heirs of Henrietta Col-ter. This answer alleged the note was barred by the statute of limitations. Other defenses were also set up, which we do not consider, as, in our opinion, the suit was barred by the statute of limitations at the time it was filed.
The court below found that the note was barred by the statute of limitations at the time it was paid, but it appears to have been the view of the chancellor that, having furnished the money with which to pay the note and the mortgage at the request of his wife, the mortgagor, plaintiff was entitled to a lien on the land for the money paid, against which sum the rent of the property subsequent to the death of plaintiff’s wife was charged him and credited on the debt claimed by him, and this appeal is from that decree.
It is conceded that, under act 149 of the Acts of 1925, page 441, entitled, “An act to abolish curtesy in this State,” the plaintiff — the husband — had an interest in the mortgaged property upon the death of his wife intestate, and that to protect this interest he had the right to be subrogated to any subsisting lien which he was required to discharge, and had discharged, to protect that interest. He was not a volunteer. Charmley v. Charmley, 125 Wis. 297, 103 N. W. 1106, 110 Am. St. Reps. 827; Spurlock v. Spurlock, 80 Ark. 37, 96 S. W. 753; Jefferson v. Edrington, 53 Ark. 545, 14 S. W. 903; McDaniel v. Conlan, 134 Ark. 519, 204 S. W. 850.
It is the law, however, as is very clearly stated in Charmley v. Charmley, supra, that the right acquired by the party thus subrogated is to use the security just as the original holder thereof might have done, and that “the devolution of such cause of action does not interrupt the running of the statute. Upon the termination of the full statutory period measuring the life thereof, it is destroyed. (Citing many authorities.) To enable a person to see what interest one .has in the property of another by the right of subrogation, he must look at the matter from the viewpoint of the original owner before the devolution.” The case of Brown v. Nelms, 86 Ark. 368, 112 S. W. 373, is to the same effect.
The mortgage being barred by the statute of limitations when the husband furnished the money to pay the note it secured, the lien thereof was not extended, nor was it acquired by subrogation. The lien had been extinguished before the payment was made. The money paid the payee in the note was not a payment on the note, but was a payment of the note, which was then an un-enforcible obligation. This payment did not revive the note, nor extend the lien securing it. The husband — the appellee here — acquired therefore no right which he could enforce under this mortgage.
It is to be borne in mind that this proceeding is not one to enforce the husband’s rights under the act of 1925, supra. Nor is it one to probate a demand against the estate of the deceased wife. We need not therefore consider whether it was barred as such demand. The suit is one to enforce, by subrogation, a mortgage securing a note, both of which instruments were assigned to the plaintiff, and the question presented is disposed of by holding, as we do hold, that, the note being barred when it was paid, no right of subrogation was acquired by the payment.
The decree of the court below will therefore be reversed, and the cause will be remanded, with directions to dismiss the complaint as being without equity. | [
-14,
109,
-112,
78,
72,
-16,
-118,
-104,
122,
-88,
-77,
87,
-19,
74,
85,
45,
96,
45,
117,
121,
37,
-77,
7,
0,
114,
-13,
-75,
-41,
-87,
93,
-28,
-105,
12,
48,
-62,
21,
-26,
-126,
-127,
88,
12,
-123,
-119,
100,
-35,
-64,
48,
107,
84,
76,
81,
111,
-13,
47,
53,
102,
109,
42,
-49,
-87,
-48,
-79,
-67,
13,
127,
23,
-111,
101,
-108,
-63,
74,
-118,
-112,
53,
-96,
-8,
115,
-90,
-122,
92,
78,
-101,
41,
102,
102,
48,
101,
-1,
-40,
-104,
15,
-10,
-99,
-121,
-80,
120,
2,
36,
-66,
-99,
124,
-111,
70,
-2,
-26,
-123,
29,
-24,
7,
-114,
-42,
-111,
15,
-8,
-112,
-125,
-14,
-125,
32,
113,
-49,
34,
93,
103,
123,
59,
-114,
-15
] |
Kikby, J.,
(after stating the facts). Appellants insist that they are entitled to recover in this cause under the provisions of the statute, § 10,507, Crawford & Moses’ Digest, their names being omitted from the will, as though the testator had died intestate, and the contention must be sustained. Rowe v. Allison, 87 Ark. 206, 112 S. W. 395.
Under the statute and its construction, appellants are entitled to inherit as though the testator had died intestate, in which event each would be entitled to one-half of the estate, since one was the adopted child and the other sole and only heir at law and legal representative of the other adopted child, and both were living on April 23, 1924, when the will was executed, and neither was mentioned or referred to therein. The rights of legally adopted children are the same as the rights of those born in wedlock. 24 E. C. L. 84.
Neither is there any merit in the objection that the suit should have been instituted in the chancery court instead of the probate court as expressly provided in said statute, § 10,507, Crawford & Moses’ Digest, as construed in Rowe v. Allison, supra. There is no contention that fraud had been perpetrated on appellants in the administration of the estate, it being conceded that the administration of the estate was free from fraud, and it is undisputed that the executor or the church had no knowledge of the adoption of the appellants by the testator until shortly before this suit was filed in 1931.
It is next contended that the claim of appellants to the estate is barred 'because no appeal was taken by them from the order approving the final settlement of the executor. It is stipulated that appellants had no knowledge of the death of the testator until more than two years after the settlement had been approved, when it was too late, of course, to take an appeal from the order of approval. The will was probated in, common form without notice having been given, and there was no effort made during the administration of the estate of Troeger, which began on April 27, 1925, and was concluded on March 26, 1928, upon the approval of the final settlement and distribution of the executor, to obtain jurisdiction over appellants or any other persons who might have been interested in the probate of the will under the provisions of the statute, §§ 10,522 to 10,525, Crawford & Moses’ Digest. The order of approval and confirmation of the final settlement of the executor were conclusive only of the matters embraced in the settlement, the court finding only that the assets of' the estate had been reported and administered in the proceeding of which appellants had had no notice, either actual or constructive, and it did not operate to bar appellants from asserting their claim to the estate distributed to the trustees of the church upon their learning of the death of their foster parent and the improper distribution of the funds of the estate. Beckett v. Williamson, 92 Ark. 230, 122 S. W. 633. See also Scott v. McNeal, 154 U. S. 34, 30 L. ed. 896. The order of the probate court distributing that part of the estate to the church instead of the children surviving the testator, whose adoption was unknown at the time of the administration, was void as against them.
