text:
    Cy Carney Appliance Company, Inc. v. True.
    5-1028
    295 S. W. 2d 768
    Opinion delivered November 12, 1956.
    [Rehearing denied December 17, 1956.]

      Little & Enfield and Pearson & Pearson, for appellant.

      Vol T. Lindsey, for appellee.
   Paul Ward, Associate Justice.

On September 29, 1953 appellees’ dwelling and the contents thereof were destroyed and a number of shade trees were destroyed or damaged by fire. Appellees filed a suit against appellant, the Cy Carney Appliance Co., alleging the fire was caused by the negligence of Virgil Blakely, a company employee, in filling a butane gas ta,nk near their home, causing the alleged destruction and damage in the total amount of $13,394,33. A jury verdict was returned in favor of appellees in the amount sued for, and this appeal follows.

For a reversal, appellant relies on four alleged errors committed by the court during the trial, and also on the ground that the testimony does not show proximate cause of the fire or negligence on the part of appellant or its agent. We will consider these five assignments of errors in the order they are presented to us.

1. Appellees’ testimony shows that part of personal property consisted of certain articles which they had bought for their two minor children, such as a basketball, a baseball, bat, and glove. Mr. True, in speaking about an item of $750 for clothing, dresses, coats, hats, suits, and dress material, stated that some of it belonged to the boys. It is not denied that appellees bought and paid for all such articles.

It is contended by appellant that, since tbe boys were not made parties to tbe suit tbrongb a guardian or next friend (as provided in Ark. Stats. § 27-823) there could be no recovery for tbe articles in question. We do not agree witb this contention. Tbe parents were in fact tbe owners of these articles. They possessed all tbe incidents of ownership — they paid for them, they could have taken them away from tbe boys, and they could have sold them. While our attention has not been called to any decisions of tbis court announcing tbe above view, we do find such decisions from other courts. In Semple School for Girls v. Yielding, 16 Ala. App. 584, 80 So. 158, it was held that articles.given to children by parents for support and maintenance remain tbe parents’ property, though tbe children may have them in possession and may have a special property in them as to all tbe world except tbe parents. In Dickinson v. Winchester, 58 Mass. 114, 50 Am. Dec. 760, it was held that clothing purchased by a father for a minor son belongs to tbe father, and be may recover for its loss, unless it appears to have been absolutely given to the son, or unless the son has been emancipated. In Tiffany on Domestic relations— Sec. 140 page 386, it says that what is given to a child by his parents in the way of support and maintenance, and for the purpose of education, as clothing, school books, etc. belongs to the parent, and he may reclaim it, or recover damages for its injury.

2. While Mr. True was being cross-examined as to the value of his personal property he was asked: “Q. I will ask you whether or not you and your wife assessed that personal property in January, 1953 or immediately subsequent thereto?” His answer was: “Yes, Sir. ’ ’ When he was asked for the amount of the assessment, appellee objected and the court sustained the objection. This is assigned as error.

"While we agree that this elicited information was, under the circumstances, admissible in evidence, yet we think no prejudice or reversible error appears, because appellant did not show what the answer would have been or what the assessment records would reveal. It was so held in Tidwell v. Southern Engine and Boiler Works, 87 Ark. 52, 112 S. W. 152 where the court said: “It is not shown in record what the answers of appellant, as a witness in his own behalf, to the excluded question would have been. Therefore, no prejudice appears in the exclusion.” A similar situation was presented in City of Prescott v. Williamson, 108 Ark. 500, 158 S. W. 770, and was disposed of in these words:

“It is not shown what the answers of any of the witnesses to any of these questions would have been. The appellant nowhere stated what it expected to prove by either of them. Conceding without deciding that the questions were proper, and that the answers thereto would have been competent testimony, we are not able to say that any prejudicial error was committed in refusing to allow the witnesses to answer them since the record does not disclose what their answers would have been. ’ ’

3. Appellant objects to the rule (applied by the trial court) for the measure of damages as pertaining to trees and the house, and to Instruction No. 8.

Trees. The testimony of appellees was that valuable shade trees were destroyed, and that the market value of the farm, after the fire was $1,000 less than it was immediately before the fire because of said loss. The court instructed the jury that this was the proper measure of damages, and the court was correct. It was expressly so held in St. Louis, Iron Mountain and Southern Railway Company v. Ayres, 67 Ark. 371, 55 S. W. 159. At page 374 of the Arkansas Reports, this Court stated:

“As to the measure of damages for the destruction of the trees on the land by reason of the fire, we think the fifth instruction by the court announced the proper measure; that is, that the measure was the difference between the value of the land with the trees unburned and with the trees burned. This means the market value of the land. The trees were a part of the freehold, and could not be replaced in a short time, and only at considerable expense. Coykendall v. Denkee, 13 Hun, 260. Tlie destruction of the trees was a depreciation in the value of the land of which they were part, and it was competent to show by evidence what the land was worth before the destruction of the trees, and what it was worth after they were destroyed; and, this being shown, the quantum of damage was a matter of computation for the jury. 3. Sutherland on Damages, 612; Coykendall v. Denkee, 13 Huh, 260; Railway Co. v. Combs, 51 Ark. 324.”

The same rule, as to the destruction of trees, was announced in Bush, Receiver St. Louis, Iron Mountain and Southern Railway Company v. Taylor, 130 Ark. 522, 197 S. W. 1172; and in the cases cited therein.

House. Appellees offered certain testimony, and apparently would have offered more had appellant not objected, to show the construction, size, condition and value of the house before it was destroyed. Appellant says this testimony was inadmissible, but we do not agree for the reasons set out below.

Instruction No. 8. In paragraph “B” of this instruction the court gave as the measure of damages (for loss of the house) the “cost to restore the dwelling house to its original condition, that is to say the cost of replacement. ’ ’ By ‘ ‘ original condition ’ ’ we take it that the court meant the condition it was in immediately before the fire, and will so consider it since no specific objection is made on that point.

Appellant’s contention is that the instruction is erroneous, and that the true measure of damages is the difference between the market value of the farm (with the house on it) just before the fire and the market value just after the fire, considering loss of house only. We have given careful consideration to appellant’s contention and to many of our decisions relating thereto, and, although there is a lack of a clearly defined distinction regarding the applicable rule in some instances, we cannot say the trial court’s instruction here was wrong. In fact it appears to be the approved rule. The opinion in the Bush case, supra, discusses and defines the difference between the rule for the measure of damages for the loss of trees and for the loss of a house. In substance, this case holds that if the value of the property destroyed depends upon its connection with the soil (as in the case of shade trees for instance) the measure of damages is the difference in the market value of the land before and after destruction, but, if the property destroyed can be replaced in substantially the same condition it was immediately before destruction, (as in the case of a house) then the measure of damages is the cost of replacement.

The Bush opinion was cited and followed in Missouri Pacific Railroad Company v. Wood, 165 Ark. 240, 263 S. W. 964. We think the rule announced in the Bush case is sound, although, as recognized in that opinion, its application may sometimes be difficult. We do not say at this time that the “before and after” rule should never, under any circumstances, apply to the destruction of a house or building, but we do hold it does not apply here under the facts of this case.

4. We do not agree with appellant that appellees’ requested instruction No. 7 is in conflict with his own requested instruction No. 7. To understand appellant’s objection in this matter it is necessary to briefly set forth these undisputed facts: Appellant’s alleged negligence consisted in overfilling the small storage tank; This tank had on it two gauges — one called the “perr centage gauge” primarily to show the owner (True) when it needed filling, and the other was called an “outage gauge” which allowed the fluid to run out of a very small tube when the tank was approximately 85% full, and was to be used by the filler of the tank as a matter of safety, and the percentage gauge was out of order at the time the tank was filled on this occasion.

In appellant’s instruction the court told the jury, appellee had not proven that the failure to repair the percentage gauge was the proximate cause of the fire. Ih appellees ’ instruction the court told the jury, in effect, that it could predicate negligence on appellant’s act in filling the propane gas tank of the plaintiffs ’ too full W,ith liquefied petroleum gas, over and above its normal and safe operating capacity. To this instruction, appel-' lant imposed a general objection. It clearly appears to ns that the two instructions are not conflicting. :

5. Sufficiency of the evidence. Finally it is earnestly and ably contended that the judgment of the trial eourt should be reversed and the cause dismissed because there is no evidence of negligence or proximate cause, but again we cannot agree.

Most of the evidence, except that relating to the cause of the fire, is undisputed.