Since there is no special statute of limitations providing when or the period within which pretermitted children must bring suit to recover their share in the estate, they had 5 years in which to do so under the provisions of the statute, § 6960, Crawford & Moses’ Digest. See also Hill v. Wade, 155 Ark. 490, 244 S. W. 743. The money was not paid by the executor to the church until March 2, 1928, and the rights of appellants could not have arisen until the wrongful distribution of such money, and the statute began to run against them on the said date of its payment, and they were not barred by the 5-year statute of limitations, this suit having been instituted in 1931. Neither were they barred by laches, having brought the suit within the time allowed.
The court erred in not holding the appellants entitled to judgment for their claim, and the judgment must be reversed, and the cause remanded with directions to enter judgment in favor of the appellants, and for their costs. It is so ordered. | [
-46,
108,
-36,
44,
-101,
-31,
42,
26,
83,
-29,
37,
83,
109,
-33,
4,
111,
85,
-87,
81,
123,
-42,
-29,
22,
-127,
-46,
-13,
-7,
95,
-79,
77,
101,
-12,
68,
32,
10,
-11,
98,
-124,
-59,
112,
-114,
-56,
-88,
45,
-7,
112,
52,
115,
84,
7,
85,
-98,
-77,
-86,
56,
-57,
104,
44,
-5,
-72,
-48,
-72,
-113,
5,
76,
6,
-95,
7,
-70,
-91,
104,
-118,
8,
-43,
1,
-24,
113,
-74,
-62,
116,
99,
-119,
9,
100,
-26,
32,
109,
-27,
-40,
-104,
46,
38,
-99,
-91,
-112,
88,
-61,
5,
-65,
-103,
112,
80,
47,
-4,
-26,
-116,
28,
56,
36,
-113,
-42,
-73,
45,
106,
-104,
3,
-25,
-89,
50,
113,
-37,
2,
84,
71,
119,
-109,
-122,
-14
] |
Hart, J.
On January 19,1916, a petition was filed in the county court of Polk County, Arkansas, to annex certain territory of School District No. 44 to Rural Special School District No. 10. The petition was signed by the directors of Rural Special School District No. 10, and by certain qualified electors residing in the territory to be annexed. A map was annexed to the petition, and it shows that about fifteen hundred acres of land was asked to be taken from Common School District No. 44, and that there was left in it only about eight hundred acres of land. The petition was filed under section 7695 of Kirby’s Digest, which provides that the county court shall annex contiguous territory to single school districts under the provisions of the act when a majority of the legal voters of said territory and the board of directors of said single district shall ask by petition that the same shall be done. On the same day the petition was presented to the county court and the prayer of the petition was granted and the territory described in the petition and plat was ordered annexed to Special School District No. 10 as prayed for.
In Rural Special School District No. 17 v. Special School No. 56, 123 Ark. 570, the court held that the language of section 7695 was not mandatory. On July 14, 1916, two of the directors of School District No. 44 filed their affidavit for appeal in statutory form. The county court entered an order allowing the appeal and directing its clerk to file a transcript of the papers and the proceedings in the case with the clerk of the circuit court, which was done.
In the circuit court, Rural Special School District No. 10, through its directors, filed a motion to dismiss the appeal on the ground that School District No. 44 was not a party to the proceedings in the county court, and had no right to appeal under the statute. The circuit court sustained the motion and ordered that the appeal be dismissed. The directors of School District No. 44 have appealed to this court.
Article 7, section 33, of the Constitution of 1874, provides that appeals from all judgments of county courts may be taken to the circuit court under such restrictions and regulations as may be prescribed by law. To carry this provision of the Constitution into effect, the Legislature enacted section 1487 of Kirby’s Digest, which provides that appeals shall be granted as a matter of right to the circuit court from all final orders and judgments of the county court at any time within six months after rendition of same by the party aggrieved filing an affidavit and prayer for appeal with the clerk of the court in which the appeal is taken. The record shows that an affidavit and prayer for appeal was filed within the time prescribed by this statute by the directors of School District No. 44, and that the county court granted the appeal.
It is the contention of counsel for appellee, however, that because School District No. 44 was not formally made a party to the proceedings in the county court by an order of the county court that it is not “the party aggrieved” within the meaning of section 1487 of Kirby’s Digest. To support this contention, they rely on Casey v. Independence County, 109 Ark. 11; Phillips v. Goe, 85 Ark. 305, and Turner v. Williamson, 77 Ark. 586.
The Casey case was where a citizen and taxpayer was allowed to intervene in proceedings in the county court for the designation of a county depositary. In the Phillips case, the revocation of a prohibitory order of the sale of liquors was involved. In the Turner case the question of granting a ferry license was in issue. In each of these cases and in other cases of like character, where a citizen and taxpayer whose interest is not directly affected by the special proceedings, desires to appeal from the order of the county court, he must appear in that court and be made a party to the proceedings. In no other way could the record show his interest in the proceeding or his right to appear and be made a party thereto. After the order in the case is made, the proceedings are at an end so far as the county court is concerned; unless it should exercise its right of setting aside the order during the term for cause shown. So the proceedings being at an end in that court, the county court could not determine whether the party seeking to appeal was directly interested in the subject-matter of the litigation and he is not a “party aggrieved” within the meaning of the statute.
Here the facts are essentially different. School District No. 44 is a party to the record by virtue of the statute under which the proceedings were instituted and its right to test the validity of the proceedings by appeal is clear. By the terms of the statute its right to the property asked to be taken from it and annexed to the special school district was to be established or divested by the judgment of the county court. It had no other time, place or forum in which to determine its rights in the matter. If the petition was granted, its rights to the property were lost, and if the petition was rejected, the property remained its own. We think the right of the directors of the district to appeal is analogous in principle to that of the county judge where the interests of the county are involved. We have a statute which provides that when appeals are prosecuted in the circuit court or Supreme Court, the judge of the county shall defend same. This court held that by imposing this duty upon him, the statute incidentally and necessarily invested him with the right to appeal in behalf of the county. Ouachita County v. Holland, 60 Ark. 516.