Appellees lived on a farm in Benton County. Propane gas was used for heating and cooking. The gas was stored in two tanks near the dwelling — one tank had a capacity of 460 gallons and the other 1,000 gallons, each provided with two gauges as before stated. The percentage gauge on the small tank had been out of order for several days or weeks, and Mr. True had made this fact known to Bradley (the agent of appellant) and he said he told Bradley not to put any more gas in the small tank until the percentage gauge had been fixed. On August 28, 1953 (the day before the fire), however, some one (presumably Mrs. True) asked appellant to deliver gas to appellees’ home. The next day about 10:00 A. M. Bradley, unlicensed to handle propane gas but an employee of appellant for 2 or 3 years in different capacities, arrived at appellees’ home, in the absence of Mr. True, with the gas truck. He first put gas in the small tank and then in the large tank — a total of 542 gallons. Mr. True arrived before the large tank had been filled, and by about 11:30 A. M. Bradley had completed the filling operation.

At about 3:15 that afternoon Mrs. True lighted the oven in the kitchen stove and one burner on top, preparatory to baking a cake. Some 30 or 40 minutes later, while Mrs. True was standing in the kitchen door she saw a flame shoot out of the hole where the oven control had been located and from the top burner. Immediately the kitchen was afire and the whole house and contents were destroyed. It is not denied that normally there is only about 7 ounces of pressure in the feeder lines to the stoves and that such pressure was not suffi-oient to cause the flames to shoot out in the manner above mentioned. Although the pressure in the storage tanks may be as great as 150 to 200 pounds, the pressure in the feeder lines ordinarily remains at approximately 7 ounces, because each storage tank is equipped with a regulator which reduces the pressure. There was nothing suggested that could have caused the flames to shoot out as they did here except excess pressure in the feeder lines.

It is the theory of appellees that Bradley must have filled the small tank too full, and that this caused the pressure in the feeder lines, while appellant contends that, because of the regulator, overfilling could not cause extra pressure in the feeder lines. The regulator was removed shortly after the fire, and an examination later by a state inspector showed that it was in no way out of order, and this testimony is not contradicted.

On the other hand, it is the contention of appellees that overfilling the tank with propane gas under pressure (as it is always necessarily done) will cause the fluid or gas to come in contact with the regulator in such a way as to, in turn, cause the regulator to “freeze,” allowing the gas and pressure to extend into the feeder lines. Several experienced propane gas dealers testified to the above effect. This testimony, we think, constitutes substantial evidence to support the jury’s finding.

The testimony on both sides relative to the proper handling of propane gas and as to the efficiency of the regulator to control pressure in the feeder line is voluminous and need not to be set out at length because a short resume will suffice to show that the jury’s verdict is sustained by substantial evidence. For appellant, the Chief Technicians for the Boiler Inspection department of the Labor Department of Arkansas testified at great length as a specialist. The substance of his testimony was that the regulator was (when he examined it) in good condition, and that it would protect the pressure in the feeder lines in all events — even if the storage tank was filled completely. On the other hand it appears un-contradicted that safe practice required that the tank should not be filled to more than about 85% capacity, and further that the purpose of the out gauge was to insure against doing so. On behalf of appellees, the following testimony was introduced: Mr. Chastain, a propane dealer, stated that he examined the small tank after the fire and it was too full, and that when the liquid is too high in the tank it will get into the feeder lines. Mr. Hugh Anderson, experienced in handling propane gas, said a tank could be filled to a point above the out gauge level to where the liquid could pass into the feeder lines, and that if the regulator “freezes” over from whatever cause the liquid and gas will go into the feeder lines and raise the pressure to that of the tank. Mr. Charles Gorum, with eleven years in the propane gas business, testified at great length, corroborating the witnesses previously named. It was up to the jury to believe that overfilling could not possibly cause extra pressure in the feeder lines as indicated by appellant’s expert testimony, or to believe that it could as stated by appellees’ witnesses.

Affirmed.


source: Caselaw Access Project

author: Sam RobiNSON, Associate Justice.

license: Public Domain

text:
    Irby v. Irby.
    5-1036
    295 S. W. 2d 634
    Opinion delivered November 12, 1956.
    [Rehearing denied December 10, 1956.]

      Spencer & Spencer and Wright, Harrison, Lindsey & Upton, for appellant.

      L. B. Smead, Walter L. Brown and Robert G. Compton, for appellee.
   Sam RobiNSON, Associate Justice.

There are two points here. First, there is the question of whether an instrument which appears to be a deed on its face is, in fact, a mortgage. And second, if the instrument is a deed, as it appears to be, has the grantor reacquired the property by adverse possession?

. The appellant, W. W. Irby, and the appellee, F. L. Irby, are brothers. We will hereafter refer to appellant as Walter and to appellee as Frank. They live in Union County. Frank is a doctor and Walter is a small farmer. Walter owned a 220 acre farm on which he cultivated about 67 acres. In 1923, a mortgage on the farm had matured, and the bank was threatening foreclosure. Walter gave to Frank what appears on its face to be a deed. In 1954, Walter filed this suit to quiet title in him, contending that the instrument he executed and delivered to Frank in 1923 is, in fact, a mortgage, and also claiming the property by adverse possession. There was a decree in favor of Frank, and Walter has appealed. There is no serious controversy between the parties as to the law. Both sides recognize that, to prove an instrument which appears on its face to be a deed is, in fact, a mortgage, the evidence must be clear, cogent and convincing. Burns v. Fielder, 197 Ark. 85, 122 S. W. 2d 160. Grimes v. Evans, 225 Ark. 770, 285 S. W. 2d 510.

Walter contends that in 1923, when the debt to the bank in the sum of $2,260.62 became due, the property was worth more than the indebtedness, and that he had made arrangements with another bank to refinance the loan, but that Frank stepped into the picture and agreed that he would advance the money to pay off the bank, and charge no interest; that pursuant to this agreement Frank paid the bank and Walter gave to Frank the instrument which appears to be a deed, but which Walter contends is a mortgage. Walter also maintains that he was to repay Frank on or before some time in 1928, and, as evidence of the agreement that Frank would reconvey the property to Walter upon payment of the debt, Frank executed and delivered a “bond for title,” which provided for a reconveyance of the property when the debt was paid; that later, the bond for title was destroyed when the house burned. Walter further contends that, in any event, since the year 1938 he has held the property by adverse possession and has acquired title in that manner.

Frank contends that in 1923 his father approached him with the proposition of paying the bank and taking up the mortgage to prevent a foreclosure; that the property was not worth more than the amount owed on it; that he refused to go along on that proposition but, later, he did agree to buy the property outright and let Walter and his family continue to live there until such time as Frank might decide to sell the place. He says the instrument in question is what it purports to be — a straight-out warranty deed with no strings attached — and that he executed no bond for title. Frank further says that at no time since he purchased the property has it been called to his attention that Walter claimed to own the place.

The record consists of over 480 pages and it would be impractical here to abstract all of the testimony. Frank and Walter testified, as above indicated. In addition, Walter stoutly maintains that his use of the property has been such as to be wholly inconsistent with anything other than ownership and is, therefore, strong circumstantial evidence corroborating his version of the transaction. His former wife corroborates Mm in saying that Frank executed a bond for title, however, she says that there was no due date of any money owed, whereas Walter says the bond for title provided the debt was to be paid by 1928. In addition, Walter produced evidence to the effect that he has rented some of the land to others. But, it is not uncommon for a tenant to sublet farming land. He produced evidence of the fact that on numerous occasions he sold timber from the land, but Frank testified that on one occasion Walter sold timber from the land in the sum of $1,108 and spent the money; and, since he could not deliver title to the timber, Frank had to go to his rescue and repay the $1,108 to the lumber company. • Walter testified that he executed a lease to Caigo Oil Company and took a draft to pay Frank, but that the deal failed because Frank would not accept the money. But this testimony does not appear to corroborate Walter, for if Frank held only a mortgage Walter could have compelled him to accept the money. The house on the property was destroyed by fire and Walter, with the help of his neighbors, .rebuilt it; but Frank furnished the material. Walter bruit fences and a small barn; he also constructed a water pond, but he used the property for many years without the payment of anything, even the taxes. There is conflict in the testimony as to who paid the taxes on the property for the first two years after the transaction between the parties, but there is no dispute about the fact that subsequent to the two year period Frank paid the taxes; this was for a period of about thirty years. Walter places great emphasis on the fact that in 1926 he executed a right-of-way deed to the Magnolia Pipe Line Company; but it is shown that Frank had no knowledge that such a deed had been executed until 1938, at which time the matter was taken up with Walter and he ■executed a disclaimer, or quittance, of any interest in the property.