In the later case of Ex parte Morton, 69 Ark. 48, where the adult inhabitants residing within three miles of a schoolhouse filed a petition in the county court asking the county court to make an order prohibiting the sale of intoxicating liquors within three miles of a schoolhouse, the county court refused to make the order and the petitioners appealed to the circuit court. The circuit court granted the prayer of the petition and made an order forbidding the sale of intoxicating liquors wdthin the territory named. The record then recites that thereupon the county judge asked that the county be made a party, which request the court refused. He then prayed an appeal to the Supreme Court, which was granted. The Supreme Court held that the county judge had the right to appeal from the order of the circuit court.
Mr. Justice Riddick, speaking for the court, said: “Our statute provides that when appeals from the orders and judgments of a county court are prosecuted in the circuit or Supreme Court, the judge of the county court shall defend the same. Sand. & H. Dig., 1270. This, as heretofore decided, includes the right to take an appeal. Ouachita County v. Rolland, 60 Ark. 516, 31 S. W. 144. Nor do we think it was necessary that either the county or the county judge should be made a party to the proceedings in the circuit court, in order to exercise this right. The circuit judge did not err in refusing to make the county a party, but the county judge still had the right to appeal by virtue of the statute, and the motion to dismiss the appeal must therefore be overruled.”
We think the rule there announced applies with equal force here. Section 7541 of Kirby’s Digest provides that each school district shall be a corporate body, and under its name may sue and be sued in any of the courts of this State having competent jurisdiction. Section 7614 provides that the directors of the school district shall have charge of the schoolhouse and grounds and other property belonging to the district, and shall carefully preserve the same. Section 7626 provides that the school directors, in all suits and actions at law brought by or against their district, shall appear for and in behalf of said district.
Thus it will be seen that the trend of our decisions is that “the party aggrieved” by the judgment must appear by the record. In application of this rule to the present case a citizen or taxpayer of School District No. 44 would not be allowed to take an appeal from the judgment of the county court unless he had been made a party to the proceedings in that court or had asked to be made a party upon proper showing. The reason is that his interest in the judgment would not appear by the record, and he would not be a “party aggrieved” within the meaning of the statute. On the other hand proceedings under section 7695 necessarily involve the school district from which the property is sought to be taken and annexed to the special school district and by force of the statute it is an interested party just as much as the county is an interested party when an order affecting its interest is made. As shown by the record in the present case, the greater part of its territory is sought to be taken away. In any case the schoolhouses and other property of the district might be situated on the ground asked to be annexed to the special school district. By the statute it is made the duty of the directors of the school district to protect its property and to represent the district in all suits by or against it. This undoubtedly carried with it the right of the directors to have appeared in the county court and resisted the proceedings in the present case. The power given by the statute also gave them the right to appeal without .first having appeared in the county court with just as much reason as the statute making it the duty of the county judge to defend for the county gave him the right to appeal from the judgment of the circuit court without first having formally made the county a party to the proceedings in the circuit court. In short, our views are that under section 7695, the school district from which territory is sought to be taken and annexed to a special school district is made a party to the proceedings by virtue of the statute, and the directors of such school district may take an appeal from the proceedings without first having appeared in the county court and asked to be made a party to the proceedings therein.
For the error in dismissing the appeal of School District No. 44, the judgment must be reversed and the cause will be remanded for further proceedings according to law. | [
116,
-50,
-36,
60,
-86,
-95,
95,
-114,
-62,
-69,
101,
83,
-17,
-40,
28,
113,
-94,
-83,
101,
120,
-44,
-93,
83,
-56,
16,
-13,
-19,
-41,
57,
95,
-10,
87,
78,
48,
-22,
85,
68,
-56,
-115,
-100,
-114,
1,
-87,
78,
81,
-62,
56,
97,
58,
15,
113,
110,
-77,
44,
26,
-61,
-51,
44,
89,
-82,
65,
-40,
-98,
95,
-1,
7,
33,
99,
-102,
-125,
64,
-86,
-112,
49,
0,
-20,
22,
38,
-122,
71,
9,
25,
-120,
32,
102,
26,
-72,
-57,
-72,
-88,
14,
-98,
57,
-26,
-126,
9,
106,
14,
-98,
-99,
95,
-110,
15,
122,
-95,
-59,
22,
108,
-114,
-18,
-76,
-73,
-123,
-84,
-102,
3,
-13,
29,
48,
117,
-127,
-42,
88,
-57,
51,
-101,
-50,
-7
] |
Humphreys, J.
This is an appeal from a judgment of $1,'250 obtained by appellee against appellant in the circuit court of Columbia County for an injury received through the negligence of a fellow-servant. A reversal of the judgment is sought upon the ground that the undisputed testimony reflects that both appellee and his fellow^servant were employees at the time of the injury of J. M. Deckard and not employees of appellant.
Appellant introduced three witnesses, J. M. Deckard, J. C. Donnegan, its foreman and logging superintendent, and D. Gr. Tyler, its bookkeeper, who testified concerning the kind of contract existing between appellant and J. M. Deckard at the time appellee received his injury. J. M. Deckard testified that appellant was the owner of certain timber, which he agreed to cut and haul for it from the land to its logging road for $4 per thousand, he to furnish the teams, equipment and men necessary to do the work; that he cut and sawed the trees into logs of lengths directed by appellant’s woods foreman ; that he employed and discharged his own men and paid them without instruction, direction or supervision of any of appellant’s employees, and, at the time appel-lee was injured, both appellee and the driver who caused the injury were his employees and on his payroll; that his employees traded at appellant’s commissary, and that what they bought was charged to him and paid for by him and deducted from the wages of said employees when he made up his payroll; that when he made up and presented his payroll, the company would issue him a check for the total amount, and that he would cash the check and take the money to Mr. Tyler, appellant’s bookkeeper, and ask him to put each employee’s wages in an envelope and hand it to him when he called for it; that Mr.- Tyler used appellant’s pay envelopes in doing this because he had no others; that appellant had no teams in Arkansas; that he requested Mr. Tyler to procure insurance for him on employees and deducted premiums from amounts due him on settlements; that, when appellee was injured, he made the proofs to the insurance company and directed him to go to Tyler and collect same, which he did.