Walter testified that in 1928 he had an opportunity to sell the timber for $2,800, which would have enabled .him to pay the alleged mortgage, but that Frank talked him out of making the sale because the timber was worth more. Walter says that on another occasion he had an opportunity to get $26,000 for an oil and gas lease, but that Frank took over the negotiations and agreed that if he failed to consummate the lease he would pay to Walter $1,500. No lease was effected; Frank did not pay $1,500, and Walter took no action. Walter says on another occasion he had a deal whereby he was to get $60,000 for a lease; that the $60,000 was put in escrow but Frank would not sign a quitclaim deed and hence the deal fell through. Again, Walter took no action to compel Frank to accept payment of the alleged mortgage indebtedness. Walter testified that on another occasion he was offered $500 per acre for the land; this would have amounted to $110,000, and Frank offered to sign a deed for $7,500, but when arrangement was made to pay the $7,500, Frank refused it. Walter took no action to compel Frank to accept payment of the alleged debt. Next, Walter says Frank offered to give a deed for the consideration of $1,000 per acre, but when an offer of $1,000 per acre was made — a total of $220,000 — Frank would not go through with the deal; and yet Walter did nothing •to compel the acceptance of payment of the alleged mortgage, or to establish his alleged title until years later, after oil was discovered on the property. During all the time these alleged offers were made, Walter was a poor man in bad financial circumstances. If he testified truthfully about the alleged offers, the fact that he took no action to compel Frank to convey the property is entirely convincing that he knew Frank owned the property and could not be compelled to convey it. On the other hand, if Walter falsified about such alleged offers, his entire testimony is discredited, and it cannot be said he has proved Ms case by clear, cogent and convincing evidence. When Frank received the deed in 1923, he promptly recorded it, and thereafter he was the record owner. He states, however, that no one approached him about a lease until the year 1954, when he executed a lease to the Law-ton Oil Company.

As to the point on adverse possession: Since it is being held that Walter is a grantor in possession, notice of the hostility of Ms claim must have been given to Frank before Walter could prevail on that point. “Where a vendor, after having executed a deed, remains in possession of the premises conveyed, he is presumed to hold in subordination to the title conveyed, unless there is affirmative evidence of a contrary intention; and, where Ms occupancy and nse are not manifestly inconsistent with, the right of Ms grantee, notice of the hostility of his claim must in some way be brought home to Ms grantee before the statute of limitations will begin to run.” Stuttgart v. John, 85 Ark. 520, 109 S. W. 541. “The rule is well established that ‘retention of the possession of vendors after the execution and delivery of a deed is presumed to be in subordination of the title conveyed and the statute of limitations will not begin to run until notice of the hostility of their claim is actually given to the grantee.’ ” Franklin v. Hempstead County Hunting Club, 216 Ark. 927, 228 S. W. 2d 65.

The evidence is convincing that the only notice Frank ever had that Walter might be claiming to be the owner was in 1938. At that time, Frank was having the abstract examined with the view of negotiating an oil and gas lease. The abstract revealed that in 1926 Walter had given a right-of-way deed to the Magnolia Pipe Line Company. Walter was contacted about the matter; he went to the office of Frank’s attorney and executed a disclaimer of any interest in the property. In the face of such circumstances it cannot be said that Walter was holding the property adversely. It does not appear that subsequent to the execution of the disclaimer Frank received any notice of adverse holding on the part of Walter.

Affirmed.

The Chief Justice and Justice Millwee dissent; Justice McFaddiN concurs.


author: Lee Seamster, Chief Justice.

text:
    Shepherd, et ux. v. Adams.
    5-1071
    295 S. W. 2d 356
    Opinion delivered November 19, 1956.

      McMillan & McMillan, for appellant.

      G. W. Lookadoo, for appellee.
   Lee Seamster, Chief Justice.

This is an appeal by appellants from a decree of the Clark Chancery Court. The appellee has filed a motion to dismiss the appeal due to the fact that the record, on appeal, was not filed in the time required by law. The case has been fully briefed on both its merits and on the motion to dismiss.

The decree was rendered on January 18, 1956, and was filed with the Chancery Clerk on January 23, 1956. The notice of appeal was filed by appellants on February 6, 1956.

■ On March 22, 1956, appellants filed a petition with the trial court asking for an extension of time (until August 17, 1956) in which to file and docket the appeal. The court made an order, “That the time for filing and docketing the appeal in this cause be extended until four months from the date of the entry of the judgment or decree, towit: May 17, 1956.” This order was filed with the clerk on March 22, 1956. The appellants filed the record with the clerk of this court on May 28, 1956.

Upon appellants’ petition of June 5, 1956, the trial court granted an Order Nunc-Pro-Tunc for additional time in which to file and docket the appeal. The original order, made on March 22, 1956, specified an extension until four months from the date of the entry of the judg-meat or decree, towit: May 17, 1956. The Order Nunc-Pro-Tunc changed this to read “that the time for filing and docketing the appeal in this cause be extended until four months from the date of the filing of the notice of the appeal, towit: until June 5, 1956.”

This case is governed by the rule handed down in West v. Smith, 224 Ark. 651, 278 S. W. 2d 126 and Southwest Casualty Insurance Company v. Wesson, 226 Ark. 16, 287 S. W. 2d 575.

The substance of the holdings in the above cases, as applied to the facts in the instant case is to the effect that the trial court, on its motion, or on the petition of the party interested, may extend the time for filing the record and docketing the appeal, if its order for extension is made before the expiration of the period for filing and docketing as originally prescribed or extended by a previous order.

The time fixed by the original order in this case had expired before the Nunc-Pro-Tunc Order of June 5, 1956, was granted. To be effective and in order to comply with the above decisions, the June 5, 1956 order should have been issued before May 17, 1956, the last date of the original extension.

The purpose of a Nunc-Pro-Tunc Order is to make the record reflect the transaction which actually occurred and which is not reflected by the record because of inadvertence or mistake. Its province cannot be extended to make the record show what ought to have been done. St. Louis-San Francisco Railroad Company v. Hovley, 196 Ark. 775, 120 S. W. 2d 14, and cases there cited.

A nune-pro-tunc order cannot be used, under the circumstances appearing in this case, to extend the time for perfecting an appeal, if the time limitation has expired as herein stated. In the case of West v. Smith, supra, this Court said:

“The prevailing litigant in any case is entitled to know when the judgment becomes final. If the Trial Court has fixed a time for the filing of the record on appeal and that time has expired then the prevailing litigant should he allowed to presume that the judgment is final in the absence of great unavoidable casualty. If four days after the time has expired the Trial Court can then grant a further extension, then three months after the time has expired the Trial Court can grant an extension; and no judgment would ever he final until seven months from the date of rendition in the Trial Court. That was not the purpose of the law; and in the interest of finality this Court should not exercise its inherent powers except in a most extraordinary situation. ’ ’

The appeal is dismissed.


author: J. Seabork Holt, Associate Justice.

text:
    Terry, Admx. v. Burks.
    5-1077
    295 S. W. 2d 354
    Opinion delivered November 19, 1956.

      J. B. Milham, for appellant.

      Joe W. McCoy, for appellee.
   J. Seabork Holt, Associate Justice.

Appellee, Curtis Burks, brought this action January 11, 1955, praying that a partnership between him and A. 0. Terry (now deceased) be dissolved; that a receiver for the firm’s business be appointed, “for settlement and accounting of firm’s business and for winding up the partnership and for all proper relief.” Appellant filed answer and cross-complaint. Upon a trial the court found: “That prior to the date of his death the deceased partner, A. 0. Terry had withdrawn from the partnership, all of his invested capital and that his net worth in the partnership at that date was a minus $2,561.89. That on the date of his death the said deceased partner, A. 0. Terry, owned no rights in the partnership, bnt in reality the assets were the property of the plaintiff, Curtis Burks. Wherefore, it is ordered, adjudged and decreed that the cross-complaint of the defendant be dismissed, and that the defendant take nothing thereby. That plaintiff is the owner of the assets of said business.” This appeal followed. For reversal appellant, in effect, argues that the findings and decree of the chancellor are against the preponderance of the testimony. We do not agree.

Appellant is the widow of A. 0. Terry who died intestate December 25, 1954, In January 1954 A. 0. Terry became engaged in the feed and fertilizer business in Malvern, and after operating the business until March 16, 1954, he sold a one-half interest to appellee Burks — on an estimated inventory of $4,300 clear of all debts — for a cash consideration of $4,300, thus, was formed a partnership in which each partner owned a one-half interest. Thereafter Terry operated the business until his death and appellant was appointed administratrix of his estate. Burks, as the surviving partner, continued operation of the business until January 1955 when, on his petition, he was appointed receiver of the partnership assets by the Hot Spring Chancery Court and proceeded to wind up the business. On November 10, 1955, appellant was by court order permitted, on her petition, to take her husband’s (A. 0. Terry) interest in the partnership assets. She took over this interest on December 27, 1954, on this latter date, December 27, 1954, merchandise, cash and assets of the partnership inventoried $24,485.54 and the liabilities approximated $17,-331.24, leaving assets of about $6,423.74. By this original audit and inventory, from the facts and records available at that time, the interest of Burks in the partnership appeared to be $2,713.87 and that of A. 0. Terry $713.61. It later developed, however, from the testimony of witnesses at the trial that there were a large number of undisclosed outstanding debts and claims against the partnership not shown in the first audit and a second or amended audit was made which we think, by a preponderance of the testimony, supports the chancellor’s findings that appellant had no interest left in the partnership and was in fact indebted to it. We do not attempt to detail, or set out, the various claims established by the testimony against the partnership. As indicated, following the testimony at the trial, an amended audit was prepared by Mr. Baldridge, an accountant, and quoting from his testimony: “Q. According to your amended audit, what would be Mr. Terry’s worth in the partnership ? A. He would have nothing if the audit was submitted to the partnership. He owes the partnership $2,561.89. Q. When did you make this audit? A. The original audit was begun on the 27 December, 1954. We made the corrected audit today. We showed an analysis of the partnership in the original audit. Q. Do you also show analysis of the partnership in the amended audit? A. In the supplemental audit, we take the balance showing the partnership net worth in which it shows Curtis Burks $2,713.87 and A. O. Terry $713.61 and by introducing this supplemental audit we take 50% of the $745.-32 and the additional liabilities and make a reduction of each of $2,272.71 and in addition to the groceries and gas bills paid for A. 0. Terry leaving $1,014.27 and we add back to the 50% of the over stated charge of taxes of $11.47 to Mr. Burks and $11.48 to Mr. Terry’s account, leaving the partnership net worth as of December 27 of $452.63 to Curtis Burks and A. O. Terry deficiency of $2,561.89. Q. The records of the company as of December 27 with correction show that as the worth of the two respective partners as of December 27, 1954? A. That is correct.” There was testimony of other witnesses tending to corroborate Mr. Baldridge.

Having concluded that the findings and decree of the chancellor are not against the preponderance of the testimony, the decree must be and is affirmed.


author: J. Seaboen Holt, Associate Justice.

text:
    Canadian Mining Company v. Creekmore, et al.
    5-1053
    295 S. W. 2d 357
    Opinion delivered November 19, 1956.

      Bethel & Pearce and Lawson Gloninger, Ft. Smith, for appellant.

      Kay Wilson, Jr., and Hill, Pitshugh & Brissolara, for appellee.
   J. Seaboen Holt, Associate Justice.

Appellees, L. B. Creekmore and wife and Claude J. Pierce and wife, filed separate actions against appellant mining company on separate lease contracts on their respective interest in a fifty acre tract of land in Oklahoma.. The interest of the Creekmore’s was a one-eighth interest and that of the Pierce’s a one-sixteenth interest. The Creekmores sought to recover $637, plus $1 a day from November 4, 1955 until judgment, alleged to be due under the terms of the lease contract and the Pierces sought a similar amount under their lease. The trial court consolidated the two suits and by agreement a jury was waived and trial had before the court which resulted in judgments, for appellees for the amounts prayed. There was no testimony introduced at the trial. There were before the court only the pleadings, the lease contracts as exhibits thereto, and concessions of the parties made at a pre-trial conference. The lease contracts involved are identical in material parts. Material provisions were: “1. This lease (Creekmore’s) shall be in full force and effect for a term and period of five years from and after the date hereof, and as much longer as coal may be profitably produced, unless terminated sooner under its provisions. 2. Lessee agrees to commence operations on said land within one year from the date hereof, or, in lieu thereof, to pay to lessor annually, on or before the 18 day of August 1954, this operation shall terminate as to both parties unless the lessee on or before that date shall pay or tender to the lessor, . . . the sum of $5.00 per acre or $50.00 ($25.00 in the Pierce’s lease) which shall operate as a rental and cover the privilege of deferring the commencement operations for twelve months from said date. In like manner and upon like payment or tenders the commencement of operations may be further deferred for like period of the same number of months successively. And it is understood and agreed that the- consideration first recited herein, the down payment, covers not only the privileges granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid, and any and all other rights conferred. 3. Lessee agrees to pay to the lessors upon all coal mined, removed and sold from these premises a royalty of twenty-five cents per ton of 2,000 pounds, . . . provided that minimum royalties which may have been advanced at the rates per acre herein set forth shall be credited on royalty due for coal mined and sold . . . 5 ... it shall be within the discretion of lessee to determine the rate and extent of production, inasmuch as such operation shall include other lands adjacent to or nearby, and it is agreed hereby that lessee shall not be obligated to maintain any minimum production requirements, or operate continuously once operations are commenced so long as the advance royalty payments set forth in Clause 2, above, are made ... 8. In case lessee discontinues operations on the lands under this lease for a period in excess of 60 days consecutively at any one time then said lessee is to pay said lessor L. B. Creekmore.. $1.00 per day for each and every day in excess of 60 days that operation on said lands are discontinued. Said charges are to cease whenever operations are resumed. 9. The right is hereby conferred upon lessee to cancel this lease upon thirty (30) days’ written notice when the operation of removal of coal therefrom shall in his judgment become unprofitable and lessee shall be the sole judge as to when same is unprofitable.”

For reversal appellant relies on these points: “1. The lessee was excused by payment of advance rentals under Paragraphs 2 and 5 of the lease from continuous operations. 2. Paragraph 8 of the lease provides for a penalty and is void and unenforceable. 3. Plaintiffs cannot recover because no actual damages were alleged.5 ’

The leases here were executed in Oklahoma, therefore, the laws of that state govern their construction. It is undisputed that appellant ceased mining operations on the property involved on December 7, 1953 and thereafter on December 1, 1955, gave notice to appellees canceling both leases. When the separate paragraphs of these lease contracts are considered together, as we must, we have concluded that there are no conflicts in any of their provisions and that they are clear and unambiguous. The primary and decisive question presented is whether Paragraph 8, when considered along with Paragraphs 2 and 5, imposes a penalty against appellant and therefore is void and unenforceable under the Oklahoma laws, or does it provide for liquidated damages or additional rental, which would make it valid, as ap-pellees argue. The laws of Oklahoma provide: ‘ ‘ Title 15, Sec. 213. Penalties Void. Penalties imposed by contract for any nonperformance thereof, are void. But this Section does not render void such bonds or obligations, penal in form, as have heretofore been commonly used; it merely rejects and voids the penal clauses. R. L. 1910, Section 974.

“Title 15, Sec. 214. Attempt to fix damages void except as provided. Every contract, by which the amount of damages to he paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation' thereof, is to that extent void, except as expressly provided by the next section. R. L. 1910, Section 975.
“Title 15, See. 215. Amount presumed to be damages, provision for. A stipulation or condition in a contract, providing for the payment of an amount which shall be presumed to be the amount of damage sustained by a breach of such contract, shall be held valid, when from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage. R. L. 1910, Section 976.”

We hold that the burden was on appellant to show that a penalty was imposed on it by Paragraph 8 above when considered with Paragraphs 2 and 5, and that the $1 per day required to be paid by appellant to appellees for each day in excess of any sixty day period that operations on the land were discontinued was not intended to be and did not amount to liquidated damages or additional rental. We hold that appellant has not met this burden. As indicated, appellant was content to offer no evidence at all on this issue, or in the case. Only a question of law was presented for the court to. be determined from the language and subject matter of these lease contracts and the intent of the parties.

Under Paragraph 2, if Paragraph 8 is ignored or unenforceable, then appellant had the right to dig a small amount of coal (or any amount) and thereby tie up the property involved for a period of five years by paying only the rental of $50 per year on the Creekmore lease and $25 per year on the Pierce lease. The trial court might well have found, and evidently did find in effect, that the $1 per day required under Paragraph 8 was no more than at least a part of the royalties to be paid to appellees for each ton of coal mined under Paragraph. 3 by appellant, and which appellees would have received had the mine on the leases been operated, and that this $1 per day bore a fair relation to the damages contemplated for all idle days in excess of 60 when the mine did not operate, and was either liquidated damages actually sustained or rental on the land. Courts abhor penalties.