Deckard was corroborated in all essential particulars by the testimony of J. C. Donnegan, the woods foreman and log superintendent of appellant, who made the contract with Mr. Deckard. The testimony of Deckard was also corroborated by that of D. Gf. Tyler, who was appellant’s bookkeeper. Tyler stated that they settled with Deckard once or twice, a month, and, in doing so, figured up what was coming to him on the basis of $4 per thousand on scale showing how many feet he put on the track, and deducted therefrom his feed bills, any advances he might have received, and his payroll check; that he handled two of the payrolls upon which appellee’s name appeared and that he was paid at Deckard’s request; that the payrolls showed that they were Deckard’s payrolls.
It was admitted by appellee and one of his co-employees, who testified in his behalf, that Deckard1 employed and directed them in their work, and that no other employee of appellant gave them any directions or instructions in the performance of their work. They both claimed to be employees of appellant because they were handed their wages by appellant’s bookkeeper in appellant’s pay envelopes and because appellee received his insurance money from appellant’s bookkeeper, and that on one occasion appellee asked Deckard to get his wages, and that Deckard asked him to give him an order for same.
We do not think these circumstances in themselves sufficient to warrant the court in submitting the question to the jury of whether appellee and the fellow-servant who caused his injury were in the employment of appellant, or in the employment of Deckard as an independent contractor. The first two circumstances were satisfactorily explained as matters of convenience, and the third circumstance was so slight and unimportant that it cannot be regarded as sufficient substantial testimony to support a verdict.
The testimony, in all essential parts, reflected, without substantial dispute, that Deckard was an independent contractor and that appellee and his felloe-servant, who was responsible for Ms injury, were in tbe employment of Deckard and not appellant.
Tbe court erred, under tbe evidence adduced,- in not instructing á verdict for appellant, so tbe judgment is reversed, and tbe cause is remanded for a new trial. | [
16,
-20,
-8,
-116,
26,
96,
106,
26,
89,
-95,
101,
83,
-17,
-57,
9,
43,
-25,
-51,
-11,
122,
-25,
-77,
23,
97,
-110,
-109,
-7,
-59,
-68,
74,
-28,
-43,
77,
48,
74,
-111,
-26,
64,
-59,
20,
-114,
0,
-87,
-18,
89,
64,
56,
-66,
80,
75,
49,
-98,
-21,
42,
29,
75,
45,
44,
107,
41,
-16,
112,
-118,
5,
31,
5,
-80,
102,
-104,
3,
72,
12,
-112,
49,
1,
-40,
115,
-74,
-62,
84,
65,
-103,
9,
102,
102,
35,
29,
-121,
-116,
-72,
14,
-66,
-99,
-89,
-112,
57,
11,
73,
-106,
-99,
120,
16,
22,
126,
-12,
29,
29,
108,
3,
-113,
-108,
-77,
-115,
36,
-98,
19,
-21,
27,
54,
113,
-34,
-94,
93,
7,
51,
-97,
-114,
-45
] |
Battle, J.
It has been repeatedly held by this court that, unless an order of attachment has been sued out malic iously, the defendant in the attachment is entitled to recover of the plaintiff no damages, except compensatory, on account of the order of attachment having been wrongfully issued. Holliday v. Cohen, 34 Ark. 710; Goodbar v. Lindsley, 51 Ark. 382.
The only loss the evidence shows that the plaintiff in this case suffered on account of the order of attachment sued out against him by the defendant was the value of the use of his team for two days and his loss of time. The evidence does not show that the value of his time was a proximate loss, yet, conceding that it was, the evidence does not show that his damage exceeded $4. The value of the use of the team was three dollars, and of his own time was one dollar. Appellant conceded in the circuit court, and concedes here, that the plaintiff was entitled to $4 for his damages. Now, if the plaintiff will, within fifteen days, remit all of the $46 recovered by him, except $4, the judgment for the remainder will be affirmed; otherwise, it will be reversed, and the cause will be remanded for a new trial. | [
-80,
124,
-72,
124,
24,
32,
42,
-102,
-63,
1,
-9,
83,
-17,
-57,
17,
107,
-9,
105,
101,
106,
94,
-89,
23,
-61,
-46,
-109,
9,
68,
-71,
-19,
-28,
-34,
84,
56,
-54,
-43,
98,
75,
-59,
84,
-54,
-124,
-71,
109,
-39,
64,
48,
123,
20,
71,
49,
-97,
-5,
42,
-104,
67,
108,
41,
107,
113,
-64,
121,
-61,
77,
111,
4,
-79,
36,
-98,
27,
-38,
46,
-112,
57,
-127,
-7,
114,
-74,
-122,
116,
65,
-71,
8,
96,
99,
-124,
24,
-25,
-36,
-68,
39,
118,
-97,
-89,
-111,
88,
11,
77,
-66,
-99,
98,
16,
-122,
126,
-15,
77,
24,
108,
7,
-50,
-44,
-77,
-81,
100,
28,
-125,
-21,
19,
20,
97,
-52,
-96,
88,
71,
59,
-101,
-121,
-41
] |
Battle, J.
Section 12 of an act entitled “An act to provide for the creation and regulation of incorporated companies,” approved April 12, 1869, which is sections 1337 and 1338 in Sandels & Hill’s Digest, is as follows:
“The president and secretary of every corporation organized under the provisions of this act shall annually make a certificate showing the condition of the affairs of such corporation, as nearly as the same can be ascertained, on the first of January or July next preceding the time of making such certificate, in the following particulars, viz: The amount of capital actually paid in; the cash value of its real estate; the cash value of its personal estate; the cash value of its credits'; the amount of its debts; the name and number of shares of each stockholder; which certificate shall be deposited on or before the 15th day of February or of August with the county clerk of the county in which said corporation transacts its business, who shall record the same at length in a book to be kept by him for that purpose; and whenever any stockholder shall transfer his stock in any such corporation, a certificate of such transfer shall forthwith be deposited with the county clerk aforesaid, who shall note the time of said deposit and record it at full length in a book to be kept by him for that purpose; and no transfer of stock shall be valid as against any creditor of such stockholder until such certificate shall have been deposited.”
Does the transfer of stock mentioned in this section include pledges of stock, or those transactions by which liens upon the same are acquired^ This is the only question necessary for us to decide in this case. Eliminating from the section all except what has reference to the question, it reads as follows: “The president and secretary of every corporation organized under the provisions of this act shall annually make a certificate showing the condition of the affairs of such corporation, as nearly as the same can be ascertained, on the first day of January or July next preceding the time of making such certificate, in the following particulars, viz: * * * the name and number of shares of each stockholder; which certificate shall be deposited on or before the 15th day of February or of August with the county clerk of the county in which said corporation transacts its business;. * * * and whenever any stockholder shall transfer his stock in any such corporation, a certificate of such transfer shall forthwith be deposited with the county clerk aforesaid, who shall note the time of said deposit and record it at full length in a book to be kept by him for that purpose; and no transfer of stock shall be valid as against any creditor of such stockholder until such certificate shall have been deposited.” It is evident that the object of the certificate of the president and secretary as to the name and number of shares of each stockholder and that of the transfer of the stock by the stockholder are the same; and that the latter is intended to carry into effect the intention of the former; and that the object of both is to make known the names of the stockholders and the number of shares owned by each of them. This being true, it is obvious that the transfer of stock referred to was the absolute transfer of the legal and equitable title to stock, and not pledges or liens. This section does not undertake to regulate the creation or protection of liens, and hence does not affect those transactions by which liens are created without the transfer of stock, or any indorsement and delivery of stock which do not transfer, and create only a lien.
Section 12 of the act of April 12, 1869, was construed, in part, by the circuit court of appeals of the Eighth circuit of the United States, and the same question we have under consideration was decided in Masury v. Arkansas National Bank, 93 Fed. Rep. 603. Judge Thayer, speaking for the court, said: “Looking at the two sections (sections 1337 and 1338 in Sandels & Hill’s Digest) in the form in which they were originally enacted, the inference is a reasonable one that the legislature had in mind transfers whereby a shareholder parted with his entire legal and equitable title to the stock transferred, when it declared, in the concluding clause of the section, that whenever a stockholder transferred his stock a certificate of such transfer should be deposited with the county clerk. While the act does not in terms prescribe by whom the certificate of transfer shall be filed, whether by the corporation or by the person receiving a transfer of stock, nor what the certificate shall contain, yet it is fair to presume that the lawmaker intended to say that a person purchasing stock should obtain a certificate from the proper corporate officer to the effect that he had acquired certain shares of stock from a certain person or persons, and cause the same to be deposited with the county clerk as one of his muniments of title. The object of the legislature in requiring the county clerk to receive and record semi-annual reports from the officers of corporations, showing their financial condition and who were the shareholders, and to register transfers of stock made in the meantime in a book kept for that purpose, would seem to have been to provide a convenient record which might be consulted for the purpose of taxation, or for the purpose of ascertaining who had control of a corporation, and were responsible for its management, or who might be proceeded against as shareholders to enforce a stock liability in case a corporation became insolvent. All of these objects will be substantially subserved by holding that the section of the act now in question has reference to absolute sales of stock, and that it does not comprehend transfers which are effected by a simple indorsement and delivery of stock certificates as collateral security, inasmuch as creditors who thus hold stock in pledge which has not been transferred on the books of the corporation are not entitled to vote the stock or take part in the manage- meat of the corporation, and ordinarily cannot be proceeded against as stockholders to enforce a stock liability. National Bank of Commerce v. Allen, 33 C. C. A. 169; Vowell v. Thompson, 3 Cranch, C. C. 438; Brewster v. Hartley, 37 Cal. 15; Cook, Stock & S. § 468, and cases there cited.”
Our conclusion, as already indicated, is that the transfer of stock mentioned in section 12 of the act of April 12, .1869, does not include pledges or transactions by which liens only are acquired.
The judgment of the circuit court is reversed, and this action is dismissed.
Bunn, C. J., and Hughes, J., dissent. | [
-10,
126,
-36,
-4,
-118,
96,
43,
-70,
-55,
-95,
39,
115,
111,
106,
16,
101,
-63,
37,
81,
64,
-11,
-13,
23,
75,
-62,
-109,
-47,
-49,
55,
79,
-26,
-59,
77,
-80,
-102,
-43,
-26,
66,
-63,
30,
78,
13,
58,
-64,
-11,
96,
52,
39,
82,
-53,
81,
-34,
-96,
33,
90,
95,
41,
44,
-50,
-87,
-63,
-75,
-97,
-51,
127,
23,
-109,
100,
-103,
47,
-56,
-116,
42,
17,
-44,
-31,
94,
-74,
-106,
-44,
41,
75,
40,
106,
39,
0,
5,
-19,
-104,
-100,
44,
-42,
15,
-122,
80,
125,
27,
8,
-75,
31,
70,
16,
6,
-10,
110,
-44,
16,
44,
5,
-113,
-58,
-94,
13,
-18,
-104,
7,
-1,
-93,
48,
81,
-52,
-73,
95,
79,
40,
19,
-122,
-44
] |
Mehaeey, J.
This action was begun in the county court of Pulaski County by the appellee, filing its claims for the Arkansas Tuberculosis Sanatorium against the county for the maintenance of tuberculosis patients, the claims aggregating $18,755.
The county court found that the claims "were correct and unpaid, and that they should be paid by Pulaski County as soon as it has funds available for that purpose, but the county court was of the opinion that, under the provisions of amendment No. 10, it had no right to make an order allowing such claims, or to issue warrants thereon, and the court entered the following order:
“It is ordered that no order of allowance of said claim he made at this time, and that no warrants issue thereon now, and that the request of said hoard of trustees that allowance he made and warrants issued thereon at this time is denied, and that this order is a final judgment in that regard.”