The Supreme Court of Oklahoma in Southern Motor Supply Co. v. Shelburne Motor Co., 172 Okla. 495, 46 Pac. 2d 562, reaffirmed its holding in McAlester v. Williams, 77 Okla. 65, 186 Pac. 461, wherein it construed the above sections of the Oklahoma statutes and used this language: ‘ ‘ The question whether the amount stipulated to be paid upon failure of performance is to be treated as liquidated damages or as a penalty is, in its last analysis, still a question of law for the court, to be determined from the language and subject-matter of the contract, the evident intent of the parties, and all the facts and circumstances under which the contract was made. It would serve no useful purpose to review the numerous decisions of this court relating to this proposition, for, as hereinabove suggested, each case is determinable by the facts involved. The more recent trend of the decisions, however, is well stated in the case of Larabee Flour Mills Co. v. Carignano (C. C. A.) 49 F. 2d 151, 154: ‘Furthermore, there is a distinct trend toward a relaxation of the rules as to liquidated damages. Courts have always abhorred penalties, and have looked closely to see that penalties were not masquerading as liquidated damages. And if the stipulation is in fact a penalty — if it bears no fair relation to the damage contemplated — it will not be enforced, no matter what it may be called. And if there is available an accurate and readily ascertainable method of fixing the damages, courts will assess the damages accordingly. In the complexities of modern business, breaches of contract involve more incidental but real damage than when business was less complicated; in later years, businessmen and associations of businessmen have been more desirous of contracting as to damage, in order that their liability may be a known rather than unknown quantity. Responding to these changing conditions in the business world, the courts have been much less reluctant than formerly to enforce provisions for liquidated damage.’ ”

In its earlier opinion above referred to, 186 Pac. 461, the court had this to say in construing these same sections of the Oklahoma statutes: “Where the amount of the damages for the breach of a contract is uncertain and difficult of ascertainment, and the agreement discloses the intention of the parties to fix a sum certain as the liquidated damages, the contract will be enforced. The same rule is stated another way by the Circuit Court of Appeals of the Eighth Circuit in Pressed Steel Car Co. v. Eastern Ry. Co. of Minnesota, 121 Fed. 609, 57 C. C. A. 635, as follows: ‘When it is certain that some damages will result from delay in the performance of a contract, when those damages are incapable of exact ascertainment, or are based upon matters that are to a considerable degree uncertain, and when the amount stipulated is not, on the face of the agreement, out of all proportion to the probable loss, a contract to pay a sum certain for each day, week, or other definite period of delay beyond the time fixed by the contract for its fulfillment is a valid and enforceable agreement for the measurement of the damages, and is not a contract for a penalty.’ ”

We conclude, therefore, that the judgment of the trial court is correct and should be, and is, affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Christenson, et al. v. Felton, et al.
    5-1119
    295 S. W. 2d 361
    Opinion delivered November 19, 1956.

      R. D. Smith, Jr., for appellant.

      Ronald A. May, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal necessitates a study of the school laws of Arkansas in regard to the place of voting in school elections.

At the regular school election in March, 1956, in the Marianna School District, the vote was certified as 441 votes for the tax and 428 votes against the tax. In due time, appellants filed action in the Circuit Court (under Act 403 of 1951) to contest the election; and alleged that many votes for the tax were void. The Circuit Court decided the case on the merits and found that there were 428 valid votes for the tax and 419 valid votes against the tax. The Circuit Court refused to void fifteen votes (for the tax) claimed by appellants to be illegal on the ground that in each instance the voter had failed to vote in his own ward or precinct. So the only question on this appeal is whether the Circuit Court was correct in holding that the said fifteen votes were valid. The Trial Court recognized that, as a legal proposition, a voter must vote in the ward or precinct in which he resides (see Wilson v. Luck, 203 Ark. 377, 156 S. W. 2d 795; and Logan v. Moody, 219 Ark. 697, 244 S. W. 2d 499); but the Court said at the beginning of the hearing: “. . . unless the definite precincts were laid off for the purpose of the election, anybody in the School District could vote in any box in the District.” Under the facts — or lack of facts — shown in the record in this case, we find the Trial Court’s ruling to have been correct as regards the election here involved.

We have several Legislative enactments, that bear on the question here posed:

(a) Section 2 of Act 319 of 1937 (now found in § 80-304 Ark. Stats.) says: . . and each school district, for the purpose of school elections only, shall be a political township. ’ ’

(b) Act 56 of 1949 placed the holding of school elections under the control of the County Board of Election Commissioners, and said: . . the general election laws, insofar as applicable, shall apply to school elections.”

(c) Act 403 of 1951 says that the County Board of Election Commissioners “. . . shall designate all the polling places for each school district in its respective county . . ,”

Thus, under the 1951 Act, the Lee County Board of Election Commissioners should have designated the voting precincts for the Marianna School District. The voting precincts as used in other elections would not necessarily be the voting precincts in the school election. This is demonstrated by the map introduced in evidence. It shows that this school district embraces only a small fraction of the territory in each of Fleanor, Hampton, Union and Spring Creek Townships, which are townships set np by the County Court for general election purposes. For aught that appears in the record in this case — in fact, a study of the map inclines us to believe ■ — • the voting place for the general election in each of these named townships would be located entirely outside of the boundaries of the Marianna School District. In view of such a situation, the Act 403 of 1951 placed the duty on the County Board of Election Commissioners to designate the polling places for each school district, thereby recognizing that the polling places in school district elections would not necessarily be the same as in other general elections.

The Marianna School District is a “political township” and the conduct of elections in such township is governed by the general election law. Under Act 403 of 1951 it became — and still is — the duty of the County Board of Election Commissioners to lay out and designate the voting precincts in the Marianna School District. Section 3-801 Ark. Stats., relating to the establishment and authorization of precinct boundaries in general elections, is the governing law.

So much for the duty of the Lee County Board of Election Commissioners. Was that duty fulfilled? As to the answer to that question, there is complete silence in the record before us. That there were several voting boxes in the Marianna School District at the time of this election is shown; but it is not shown that any of these boxes had been set up along precinct lines, as heretofore indicated. In the absence of such showing, how can we say that any voter voted in the wrong precinct? We cannot. The record before us presents this dilemma:

If the Lee County Board of Election Commissioners duly designated voting precincts in the Marianna School District, the record here Mils to show it; and so there is no showing that any of the challenged voters voted in the wrong precinct.

If the Lee Connty Board of Election Commissioners did not designate voting precincts in the Marianna School District, then such requirement — mandatory before the election — becomes directory after the election, so that voters otherwise qualified will not be disfranchised by the failure of the Election Commissioners to perform certain duties.

On either horn of the dilemma, the Circuit Court judgment must be affirmed.

       The full name of this School District is “Marianna School District A”. For convenience we refer to it as the Marianna District.

       Appellants argue that this section of the law was impliedly repealed by acts which changed the town meeting form of elections to ballot elections; and appellants also argue that Act 56 of 1949 operated to repeal this quoted section. But any such changes did not change the nature of a school district. The word “township” has two meanings: (a) in land descriptions it is an area, as for instance, “Section-Township-Range”; (b) in governmental matters a township is a po-' litical subdivision; for instance, § 18-101 Ark. Stats, gives the County Court power to change township lines. School Districts are creatures of the Legislature, which has the right to give or take away powers. (See State, ex rel. Atty. Gen. v. State Board of Education, 195 Ark. 222, 112 S. W. 2d 18; Sugar Grove School Dist. v. Booneville Special School Dist., 208 Ark. 722, 187 S. W. 2d 339; and Wallace School Dist. v. County Board of Education, 214 Ark. 436, 216 S. W. 2d 790.) So a school district, as a governmental subdivision, would be in the nature of a political township, even in the absence of a Legislative declaration. The. subsequent legislation — herein mentioned — prescribing elections, etc. impliedly recognizes a school district as a political township.

       The Marianna School District here involved is in no county except Lee.

       The Legislature has prescribed methods by which the boundaries of school districts may be changed.

       There are many election laws that are mandatory before the election and merely directory after the election, so that voters will not be disfranchised by the failure of election officials to perform certain duties. Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257; and Orr v. Carpenter, 222 Ark. 716, 262 S. W. 2d 280; and see also 18 Am. Jur. p. 263.


author: MiNoe W. Mill wee, Associate Justice.

text:
    Carter v. Montgomery, et al.
    5-1079
    296 S. W. 2d 442
    Opinion delivered November 19, 1956.
    [Rehearing denied January 7, 1957.]

      'Mann & McCulloch, for appellant.

      Jack P. West, for appellee.
   MiNoe W. Mill wee, Associate Justice.

This action arose out of a collision between a bicycle being ridden by a 13-year old boy and an automobile driven by another boy of the same age on the streets of Forrest City, Arkansas on the night of October 31, 1955.

According to the proof Wiley Montgomery owned a 1929 Model Ford automobile his father had purchased for him. On the night in question he was accompanied by two other young boys in driving the car South on Division street while David Carter was riding his bicycle North on said street as the two vehicles approached the intersection of Division and Mississippi streets. The Montgomery boy was driving at a moderate rate of speed and upon reaching the intersection made a normal left turn off Division street into Mississippi street. As the car entered Mississippi street and had “about straightened up” the bicycle ridden by young Carter collided with the rear end or right rear side of the car knocking Carter and his bicycle several feet into Mississippi street. The Montgomery boy did not see the bicycle before the collision but a companion did and after some discussion as to just what had struck the car they returned to the scene of the accident after having driven several blocks down Mississippi street. David Carter could not remember anything that happened from the time he left a school house several minutes before the collision until sometime after the accident. The car was equipped with a horn, adequate brakes and headlights that were burning but there was no headlight on the bicycle. .

In the action brought by appellant, Jack Carter, individually and as next friend of his son, David Carter, against appellees, Wiley and James Montgomery, for personal injuries allegedly suffered by David Carter as a result of tbe collision, tbe trial court submitted special interrogatories to tbe jury pursuant to tbe Comparative Negligence Law (Act 191 of 1955). In response thereto, tbe jury found that tbe collision occurred without any negligence on tbe part of tbe appellees* Wiley Montgomery and James Montgomery, bis father.

Tbe principal contentions for reversal relate to tbe trial court’s refusal to give Instructions Nos. 1 and 5 requested by appellants which read as follows:

“No. 1. You are instructed that, according to the uncontradicted evidence in this case, tbe defendant, Wiley Montgomery, was under tbe age of 14 years; and you are further instructed that under tbe laws of Arkansas, when a parent permits bis child to drive a motor vehicle when that child is under the age of 14 years, tbe parent is guilty of negligence per se — that is, tbe parent becomes negligent by tbe mere fact of tbe act of permitting tbe under-age child to drive the vehicle.
“No. 5. Tbe plaintiffs request tbe Court to instruct tbe jury that if they find from tbe evidence that tbe defendant Wiley Montgomery, was under tbe age of fourteen years at the time this collision took place, and if they find that the defendant, Wiley Montgomery, was driving tbe motor vehicle involved, in violation of Section 75-309 of tbe Arkansas Statutes, then such finding should be treated by them as negligence per se on tbe part of tbe defendant, Wiley Montgomery.”

In refusing tbe two requested instructions tbe trial court instructed the jury on bis own motion as follows:

“Section 75-309 of tbe Statutes of Arkansas is as follows: ‘Persons not to be licensed. Tbe department shall not issue any license hereunder: 1. To any person, as an operator, who is under tbe age of 16 years, except that tbe department may issue a restricted license as hereinafter provided to any person who is at least 14 years of age.’
“In view of that statute and in view of tbe fact that it is undisputed in tbe evidence in the record in this case that the defendant, Wiley Montgomery, is under the age of 14 years and is the son of James Montgomery, and the further fact that it is undisputed in this record that James Montgomery, permitted the defendant, Wiley Montgomery, to drive the vehicle that night, any negligence you find on the part of the defendant Wiley Montgomery, will he imputed to the father, James Montgomery, under the law, and James Montgomery will he liable for any negligence and damages caused hy his son, Wiley Montgomery.”

As we understand appellants’ contention it is that James Montgomery was not only guilty of negligence per se in permitting his hoy to operate the car in violation of the statute, but was thereby rendered absolutely liable for any damages suffered by appellants irrespective of whether such negligence was the proximate cause, or one of the proximate causes, of the injury. In this connection it is further argued that if the parent is liable per se then the same liability should be imposed upon the child himself. Appellants rely on the recent case of Richardson v. Donaldson, 220 Ark. 173, 246 S. W. 2d 551, where we held that the parent of a child 16 years of age would not be liable for the child’s negligence merely because he entrusted her with the ear. In reaching that conclusion we discussed Hoke v. Atlantic Greyhound Corp., 226 N. C. 692, 40 S. E. 2d 345, in which the court held a violation of a statute similar to Ark. Stats., Sec. 75-309, constituted negligence per se on the part of the parent. We then said in the Donaldson case: “In the case at bar, if Eloise Richardson had been under fourteen years of age (the prohibited age in this State), then her father, in allowing her to drive his truck, would have been guilty of negligence per se . . .” While this statement was dictum in that case, we adhere to it.

It follows that James Montgomery was guilty of negligence per se in the instant case and appellants’ Requested Instruction No. 1 was correct as an abstract statement of the law and as far as it went. But the instruction, and others requested by appellants, ignored the question of proximate causation. Excellent articles relating to this question appear in 1 Ark. Law Rev. 275 and 4 Ark. Law Rev. 192. As the author points ont in the article last cited, the North Carolina court did hold in the Hoke case that a violation of the statute was negligence per se hut it further held that to be actionable such negligence must be the proximate cause, or a proximate cause, of the injury. This is also the view taken in most jurisdictions under similar statutes where the question has arisen. Gossett v. Van Egmond, 176 Ore. 134, 155 P. 2d 304; Somerville. v. Keeler, 165 Miss. 244, 145 So. 721; Laubach v. Colley, 283 Pa. 366, 129 Atl. 88, Wery v. Seff, 136 Ohio St. 307, 25 N. E. 2d 692; White v. Kline, 119 Wash. 45, 204 P. 796; Reid v. Boward, 181 Va. 718, 26 S. E. 2d 27; Wilcox v. Wunderlich, 73 Utah 1, 272 P. 207.

The principle recognized in these cases was involved in Mo. Pac. Rd. Co. v. Davis, 208 Ark. 86, 186 S. W. 2d 20, where we approved this statement from 38 Am. Jur., Negligence, Sec. 166; “Regardless of whether the violation of a statute or ordinance is regarded as negligence, negligence per se, or evidence of negligence, the plaintiff, to be entitled to recover, must show a causal connection between the injury received and the violation of the statutory prohibition or mandate. In other words, he must show that the violation of the statute was the proximate cause of the injury. If the violation of the statute or ordinance by the defendant was not the direct and proximate cause of the accident, he is not liable for the injury of which complaint is made.” See also, 5 Am. Jur., Automobiles, Sec. 361; 60 C. J. S., Motor Vehicles, Sec. 431c; Restatement, Torts, Sec. 431.

It is true that this court adopted a different approach to the problem in damage suits by minors employed in violation of the Child Labor Act (Ark. Stats. 81-701) for injuries suffered in the course of such employment. In Terry Dairy Co. v. Nalley, 146 Ark. 448, 225 S. W. 887, the court decided that the statute itself supplied the proximate cause, saying: ‘ ‘ The employment of a minor in violation of the statute being negligence per se and the injury being caused by reason of the employment, such negligence is the proximate cause of the injury.” As- the author of the first law review article cited above indicates, the effect of this holding is to remove such actions from the negligence field and place them in the absolute liability category. We are unwilling to extend that rule by applying it here. Suppose a drunken or reckless operator of one car negligently crashed into another being operated by an under-age driver in a careful and lawful manner, it would be manifestly unfair to hold the child’s parent liable for damages sustained by the reckless operator. The evidence here fully sustains the jury’s finding that Wiley Montgomery was free from negligence and no prejudicial error resulted in the trial court’s refusal to give instructions that" merely told the jury a violation of the statute constituted negligence per se without further requiring that such negligence be found to be the proximate cause of the injury or a substantial factor in bringing it about. The giving of Instructions 1 and 5 as requested by appellants would have confused issues that were properly submitted in the instructions given.

Appellants also say the court erred in refusing to give Paragraphs “G” and “H” of their Eequested Instruction No. 3. Paragraph “G” set out Ark. Stats. Sec. 75-725 which requires that motor vehicles be equipped with a certain kind of horn in good working order and that the driver use it when reasonably necessary to insure safe operation. We find no prejudicial error in refusing this request since the car was equipped with a proper horn according to the testimony of the appellants’ own witnesses and it is undisputed that young Montgomery had already made a normal turn into Mississippi street when the unlighted bicycle struck the rear of the car. Evidence is also lacking to show there was anything in the situation apparent to young Montgomery to warn him of such impending danger as to require the sounding of his horn as he approached the intersection.

Paragraph “H” set out Ark. Stats., Sec. 75-901 (a) which requires the driver of a car involved in an accident resulting in injury or death to stop and remain until he has “fulfilled the requirements of Sec. 75-903.” According to the proof Wiley Montgomery stopped and returned to the scene as soon as he realized what had happened and there is no showing that he failed to satisfy the requirements of Sec. 75-903. Moreover, a refusal to instruct on the statute does not amount to prejudicial error where the failure to comply with it bears no proximate relation to the cause of the collision. Schlosberg v. Doup, 187 Ark. 931, 63 S. W. 2d 337.

We find no prejudicial error, and the judgment is affirmed.


author: G-eoege Rose Smith, J.

text:
    Ark. State Racing Comm. v. Southland Racing Corporation.
    5-1066
    295 S. W. 2d 617
    Opinion delivered November 19, 1956.

      Wood & Smith, Little Rock, for appellant.

      Goldstein & Smith, and Barrett, Wheatley, Smith & Deacon, for appellee.

      W. H. Dillahunty, amicus curiae.

   G-eoege Rose Smith, J.