An appeal was granted to the circuit court, where it was tried on the following ‘statement of facts:
“STATEMENT OE0EACTS
“In each of the Pulaski County fiscal years of 1930 and 1931, on orders of the county court, duly made and entered for each patient, patients were sent and admitted to the Arkansas Tuberculosis Sanatorium for maintenance in the manner required by law, whereby the county was to pay five dollars a week toward the maintenance of each of said patients, and during each of those fiscal years patients from Pulaski County were maintained at said sanatorium under such orders of the county court, hut in each of the quarterly periods ending on the date hereinafter described, and the monthly period ending October 31, 1931, hereinafter described, the county failed to pay to the sanatorium the respective amounts accruing in the preceding quarterly periods and in the one monthly period shown opposite the last day thereof, as follows:
June 30, 1930.$3,275
September 30, 1930. 3,170
March 31, 1931. 4,125
June 30, 1931. 3,855
September 30, 1931. 3,260
October 31, 1931.-... 1,070
Nor did the county court enter any orders of allowance or issue any warrants on any of said claims.
“The amounts are correct, and represent the respective amounts unpaid for maintenance of Pulaski County patients at the sanatorium in the respective periods stated, at the rate of five dollars per week per patient.
“That claims in the usual form provided by law for claims against the county, describing the foregoing amounts as owing by the county to the sanatorium, were sent to the county judge of Pulaski County within a few days after the end of each of the said periods, and were by him duly filed and kept in the records of the county court.
“In the fiscal year of 1930, the total amount appropriated by the quorum court for the maintenance of patients in the sanatorium was $13,000, and the amount paid in that fiscal year by the county on that account was $9,690, leaving $3,310 between the amount paid and the amount appropriated; and the total unpaid was $6,445.
“In the 1931 fiscal year, $10,000 was appropriated for the sanatorium, and $3,560 was paid on that account, leaving $6,440 of the appropriation that has not been paid, and a total unpaid of $12,310.
“No allowances were made or warrants issued in either of the years above the amount paid as described.
“In the fiscal year of 1930, the total county revenues, plus the valid floating indebtedness carried over from preceding years (including the amount of the indebtedness herein claimed in that year) did exceed the total valid contracts and allowances for that year; and the same is true of the 1931 fiscal year.
“The total county indebtedness incurred in the 1930 ' fiscal year did not exceed the revenues for that year; and the total county indebtedness incurred to October 1,1931, was about $8,000 less than the total county revenues for the 1931 fiscal year. But an indebtedness was incurred after October 1st to November 1st of about $58,000 in excess of the revenues for that fiscal year; so that at the time all of the claims herein accruing in the fiscal year of 1930 were due, amounting to $6,445, the revenues for that year had not been exceeded. And the same is true of the-claims herein that accrued in the 1931 fiscal year to September 30, 1931, amounting to $11,240, leaving the claim for the month of October, 1931, amounting to $1,070 in excess of the revenues for that year, except that the total county debts for that year, accrued to October 1, 1931, were $8,000 less than the total revenues for that year.
“"Where the fiscal years of 1930 and 1931 are referred to herein, it is meant the fiscal year ending the first Monday in November in each of those years.
“Many of the patients, for whom the county’s part of the maintenance is in the claim now made and unpaid, are still 'being maintained at the sanatorium and have not recovered from tuberculosis.
“There is attached to and made a part of this statement of facts, as Exhibit A, a statement showing the amount owing by -the several counties in the State to the sanatorium for maintenance of patients sent from each, together with the number of patients from each county; the financial part of the statement being the condition on May 1, 193'2, and the number of patients being those at the sanatorium on May 23, 1932. It is agreed that Dr. J. D. Biley, superintendent in charge of the sanatorium, would testify that the statement is correct, and it shall be received herein as his testimony, with the same effect as if shown in his deposition duly taken and filed herein.
“On December 7, 1924, there was outstanding general revenue fund indebtedness of Pulaski County in a substantial amount, not funded by bond issue, and the total amount of such outstanding indebtedness has not, at any time since that date, been reduced below the total amount of such valid non-bonded indebtedness of the county now outstanding, including the total amount of the claims involved herein.
“Signed this 28th day of May, 1932.”
There was an exhibit which was made part of the agreed statement of facts, which showed the financial condition of the county, together with number of patients from each county. There is no necessity of copying this exhibit.
The circuit court allowed the claims in the aggregate sum of $18,755, and ordered the county court to allow it and issue warrants therefor, and judgment was entered accordingly.
Motion for new trial was filed and overruled, and the case is here on appeal.
This suit involves amendment No. 10 of the Constitution. This amendment has been before the court many times.
It will be seen from the agreed statement of facts that the only question for us to determine is whether or not the county court can allow this claim at a time when allowance of said claim would be in excess of the revenue from all sources for the current fiscal year.
The debt of the county was incurred and the claims were due at a time when they could have been paid without violating amendment No. 10. The claims were sent to the county judge, but were not acted on. Nothing was ever done by the appellees to get action on the claims at a time when they could be lawfully paid.
It is apparent that everybody connected with the ease not only concedes that the claims are just, but that they should be paid if there is any way in which this can be done without violating amendment No. 10.
Appellee calls attention to a number of authorities, all of which we have carefully considered, but we think the decisions of this court construing amendment No. 10 settle this case beyond controversy.
The claims are not only just, but they are of such character that everybody would be glad to see them paid, and all regret that the situation is such that payment is impossible without a violation of the plain provisions of the Constitution. The failure to pay them will necessarily result in great hardship. That, however, does not justify the courts in violating the provisions of the Constitution.
Many instances might be named where decisions of the courts worked great hardships, and courts always regret to have to render decisions that will do this.
The law requires all demands against the estate of any deceased person to be made within one year, and all demands not exhibited, as required by law, before the end of the year are forever barred. It is wholly immaterial that the claim is just, that the estate may be very valuable, and the claimant very poor; no matter what the equities are, if the claim is not exhibited, as required by law, witbin one year, it cannot be paid.