This is a suit by Southland Racing Corporation for a mandatory injunction to require the Arkansas State Racing Commission to issue to Southland a license for the operation of a greyhound race track in Crittenden county. The chancellor overruled the Commission’s demurrer to the complaint and, upon the Commission’s refusal to plead further, entered a decree for the plaintiff. Three issues of law are presented by the appeal.

First, it is contended that the Crittenden chancery court had no jurisdiction of the case, for the reason that the venue in actions against State boards must be laid in Pulaski county. Ark. Stats. 1947, § 27-603. Despite the settled rule that an objection to venue is waived by a defendant who enters his appearance by the filing of a demurrer, the appellant insists that a different rulé for State officers was announced in Arkansas Highway Com’n v. Holt, 190 Ark. 868, 81 S. W. 2d 929.

We are unable to agree with this contention. The Holt case was decided in the interval during which it was held that the legislature could constitutionally consent to suits against the State Highway Commission — a view later rejected in Arkansas State Highway Com’n v. Nelson Bros., 191 Ark. 629, 87 S. W. 2d 394. The Holt case did not involve, as this one does, the general statute fixing the venue of suits against public officers. There the court considered only an act applying specially to suits against the Highway Commission. Ark. Stats., § 76-232. By that act the legislature gave its consent to such suits but declared that they “shall be brought only at the seat of government, in Pulaski County.” We held that the statute was a limitation upon jurisdiction and could not be enlarged by an entry of appearance on behalf of the Highway Commission.

The case at bar is not a suit against the State itself, which at the time of the Holt decision could be maintained only with the express consent of the legislature. Here Southland simply seeks a mandatory injunction to compel the performance of a ministerial duty — a common law cause of action that exists in the absence of statute. The statute providing that suits against State officers and boards must be brought in Pulaski county relates only to venue, not jurisdiction, and falls within the general rule that the issue of improper venue may be waived. In jurisdictions having similar laws it is held that the statutory venue is a personal privilege for the benefit of the public officer and may be waived by him. Tullis v. Brawley, 3 Minn. 277; Howland v. Willetts, 5 Sandf. 219, aff’d 9 N. Y. 170; McConihe v. Palmer, 76 Hun 116, 27 N. Y. S. 832. This rule is manifestly sound, for situations might often arise in which both parties would prefer, for reasons of convenience, to have the case tried in the county where the cause of action arose. We therefore hold that the question of venue is not a jurisdictional issue that can be asserted after the entry of the Commission’s appearance.

Second, on the merits the principal issue is whether the Racing Commission has been invested with unlimited discretion to deny an application for a license when the applicant has met all the requirements exacted by the legislature. The governing statute reads as follows: “Any person, firm, association, or corporation, desiring to apply for a permit under this act must make known to the Commission the name of the person, firm, association, or corporation, and if a corporation, the State under which incorporated, the location where it is desired to conduct or hold a greyhound race meeting, and such other information as the Commission may require; also that they have a plant which is completed and ready for operation, and it will then be the duty of the Commission to inspect said plant at the expense of the applicant, and if the plant is found to be in good condition and completed, the Commission may grant the license provided the officers and directors are reputable citizens of the State of Arkansas and have filed the necessary bond as required in this act.” Ark. Stats., § 84-2805.

The complaint alleges that Southland has complied with the statute in every particular, in that it has completed a plant at a cost of about one million dollars, that the Commission has inspected the plant and made no objection to it, that Southland has tendered the required bond, and that its officers and directors are reputable citizens of the State. The complaint avers, and the demurrer concedes, that in spite of Southland’s strict compliance with the law the Commission has denied the application upon the ground “that the granting of a permit would not serve the best interests of the State of Arkansas.”

The controversy centers upon the statutory provision that the Commission may grant the license: is the word “may” used in its permissive or in its mandatory sense? It is of course a familiar rule of statutory construction that “may” is to be construed as “shall” when the context of the statute so requires. Washington County v. Davis, 162 Ark. 335, 258 S. W. 324; Viking Freight Co. v. Keck, 202 Ark. 656, 153 S. W. 2d 163, 167. Indeed, this interpretation is so well known that it is uniformly recognized in dictionary definitions of “may.” See Webster’s New International Dictionary (2d Ed.); Funk & Wagnalls New Standard Dictionary (1949).

It goes without saying that in every instance the problem is that of ascertaining the legislative intent. In contending that the present statute evinces an intention to leave the matter wholly to the Commission’s discretion the appellant stresses the use of the word “may” and relies strongly upon our decision in Cook v. Glazer’s Wholesale Drug Co. of Ark., 209 Ark. 189, 189 S. W. 2d 897. It is apparent, however, that the mere use of the word “may” cannot be conclusive, for then the term could never be construed as being mandatory. Nor is the Cook case parallel to this one. There the statute (Ark. Stats., § 48-301) was explicit in stating that the Commissioner of Revenues “is further given the discretion to determine the number of permits to be granted . .... and the person or persons to whom they shall be issued.” The issue in that case was the extent to which the courts might reviéw the exercise of a discretion admittedly conferred by the statute. Here the question is whether discretionary power exists at all.

In the present case there are several reasons for concluding that the General Assembly meant its language to be mandatory. To begin with, the same section which provides that the Commission may grant the permit also provides that an appeal from the Commission’s ruling may be taken to the chancery court. It is unnecessary to decide whether equity can constitutionally be vested with this power of review; the point is that the legislature meant to allow a right of appeal. Yet the appeal would necessarily be futile if the decision rested within the unfettered discretion of the Commission; there could be no issue for the chancery court to review. As the court said in State ex rel. Brockett v. City of Alliance, 65 Neb. 524, 91 N. W. 387, with respect to a similar provision in a liquor licensing law: “It would seem to be a vain and useless thing for the legislature to provide for an appeal from the action of the licensing board to the district court, and there have the case heard on appeal, and a proper judgment entered, if the discretion of the licensing body was unlimited, and to be exercised arbitrarily according to the uncontrolled will of that body.”

Again, the act requires that the applicant must have completed the construction of its plant before the request for a license is submitted. It is hard to believe that the legislature meant for an applicant’s necessarily substantial investment to depend ultimately upon the whim of the Commission. Such a law would be fairly certain to defeat its own purpose. A like situation was considered in McLeod v. Scott, 21 Ore. 94, 26 P. 1061, where every applicant for a liquor license was required to submit a majority petition of the legal voters in the precinct and to publish notice of the application. The statute recited that the county court then “may” grant the license. In holding the word to have been used in its mandatory • sense the court said: “The petitioner must incur a considerable expense in securing the majority of the legal voters of the precinct, and in the publication of his petition and notice as prescribed by the act. These requirements of the statute are of substance, and evince an intention on the part of the legislature that upon compliance with the terms of the act a license would issue.”

Finally, by the statute the legislature has made the operation of a greyhound race track a lawful undertaking. Needless to say, the power to determine the state’s policy in this matter rests with the legislature alone. Yet if the Commission is authorized to refuse a permit in the belief that its issuance would not serve the best interests of the state, it is evident that the Commission is free to nullify the policy that the General Assembly sought to put into effect. This identical issue has been presented in Arizona, where a dog racing act provides that if the Tax Commission finds after investigation that the applicant’s reputation is good and that the plan submitted is not objectionable, the Commission “may” grant the application. An application complying in every way with the statute was rejected by the Commission, which found that “it was not for the best interests of the public at this time.” The Supreme Court of Arizona held the statute to be mandatory and directed that the license be issued. Brooke v. Moore, 60 Ariz. 551, 142 P. 2d 211.

Thus there are persuasive reasons for thinking that the legislature used the word “may” in its imperative sense in the act now before us. There is little to support the contrary view except the bare use of the word itself. In these circumstances we cannot avoid the conclusion that the license must be issued upon a showing of literal compliance with every requirement that the law-making body saw fit to impose.

Third, it is contended in an amicus curiae brief that pari-mutuel betting upon dog races amounts to a lottery and is therefore prohibited by the constitution. Ark. Const., Art. 19, § 14. This question would ordinarily be presented by the case at bar, and for that reason we held in a per curiam order in Case No. 5-1143 that the same issue could not be litigated in the Pulaski chancery court during the pendency of the present case. It was then assumed that the issue would be fully explored in the suit now before us, but that assumption proves to have been incorrect. Neither party to this case argues the question of constitutionality or even seeks a determination of that issue.

Upon the record in this case, which goes off on demurrer, we cannot make a final decision as to the validity of the act. An analogous question was considered in Longstreth v. Cook, 215 Ark. 72, 220 S. W. 2d 433, where it was held that pari-mutuel betting upon horse races is not a lottery for the reason that the outcome of the race is not solely dependent on chance, elements of skill being involved. It will be seen from the opinion that this conclusion was based upon a finding of fact rather than an abstract issue of law. In the case at bar this fact question has not been developed at all, and without proof we have no means of determining whether the result of a greyhound race depends upon something other than pure chance. At present we have no alternative except to say that the act is ostensibly constitutional, for it has not been shown to be otherwise. A definitive ruling, however, is reserved for the future.

Affirmed.

MoPaddiN, J., concurs.


author: Paul Ward, Associate Justice.

text:
    Stewart-Morris Implement Co. v. Koenig.
    5-1062
    295 S. W. 2d 352
    Opinion delivered November 19, 1956.

      Norton & Norton, for appellant.

      Mann & McCulloch, for appellee.
   Paul Ward, Associate Justice.

Stated generally, the question presented by this appeal is: Does the trial court have discretionary power to set aside a judgment or decree rendered and entered at a previous term, where the motion to set aside the decree or judgment was filed during said previous term?

Most of the facts in this case are undisputed. On October 21, 1954, appellants filed a complaint in the Circuit Court of St. Francis County, asking judgment against appellee, F. S. Koenig, on a past due indebtedness arising out of the sale of merchandise. Appellee filed an answer on November 30, 1954, and a day or two later appellants filed a motion to make the answer more definite and certain. Following this there were several continuances or postponements until May 20, 1955 when the court entered a default judgment in favor of appellants and against appellee. On May 26, 1955 appellee filed a motion to vacate the judgment which had been rendered as before stated. On May 30,1955 the statutory term of the circuit court expired. Later appellants filed a response to the motion to vacate and evidence was taken on the motion on June 8, 1955. Finally on February 15, 1956 the court announced its decision that the ' judgment rendered on May 20, 1955 should be set aside, and it was so ordered.

The question for our decision in this case is further simplified by the fact that appellee disclaims any attempt to proceed under the provisions of Ark. Stats. § 29-506, et seq. which set out 8 grounds or conditions under which a trial court is empowered, after term time, to vacate or modify a judgment.

The briefs by both parties present an able review of former decisions of this court relative to the power of a trial court, exclusive of the power granted in the statute above referred to, to set aside its decrees rendered at a prior term. It is ably insisted by appellants that the trial court has no such power and they say we have so held, but it is just as ably insisted by appellee that the trial court does have this power and that it has never been explicitly denied by any of our decisions. After careful consideration of the arguments and decisions presented by each side we .have arrived at the conclusion that the trial court has no such power, on its own discretion, to set aside such judgments after the lapse of the term at which they were rendered, and particularly that the trial court had no power in this case to set aside its judgment which was rendered in favor of appellants on May 20, 1955.

The recent decision of this court in the case of Dobbs v. Dobbs, 225 Ark. 397, 282 S. W. 2d 812, rendered October 17, 1955, is clearly in point and sustains appellants’ contention in this case. There, a default divorce decree was entered during the April term of the court, and during the same term of the court the appellee filed a motion to set aside the decree. This motion was not presented to the court until the October term, at which time the chancellor set aside its original decree. On appeal this court reversed the trial court, using this language: “Although the appellee’s motion was filed during the April term of the court, the court’s discretionary power to grant the motion ended with the lapse of the term and could not be revived even by consent. ’ ’ Appellee attempt to detract from the force and applicability of the Dobbs holding as applied to the facts in the case under consideration by calling to our attention that the cases cited in the Dobbs opinion bear only on the question of consent. It seems to us however that if the trial court has no power or authority “even by consent” it is all the more apparent that the trial court would have no such power in the absence of the consent of the litigants.

Authority for the conclusion reached in the Dobbs case, supra, is found in many of our former decisions. In Coulter v. Martin, 139 S. W. 2d 688, (not reported in the Arkansas Beports) it was stated: “The contention of appellant is that the decree of January 24 became final when the term expired April 23 and that the court could not, at a subsequent term, modify the decree except in a maimer provided by law.” In reply the court said: “Appellant correctly states the law to be that courts lose jurisdiction of judgments and decrees with lapse of the term at which they were rendered.” In Raymond v. Young, 211 Ark. 577, 201 S. W. 2d 583, it was said: “The court lost control over the decree of July 23, 1946 with the ending of the April, 1946 term of court, and was without authority to vacate that decree at a subsequent term except in the manner, and upon the grounds, specified in Section 8246 and 8248, Pope’s Digest, (Ark. Stats. § 29-506 and § 29-508) or by bill of review under the chancery practice. Many other cases could be cited to the same effect.”

Appellee however interprets other decisions of this court as being in conflict with the rule which we have above announced but we think they are distinguishable in principle or fact. In Metz v. Melton Coal Co., 185 Ark. 486, 47 S. W. 2d 803, the court set aside a default judgment after the term at which it was rendered where the motion was filed during term time. Apparently however the court in that case rested its decision on a statute which is not applicable here, as it appears from this language used by the court: “Our statute, however, expressly provides that a chancellor may deliver opinions and make and sign decrees in vacation in causes taken under advisement by him at a term of the court, and he may do this by the consent of the parties . . . ” There is language used in the case of Wright v. Ford, 216 Ark. 55, 224 S. W. 2d 50, which appears to support the contention of appellee, but the final determination of the case was in accord with the Dobbs case, supra. Another case which might seem to support appellee’s contention is Young v. Young, Guardian, 201 Ark. 984, 147 S. W. 2d 736, but it was distinguished in the WrigM case, supra, on the ground that a verified motion to vacate the judgment was filed during term time. Whether that distinction is valid it is not necessary for us to say at this time. The petition to vacate in the case under consideration was also verified but, as we see it, that circumstance is immaterial. The reason is that a verified petition could only show a partial compliance with the statutory procedure required under Ark. Stats. § 29-506, referred to above, but appellee in this case disavows any intention or proceeding under that statute.

It is our conclusion therefore that the rule announced in the Dobbs case, supra, is controlling here, and that the trial court had no power or authority on February 15, 1956, to set aside its judgment rendered at a prior term of court on May 20,1955, on a motion which was filed during said prior term of court.

Reversed.


text:
    Thomason v. Thomason.
    5-1086
    295 S. W. 2d 622
    Opinion delivered November 26, 1956.

      O. W. Lookadoo, for appellant.

      M. J. Thomason, pro se.
   Lee Seamster, Chief Justice.

This is an action by the appellant against the appellee for divorce. The grounds alleged in the complaint are that appellee had offered such personal indignities to appellant as to render his condition in life intolerable. The case was heard before the Clark Chancery Court on March 12, 1956. At the conclusion of appellant’s testimony and evidence the appellee demurred to the evidence by oral motion, whereupon the trial court sustained the demurrer and dismissed the case for want of equity. This appeal follows.

The appellant is 23 years of age and appellee is 21 years old. The parties were married June 24, 1950, and they separated January 8, 1956. During four and one-half years of this marriage the appellant has served in the United States Armed Services.

Appellant testified that the difficulty between the parties arose shortly after he entered the armed services. The substance of appellant’s testimony was to the effect that his wife was “running around with every Tom, Dick and Harry” while he was serving in the armed services outside of the State or while he was serving overseas; that when they lived together she nagged him all the time, would not let him out of her sight; that she would not clean the house and wanted appellant to wait on her hand and foot.

Appellant further testified that he was presently stationed at an air base in California and his wife, the appellee, had been living in Pike County, Arkansas during a great majority of the time that he had been in service; that he came home on furlough in January, 1956, and told his wife that he was through with her and would not take her back to California with him; that appellee told his mother she would kill him before she would let him return to California without her; that appellee packed her bags and went home to her mother but later returned and started nagging him again.

In response to questioning on cross-examination appellant admitted that he had been dating a woman while stationed in California; that he did not plan to marry this woman after he procured a divorce; that the appellee knew about his affair with this other woman and she packed her bags and left him while he was home on furlough in January, 1956; that he immediately thereafter filed the instant suit for divorce.

Appellant’s mother testified that appellee lived at her home part of the time that appellant has been in service; that appellant wrote her that he wanted a divorce from appellee; that she and appellee went to see an attorney to see if they could keep her son from procuring a divorce; that she changed her mind about the divorce after appellee threatened to kill her son if he did not take appellee back to California with him; that their home life was not very peaceful, appellee fussed at appellant a lot and wanted Mm to wait on her; that she did not think they could ever live together and he happy; that appellee’s actions were all right wMle she lived with her.

We think tMs case is governed by the rule laid down in the ease of Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225. There we said: “By the overwhelming weight of authority it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if Ms evidence when so considered fails to make a prima facie case.”

Viewed from tMs angle we hold the appellant did make a prima facie case. Coffey v. Coffey, 223 Ark. 607, 267 S. W. 2d 499 and cases there cited. The appel-lee should be permitted to go forward with her evidence. The court can better decide the case when all the facts have been developed.

Beversed and remanded for further proceedings.