The owner of a promissory note must bring his action before the claim is barred by the statute of limitations. If the creditor fails to do this, his claim is barred and cannot be collected.
Under the provisions of amendment No. 10, the county court cannot make a contract, and cannot make any allowance for any purpose whatsoever in excess of the revenues from all sources for that year.
The court is not only prohibited by this amendment from making an allowance, bnt the county judge cannot sign or issue any script or warrant in excess of the revenue, and, if a warrant was issued on this claim, the officer or officers of the county who authorized, signed or issued such warrant would be guilty of a misdemeanor, and subject to fine and removal from office.
The holders of the claims involved in this suit might have compelled action by the Pulaski County Court and collected their money. It was their duty to do this.
It was said in the last ease construing amendment No. 10:
“The holder of a valid warrant may, by an appropriate action, compel the redemption of his warrants, to the exclusion of an invalid warrant, and he may, if necessary, enjoin the redemption of an invalid warrant. The invalid warrants cannot be received by any collecting officer of the county, and the officer who does receive one does so at his peril and is not entitled to take credit for it in any settlement of his account, because the wa'rrant is void. It is issued without authority, and the action of a collecting officer in receiving it cannot give it validity. Counties (and cities and towns also) must pay as they go, and can go only so far as they can pay, and they are without power to make or authorize any contract or make any allowance or issue any warrant for any purpose whatsoever in excess of the revenues, from all sources, for the fiscal year in which said contract was entered into, or allowance made, or warrant issued.
None of these statements announce any new interpretation of the amendment, hut all have been made one or more times in the numerous cases interpreting the amendment, in a more or less futile attempt to coerce the fiscal officers of the counties, cities and towns of the Stale to obey the plain mandate of the Constitution.” Stanfield v. Friddle, 185 Ark. 873, 50 S. W. (2d) 237.
In Nelson v. Walker, 170 Ark. 170, 279 S. W. 11, we said:
“If we should hold otherwise, the obvious purpose of the amendment would be defeated. It would only be necessary to first make the allowances for the expenses covering those things with which a county might dispense to the extent of all the revenue, or so much thereof as was necessary to pay them, and then make allowances to cover the claims where the compensation is definitely fixed by law. It must be quite obvious that, if a county court can make allowances to cover claims which may be paid for by a county, but which are not essential to the operation of the county’s affairs, and, after doing so, may then make other allowances on the theory that indispensable services have not been paid for, the provision of the amendment that the county’s indebtedness shall not be increased would have no binding effect on the county judge who wished to evade it. ’ ’
This amendment has been construed frequently by this court, and most of the cases are cited and the principles discussed in Luter v. Pulaski County Hospital Asso., 182 Ark. 1099, 34 S. W. (2d) 770; McGregor v. Miller, 173 Ark. 459, 293 S. W. 30; Dixie Culvert Mfg. Co. v. Perry County, 174 Ark. 107, 294 S. W. 381; Lybrand v. Wafford, 174 Ark. 298, 296 S. W. 729; Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002; Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d) 554; Miller v. State use Woodruff County, 176 Ark. 889, 1 S. W. (2d) 998; Chestnutt v. Gates, 177 Ark. 894, 9 S. W. (2d) 37; Carter v. Cain, 179 Ark. 79, 14 S. W. (2d) 250.
There are other cases construing amendment No. 10, but we do not deem it necessary to review all these deci sions here. None of the cases in which amendment No. 10 has been construed are in conflict with the principles herein announced.
While it is to be regretted that the situation is such that the appellee cannot collect its just claims, yet the plain provisions of the Constitution compel the conclusions herein reached.
The judgment of the circuit court is reversed, and the cause remanded with directions to enter a judgment disallowing the claims.
McHaney, J., dissents. | [
20,
-20,
-11,
92,
10,
113,
40,
-102,
82,
-125,
118,
83,
-19,
80,
21,
109,
-93,
63,
113,
121,
-57,
-73,
55,
74,
-29,
-77,
75,
-59,
-8,
-51,
-28,
-4,
15,
40,
-118,
-47,
-58,
102,
-51,
-40,
-114,
13,
-119,
-51,
81,
-46,
56,
47,
82,
79,
53,
-106,
-22,
40,
-112,
-21,
-52,
44,
121,
47,
88,
-13,
-102,
5,
-1,
70,
-96,
6,
27,
5,
-56,
58,
-104,
49,
80,
-24,
114,
38,
-122,
117,
7,
-103,
12,
110,
102,
3,
37,
-17,
-24,
-86,
14,
-98,
-97,
-90,
-126,
121,
42,
11,
-98,
29,
84,
-108,
6,
122,
-91,
-107,
93,
46,
3,
-114,
-12,
-95,
15,
108,
-100,
-101,
-29,
-113,
116,
113,
-51,
-78,
120,
-57,
123,
27,
-114,
-110
] |
Bunn, C. J.
This was originally a suit at law for the recovery of the sum of $7000 and interest, from the appellant company by the appellee, on a breach of contract alleged to have been entered into between them on the 8th of September, 1894. The cause was transferred to the equity docket, and on final hearing, upon the pleadings, testimony and ai-gument of counsel, on the 31st day of August, 1898, it being a day of the Fulton circuit court, it was decreed that the plaintiff, the said W. D. Cook, do have and recover of the defendant, the Mammoth Springs Roller Mill Company, the sum of $5923.75,with 6 per cent, per annum interest and his costs. From this decree the defendant duly and in due time appealed to this court.
This litigation grows out of the following state of facts, to-wit: The appellant is a corporation, organized and doing business at Mammoth Springs, Fulton county, and at a special meeting of its board of directors, on the 8th day of September, 1894, a proposition was made in writing to said board by the appellee, W. D. Cook, of which the following is a copy, viz.: “To G. C. Buford, President Mammoth Springs Roller Mill Com pany: Dear Sir — I make the following proposition: First. I will buy $7000 treasury stock of the Mammoth Springs Roller Mill Company at 75 cents on the dollar. I will take chai-ge of the mill at a fixed salary of $2000 per year, this salary to come out of the first earnings of the mill. After this salary is charged to the mill, then a dividend of six per cent, is to be paid out of the net earnings on the entire issue of capital stock outstanding. If the net earnings are sufficient to pay the dividend — leave a surplus above the dividend — then I am to receive an additional amount of $1500; then the remainder of all net earnings is to be declared on all outstanding stock pro rata-, the company aiding me with credits and endorsements to furnish the working capital to ruu the mill. And the company agrees to •take the $7000 stock from W. D. Cook at the market price at the expiration of twelve months, provided his services should not be satisfactory to the company. [Signed] W. D. Cook.”
The meaning of the proposition is: The proponent would engage to manage the operations of the mill of defendant, and at once purchase from it $7000 of its stock at 75 cents on the ■dollar, amounting to $5250. He was to receive $2000 per annum as a fixed salary, and this fixed salary was to be paid out of the first earnings of the mill. This $2000 fixed salary was, then, a preferred claim to all others, and to be paid before a balance was struck upou which a dividend might be declared. After this fixed amount of $2000 should be charged to the milling company, then the net earnings should be ascertained, and a dividend of 6 per cent, should be declared thereon, and paid out on all the outstanding stock. If these net earnings should be sufficient to pay the dividend aforesaid — 6 per cent on the capital stock outstanding — -then out of the same the proponent, as such manager, should be paid for the year an additional $1500. After that the remainder of the net earnings should be divided on all outstanding stock pro rata. The company, by its credit and indorsement, should enable him to procure funds for the running expenses of the mill. At the expiration ■of twelve months, if the services of the proponent should not be satisfactory to the company, the latter should repurchase the $7000 of stock he purchased from it in the outset at the then market price. This proposition was accepted by the board of directors of the milling company then and there, and both, parties at once entered upon the work of carrying it out as a contract between them, the appellee taking charge of the mill as the company’s secretai’y and manager, and drawing his salary from that date according to the terms of the contract, and until 8th September, 1895, amounting to the sum of $3500.
At the regular annual meeting of the board of directors of the milling company held in June, 1895, appellee was elected secretary and manager for the ensuing year, but the amount of salary he was to receive was not then mentioned. On the 8th September, 1895, the first year of the appellee’s employment as secretary and manager expired, he having been in June previously, however, elected for a second year as stated. The appellee continued to act as secretary and manager, not only from his second election to the expiration of his first year, but afterwards, that is, from the 8th of September, 1895, to the 21st of November, 1895, and was paid his salary of $2000 -per annum monthly at the rate of $166.66 until the latter date. At a special meeting of the board of directors, held on the 21st of November, 1895, the appellee tendered his resignation as secretary and manager, which was accepted, as we infer. Appellee still retained his place as stockholder and director attending all the meetings of the board of directors except one held in February, 1896. At the same meeting at which appellee’s resignation as secretary and manager was tendered and accepted as aforesaid, the board of directors by resolution fixed the-salary of appellee at $166.66 per month, to be paid monthly, and it was further provided that in the event the board of' directors sliould become dissatisfied at any time with the services of appellee, each party agreed on a notice of thirty days for terminating the contract. We understand by this that each party might terminate the contract by giving the required notice of thirty days. But appellee seems to contend that the contract could only be terminated by the appellant becoming dissatisfied with his services, and giving him thirty days’ notice. That is the very letter of the contract, it is true, but its spirit was doubtless such that either party could terminate it on the same conditions. However that may be, the appellee accepted and acted upon the new contract, and was paid $166.66 monthly according to the terms thereof until in June following— the time of the regular meeting, when the office of general manager was abolished, and the employment of appellee ended, without any expression of dissatisfaction with his services, except such as may be implied in the desire to avoid the further expense of the office. Due notice of the termination of his employment appears to have been given appellee according to the new contract, before his services were dispensed with, and he then quit the company’s employment accordingly. The arrangement or new contract to pay for services, made on November, 21, 1895, appears to have been a new contract, and seems to have been a substitute^for the old one in some important particulars.
At the close of the first year, no dissatisfaction with the services of the appellee was expressed or shown in any way. On the contrary, he had just before that time been re-elected to his place for another ;year, and had entered upon the performance of his duties for the second year. Apparently, his management had been a success. Under this state of things, the contingency had not happened in which the company was bound to repurchase the stock. It was doubtless thought at that time that the stock was no burden to appellee, as the business had prospered, and he was still occupying his same position. In fact, after the lapse of the first year, with everything satisfactory, that part of the contract relating to the repurchase of the stock was functus officio, according to its very terms.
The contract did not require the company to repurchase the stock,in ease a repurchase should be made,at the same price appellee gave for it — 75 cents on the dollar for the $7000, amounting to the sum of $5250. There is no proof that such was the market value of the stock at the institution of this suit. If the cause was maintainable at all, it was for the then market value, and not for a mere refunding of the amount paid originally by appellee for the stock "with interest, as was fixed in the decree. But it makes no difference, in our view of the case; the proof is not such as to justify a decree of specific performance in any sense, and the decree of the chancellor is therefore reversed, and the complaint is dismissed for want of equity. | [
-10,
122,
-104,
12,
24,
-28,
34,
-102,
105,
-63,
-73,
115,
-5,
86,
8,
1,
-13,
61,
-11,
111,
86,
-93,
19,
79,
-53,
-109,
-39,
-59,
-67,
74,
-12,
87,
77,
32,
-118,
-35,
-62,
-94,
-63,
-100,
78,
4,
59,
-24,
85,
64,
48,
11,
80,
73,
49,
62,
115,
36,
92,
75,
77,
46,
125,
57,
-47,
-7,
-78,
-59,
109,
22,
-128,
6,
-104,
19,
-56,
14,
-104,
49,
14,
-32,
-6,
54,
-122,
-12,
3,
-83,
8,
98,
103,
3,
5,
-91,
28,
-100,
47,
-9,
-99,
-89,
-79,
0,
27,
73,
-66,
-100,
-14,
20,
-121,
126,
-18,
-123,
93,
109,
1,
-34,
-90,
-125,
-113,
-18,
28,
19,
-17,
63,
50,
113,
-49,
-77,
93,
7,
56,
-101,
23,
-71
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.